Tag Archive for: Chevron deference

Cyrus Mehta

Scialabba v. Cuellar de Osorio: Does the Dark Cloud Have a Silver Lining?

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By Cyrus D. Mehta and David A. Isaacson

On June 9, 2014, the Supreme Court issued its ruling in Scialabba v. Cuellar de Osorio. (The case had previously been known as Mayorkas v. Cuellar de Osorio before Lori Scialabba was appointed as Acting Director of USCIS, replacing former Director Alejandro Mayorkas.)  The Court ruled in Cuellar de Osorio that the BIA’s previous interpretation of the Child Status Protection Act (CSPA), as set out in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), was a reasonable interpretation of an ambiguous statute.  In particular, the Court deferred to the BIA’s narrow interpretation of INA §203(h)(3), 8 U.S.C. §1153(h)(3), severely limiting which derivative beneficiaries of visa petitions could retain their parents’ priority dates.  This is a disappointing decision, but the details of the opinions in Cuellar de Osorio do leave room for some hope.

As discussed in several severalpreviousposts onthis blog, INA §203(h)(3) provides for “automatic conversion” in the cases of certain beneficiaries of preference visa petitions whose age, even as adjusted under the CSPA to account for the time taken to process the visa petition, is determined to be above 21.  Some principal and derivative beneficiaries, according to the statute, will under these circumstances have their petitions automatically converted to the appropriate category, and retain the original priority date.  The question in Cuellar de Osorio and Matter of Wang was who gets to benefit from this automatic conversation.  The en banc Court of Appeals for the Ninth Circuit in Cuellar de Osorio, as well as the Court of Appeals for the Fifth Circuit in Khalid v. Holder, had argued for a broad interpretation which allowed all derivative beneficiaries to benefit, as at least some of the language of the statute seemed to suggest.  The BIA in Matter of Wang, as well as the Court of Appeals for the Second Circuit in Li v. Renaud and an earlier Ninth Circuit panel decision in Cuellar de Osorio, had chosen narrower approaches, which in effect allowed automatic conversion and priority date retention only for the principal and derivative beneficiaries of family 2A preference petitions, not the derivative beneficiaries of other categories of preference petitions.  The Supreme Court took the Cuellar de Osorio case to resolve this disagreement.

There was no single Supreme Court majority opinion in Cuellar de Osorio, but a total of five justices accepted the BIA’s narrow interpretation of the statute as set out in Matter of Wang, for two different sets of reasons.  The plurality opinion was written by Justice Kagan, and supported by Justices Kennedy and Ginsburg.  Chief Justice Roberts, joined by Justice Scalia, authored an opinion concurring in the judgment, but for somewhat different reasons.  Justices Sotomayor and Alito authored dissenting opinions; Justice Sotomayor’s dissent was joined by Justice Breyer in its entirety and by Justice Thomas except with regard to one footnote.

To appreciate the different opinions in Cuellar de Osorio, it is helpful to review the text of §1153(h)(3), quoted in the opinion of the Chief Justice and in a footnote to the plurality opinion.  It states:

If the age of an alien is determined under paragraph [1153(h)](1) [the CSPA provision the adjusts the age of a preference petition beneficiary to compensate for elapsed processing time] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

The different opinions in Cuellar de Osoriotook different views of what Congress may have meant in prescribing that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

Justice Kagan’s plurality opinion described §1153(h)(3) as “Janus-faced”.  Kagan slip op. at 14.  The first half of the provision, she said, looks toward a broader interpretation of the sort supported by the Ninth Circuit, but the second half describes a remedy, automatic conversion, which Justice Kagan and the plurality saw as most naturally applying only when the new petition to which automatic conversion would occur would have the same petitioner and same beneficiary.  Given this “internal tension”, Justice Kagan said, the BIA was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  As Justice Kagan and the plurality saw it, there are “alternative reasonable constructions” of §1153(h)(3), “bringing into correspondence in one way or another the section’s different parts.  And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.”  Kagan slip op. at 14.  As the plurality opinion explained in its conclusion:

This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.

Kagan slip op. at 33.

Chief Justice Roberts, joined by Justice Scalia, reached essentially the same conclusion as the three-Justice plurality led by Justice Kagan, but for different reasons.  Concurring in the judgment, the Chief Justice wrote that he did not see “conflict, or even internal tension . . . in section 1153(h)(3).”  Roberts slip op. at 2.  Rather, he “d[id] not think the first clause points to any relief at all.”  Id.at 3.  Instead, he described the second clause of §1153(h)(3) as “the only operative provision.”  Id.at 3-4. In that only operative provision, he took the view that beyond certain basic requirements, “Congress did not speak clearly to which petitions can “automatically be converted.”  Id. at 4.

The dissenting Justices, in contrast, were of the view that even if there was some ambiguity in the statute, it was not sufficient to justify the interpretation that the Board adopted in Matter of Wang.  While “Section 1153(h)(3) is brief and cryptic” and “may well contain a great deal of ambiguity, which the [BIA] is free to resolve,” Justice Alito wrote, it was at least clear that “the alien’s petition shallautomatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”  Alito slip op. at 2 (emphasis added in original).  The BIA, he contended, was “not free to disregard this clear statutory command.”  Id.  Justice Sotomayor, as well, argued in her dissent that because a reading of the statute was possible that gave effect to both the automatic conversion language and the statute’s broad description of who was eligible for automatic conversion, that reading should have been followed.  Because there were potential interpretations that “would treat §1153(h)(3) as a coherent whole,” she said, “the BIA’s construction was impermissible.”  Sotomayor slip op. at 9

On the surface, the Supreme Court’s decision in Cuellar de Osorio is obviously disappointing for a great many immigrants who were hoping to recapture priority dates of petitions initially filed for their parents through automatic conversion.  Aged-out children who have waited patiently for many years for their parent’s priority date to become current are told that they must now go back to the beginning of the line on a new petition filed by their parent under the Family 2B preference—which for most of the world has a backlog of more than seven years as of the June 2014 Visa Bulletin, and is backlogged many years more for those chargeable to Mexico or the Philippines.  While it is an unfortunate decision from that perspective, however, Cuellar de Osorio does contain some seeds of hope for better outcomes in the future.

The first seed of hope, with respect to §1153(h)(3) itself, is the latitude which the Court has provided for the executive branch to reconsider its decision.  Justice Kagan’s plurality opinion is careful to state that “we hold only that §1153(h)(3) permits—not that it requires—the Board’s decision to so distinguish among aged out beneficiaries.”  Cuellar de Osorio slip op. of Kagan, J., at 21.  The concurring opinion of Chief Justice Roberts and Justice Scalia is not as explicit in this respect, but it describes its disagreement with the plurality as involving “a different view of what makes this provision ambiguous under Chevron” rather than going to the question whether the provision is ambiguous at all. Indeed, the Chief Justice criticized Justice Kagan’s “Janus-faced” metaphor of §1153(h)(3). “But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice.” Id. at 2.   Thus, a majority of the Court agrees that the meaning of §1153(h)(3) is an ambiguity subject to Chevron deference, rather than suggesting, as the Second Circuit had done in Li v. Renaud, that a narrow reading of §1153(h)(3) is compelled by the statute.

When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it. Thus, the Court’s description of §1153(h)(3) as an ambiguous statute subject to Chevrondeference to the BIA’s interpretation implies that the BIA could, even after Cuellar de Osorio, reverse its position in Matter of Wang.  So too could the Attorney General, on whose behalf the BIA ultimately acts, go against Matter of Wang and adopt a broader interpretation of §1153(h)(3).  As the INA provides, within the executive branch, “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”  INA §103(a)(1), 8 U.S.C. §1103(a)(1).  Ultimately, it is within the power of Attorney General Holder to save those beneficiaries who have waited in line for many years, and now find themselves pushed to the back of a new line that may be decades long.  Whether or not these results of the Wang interpretation affirmed in Cuellar de Osorio may be legally permissible, they are not desirable as a policy matter, and the Supreme Court has left the Attorney General the power to recognize this.  In light of the Obama Administration’s many noteworthy administrative reform measures in the face of Congressional inaction, the provisional waiver rule and Deferred Action for Childhood Arrivals being such examples, a broader interpretation of §1153(h)(3) would be consistent with these efforts.

Of course, Congress too could fix the problem, by redrafting the statute to make it clearer that all derivative beneficiaries whose adjusted age is over 21 can retain the principal beneficiary’s priority date.  This was done in section 2305(d)(5)(C) of  S. 744, the comprehensive immigration reform bill passed by the Senate, which unfortunately has not been brought to a vote in the House of Representatives.  But if Congress continues not to act, the executive branch has the power to remediate the unfairness of requiring those who have waited in line with their parents for many years to go to the back of a new line and start over from the beginning.

Another policy argument in favor of such a reversal of Matter of Wang which would be worth the consideration of the BIA or the Attorney General, or for that matter Congress, is that the Matter of Wang interpretation of §1153(h)(3), now affirmed in Cuellar de Osorio, reintroduces some of the arbitrariness which the enactment of the CSPA had sought to avoid.  The age-adjustment process under INA §203(h)(1), 8 U.S.C. §1153(h)(1), in effect subtracts from the adjusted age of a visa applicant the time during which a visa petition was pending.  If the adjusted age of a derivative applicant is under 21, the CSPA as interpreted in Wang and Cuellar de Osorio will allow the applicant to utilize a principal beneficiary parent’s priority date; otherwise, the benefit of the priority date will be lost entirely.  But that means that children whose parents were petitioned for on the same date, and whose parents’ priority dates become current simultaneously, may be treated in dramatically different fashion depending on how long it happened to take USCIS to process the petition on behalf of their parents during the time that no visa number was available.  The broader interpretation of §1153(h)(3) rejected by the BIA in Matter of Wang would have reduced this arbitrariness, by enabling even a child whose parent’s petition happens to be processed relatively quickly, and whose CSPA-adjusted age is therefore over 21 when the priority date becomes current, to enjoy some benefit from that petition and its priority date.

The potential positive implications of Cuellar de Osorio beyond the CSPA context are also worth considering.  As previously discussed in postsonthis blog and articles by co-author Cyrus D. Mehta and Gary Endelman regarding “The Tyranny of Priority Dates” and “Comprehensive Immigration Reform Through Executive Fiat”, the executive branch’s authority under Brand X can potentially be used as a force for good in the immigration context.  This occurred for example in Matter of Douglas, 26 I&N Dec. 197 (BIA 2013), where, as discussed in one of the aforementioned blog posts, the BIA chose not to follow an unfavorable decision by the Court of Appeals for the Third Circuit regarding procedures for acquisition of citizenship under former section 321(a) of the Immigration and Nationality Act.  If, as the plurality in Cuellar de Osorioindicates, tension between the apparent meaning of different statutory provisions is sufficient to activate the Chevronand Brand X authority of the executive branch even if one could conceive of a potential interpretation which could harmonize the different provisions (at the cost of some awkwardness), this will expand the power that the executive branch may have to use Chevron and Brand X for pro-immigration ends.

Take, for example, the proposal in “The Tyranny of Priority Dates” that the executive branch re-interpret INA §203(d) so that derivative family members do not consume additional visa numbers beyond those taken up by the principal beneficiaries of visa petitions, thus freeing up a greater quantity of visa numbers for use by others.  As discussed in that article, there are admittedly some statutory provisions which might be read as pointing against such an interpretation.  But there are also statutory provisions which pull in favor of such an interpretation, most notably the text of INA §203(d) itself when it states that a derivative family member is “entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”  INA §203(d), 8 U.S.C. §1153(d).  If family members must be provided with separate visa numbers, then how can one fulfill this command for the family members of the principal immigrant who receives the last available visa number in a fiscal year for a particular category—will they not inevitably be subject to a delay in their “order of consideration” that is inconsistent with §203(d)?  This tension, interpreted in line with the version of Chevron deference implemented by the Cuellar de Osorioplurality, would provide sufficient authority to reinterpret the priority-date system in a way that could significantly reduce the current backlogs in the visa preference categories.

Remarkably, Cuellar de Osorio was not decided on the usual conservative-liberal ideological lines as with many Supreme Court decisions. The pairings of justices who decided one way or the other are rather odd much like combining a full-bodied red Malbec with a delicate white fish –  Ginsburg and Scalia were part of the plurality that denied relief to children while Sotomayor and Thomas vigorously dissented. The outcome in this case is neither a liberal nor a conservative victory.  This could potentially give President Obama through his Attorney General some political cover if they decided to use Brand X as a force for good by reversing Matter of Wang. Of course, the government caused this in the first place by litigating all the way to the Supreme Court. Sceptics will rightly question why the government would change course after having gone so far. However, the Attorney General, through the BIA, has reversed course before. For example, in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), the BIA acquiesced to Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and allowed 212(c) relief for LPRs in deportation proceedings who had not previously departed and returned, despite its earlier contrary holdings in Matter of Francis and Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971). If Congress fails to  enact Congressional reform, it is likely that the Administration will endeavor to provide relief through further administrative measures. Our blog provides the Administration with a way to do so for children who were left out of the American Dream solely because they were unlucky to have aged out.

Cyrus Mehta

The Decline of Deference: BALCA Does Not Speak for the DOL

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By Gary Endelman and Cyrus D. Mehta

In the ongoing litigation over the authority of the Department of Labor (DOL) to promulgate H-2B prevailing wage methodology in the Third Circuit, Louisiana Forestry Ass’n v. Secretary of Labor, No. 12-4030, the DOL wrote a letter  stating that the Board of Alien Labor Certification Appeals’ decision in Island Holdings LLC, 2013-PWD-00002 (BALCA 3, 2012) did not represent the legal position of the Secretary of Labor. The DOL had issued increased prevailing wage determinations to an employer after it changed its wage methodology through an Interim Final rule that took effect on April 24, 2013. The order to increase wages was issued after the DOL had already certified the labor certification for the H-2B workers at a lower wage.  BALCA in Island Holdings invalidated the wage increases on the ground that there was no specific statutory or regulatory authority that would authorize DOL to increase the wage rate at an unknown future date.

The DOL’s letter to the Third Circuit disregarding the BALCA ruling in Island Holdings would have enormous implications on labor certification practice and administrative law. We credit Wendel Hall of C.J. Lake, counsel in the Island Holdings case, for alerting us to the significance of this issue and also bringing it to the attention of DOL itself.  If BALCA does not speak for DOL, is it necessary to exhaust administrative remedies before challenging a PERM denial in federal court? If BALCA does not speak for DOL, should the courts pay Chevron style deference to BALCA decisions? Can DOL ignore other BALCA decisions on PERM since BALCA does not speak for Secretary of Labor?

The Supreme Court established a two-step analysis in Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) for evaluating whether an agency’s interpretation of a statute it is entrusted to administer is lawful. Under Step One, the court must determine whether Congress has clearly spoken to the precise question at issue in the plain terms of the statute. If that is the case, there is no need for the reviewing court to delve any further.  Under Step Two, if the statute is silent or ambiguous, the reviewing court must determine whether the agency’s interpretation is based on a permissible construction of the statute.  A permissible interpretation of the statute need not be the best interpretation or even the interpretation that the reviewing court would adopt. Step Two is commonly known as Chevron deference where the reviewing court grants deference to the agency’s permissible interpretation of an ambiguous statute.

Still, Chevron deference cannot be accorded unless there is an agency construction of a statute to which the federal court must defer. DOL has now told the 3rd Circuit that BALCA does not speak for the Secretary of Labor since the administrative law judges on BALCA are only subordinate DOL employees. Therefore, an interpretation by BALCA does not represent the official view or understanding of the DOL. For this reason, one may never reach the question of deference since there is no agency finding or interpretation capable of commanding it. In United States v. Mead, 533 U.S. 218 (9th Cir. 2001), the Supreme Court held that not all agency interpretations qualify for Chevron deference, and deference is only accorded “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”    Using the Mead language or rationale, one can conclude that, since DOL has now decided that BALCA does not speak for the DOL, Congress has not delegated any interpretive authority to BALCA. Hence, no deference can or should be paid to any BALCA ruling.  Such a ruling would appear not to be entitled to deference

Even under the lower  standard in Skidmore v. Swift & Co, 323 U.S. 134 (1944) the weight accorded to an administrative interpretation or judgment “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those facts which give it power to persuade, if lacking power to control.”  If DOL does not think that BALCA speaks for the Secretary of Labor, using theSkidmore criteria, how can BALCA ever have the power to persuade? Not having that, any BALCA decision would not be invested with any deference under Skidmore.

Finally, in Auer v. Robins, 519 US 452 (1977), the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations. However, even under the Auer concept of deference, which gives federal agencies the right to interpret their own regulations, there would be no deference to a BALCA decision since the DOL has now told the Third Circuit that an opinion by BALCA is not an interpretation by the DOL but only an expression of what individual subordinate DOL employees think.

Since DOL does not think BALCA speaks for the Secretary of Labor, is there a need to exhaust administrative remedies before challenging a PERM labor certification denial in federal court? Moreover, if no deference to a BALCA decision is justified or required, can there be a failure to exhaust? We doubt it. If DOL does not think that BALCA speaks for the agency, how can an appeal to BALCA be mandatory despite 20 CFR 656.24(d)(e)(3) that advises an employer a failure to appeal to BALCA within 30 days constitutes a failure to exhaust. How can going to BALCA be a mandatory administrative remedy when BALCA speaks only for itself and not the DOL?  There is a conflict between this regulation and the DOL view in the 3rd Circuit Louisiana Forestry case. This regulation is key since, for Administrative Procedure Act purposes, only if exhaustion is required by an agency regulation can recourse to the federal courts be barred. Darby v. Cisneros, 509 US 137, 144-54 (1993). 

The four criteria set forth in Darby v. Cisneros in order to bypass an administrative appeal, are as follows:

  • Federal review has been brought pursuant to the APA;
  • There is no statute that mandates an administrative appeal;
  • Either: a) there is no regulation that mandates an administrative appeal; or b) if there is a regulation that mandates an administrative appeal, it also does not stay the agency decision pending administrative appeal; and
  • The adverse agency decision to be challenged is final for purposes of the APA.

BALCA cannot provide an administrative remedy to the parties concerned since its decisions do not represent the official view of the DOL. Rather than constituting “superior agency authority” to use the language of Section 10 (c ) of the APA, 5 USC 704, BALCA consists of a collection of subordinate DOL employees  in the view of the DOL itself. Since that is the case, BALCA “lacks the ability or competence to resolve the issue or grant the relief requested…” Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002).  

None of the various reasons most regularly advanced for the exhaustion doctrine apply here given the DOL repudiation of BALCA as the final expression of the DOL. The need to first appeal to BALCA does not promote administrative efficiency since it can be ignored by the DOL as the individual perspectives of subordinate employees. For the same reason, it will not avoid needless litigation or promote the conservation of judicial resources. When DOL agrees with BALCA, it accepts what BALCA says. When DOL disagrees, it can tell the court, as here, that BALCA does not speak for the DOL.  This is how and why the lack of deference is linked to the absence of any need to exhaust remedies.

Aggrieved employers and aliens may wish to directly seek review in federal court than seek review at BALCA after the DOL’s letter to the Third Circuit. Strategically, going directly into federal court may be advantageous if the plaintiff wished to challenge a regulation on constitutional grounds rather than waste time with BALCA, which may not have jurisdiction over such a challenge. Moreover, if the employer desires to file a new PERM application, and still seek review of the old denial, going to BALCA would preclude the filing of a new application until there was a final adverse decision. 20 CFR § 565.24(e)(6). The same prohibition does not apply if the aggrieved employer directly goes into federal court.

Finally, 20 CFR 656.26 does not require an alien to go to BALCA; indeed, the alien has no such right. In the labor certification context, the alien is not even informed of a right to appeal in contrast to the  notification of such right provided to an alien investor,  8 CFR 204.6(k), or fiancé(e) , 8 CFR 123.2 (k)(4). Then, under Darby, an alien ought to be able to get APA standing even if the employer does not seek review of the denial with BALCA, which in any event has been downgraded by the DOL.  The Sixth Circuit in Patel v. USCIS very recently held that an alien had standing to seek review of the denial of an I-140 petition as the alien’s interests are within the zone of interests protected by INA section 203(b)(3). See also Stenographer Machines v. Regional Administrator for Employment and Training, 577 F.2d 521 (7th Cir. 1978); Cf Ramirez v. Reich, 156 F.3d 1273 (DC Cir. 1998) (although alien has standing to sue on a denied labor certification, government’s motion to dismiss granted due to absence of employer’s participation in the litigation).  Given that the DOL has rendered BALCA irrelevant in its letter to the Third Circuit, aliens ought to be able to bolster their argument about seeking review of a denied PERM labor certification in federal court.

The DOL repudiation of BALCA as an authoritative voice calls into question the relevancy of BALCA itself. If BALCA does not speak for the DOL to a federal judge, how can it do so in any other context? Can BALCA represent the DOL in an administrative law sense only?  Is it possible for BALCA to be invested with a sense of finality only with respect to decisions on labor certification, both temporary and permanent, but to lose such imprimatur should the DOL go into court? To answer these questions, we would do well to cast our minds back to the reason that DOL created BALCA in the first place. At that time, the DOL’s administrative decisions were neither consistent nor uniform. So the DOL revised the regulations to create a Board of Alien Labor Certification Appeals (BALCA) in 1987 to replace the system of appeals to single administrative law judges within the DOL. The rule creating the BALCA said, “[T]he Board will enhance uniformity and consistency of decisions.” 52 Fed. Reg. 11218 (Apr. 8, 1987). A subsequent BALCA decision explained: “The purpose of the Board is to provide stare decisis for the immigration bar.” Matter of Artdesign Inc., 89–INA–99 (Dec. 5, 1989). Subsequently, however, these goals were not achieved, and the BALCA invented a device (the en banc decision) to resolve inconsistencies in BALCA decisions. The BALCA suffers from a strange defect: unlike the DHS and the BIA where regulations exist that make BIA decisions binding on all officers and employees of the Service and Immigration Judges, BALCA decisions cannot command unquestioning obedience from the federal agency it claims to represent. Yet, until today, both the regulators and the regulated assumed that BALCA spoke not merely or even primarily for the administrative law judges themselves but for the Department of Labor. Now, we are not so sure.

(Guest writer Gary Endelman is the Senior Counsel at FosterQuan)