Tag Archive for: Lugo v. Holder

David Isaacson

Non-Retroactivity of BIA Precedent Decisions: De Niz Robles v. Lynch and other Recent Court of Appeals Rulings

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Earlier this year, in Zombie Precedents, the Sequel, I discussed how the Second Circuit’s April 2015 decision in Lugo v. Holder exemplified a better way of dealing with precedent decisions that had been overturned by a court.  As I noted in that blog post, the Second Circuit remanded Lugoto the BIA not only to deal with the issue raised by the overturned precedent, but also to deal with a related question regarding the retroactivity of the BIA’s decision in Matter of Robles-Urrea.  In that regard, the Second Circuit’s decision in Lugoforms part of an interesting trend regarding limits on the retroactivity of BIA decisions, most recently exemplified by the Tenth Circuit’s decision last week in De Niz Robles v. Lynch.

The issue in De Niz Robles concerned the interaction of INA §245(i), 8 U.S.C. §1255(i), with INA §212(a)(9)(C)(i)(I), 8 U.S.C. §1182(a)(9)(C)(i)(I).  The former provision, as has been discussed previously on this blog in a September 2010 post by Cyrus D. Mehta, allows adjustment of status by certain applicants who have entered without inspection, or are otherwise disqualified from adjustment under INA §245(a) and (c), if they are “grandfathered” as the principal or derivative beneficiaries of appropriate visa petitions or labor certification applications filed prior to April 30, 2001.  The latter provision declares inadmissible those who have been unlawfully present in the United States for a year or more and have subsequently re-entered without inspection, subject to a potential waiver which must be sought 10 years after one’s last departure from the United States.  These provisions, as the 10th Circuit noted in De Niz Robles, are in some tension with one another.

Approximately ten years ago, the Tenth Circuit held in Padilla-Caldera v. Gonzales (Padilla-Caldera I), 426 F.3d 1294 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237 (10th Cir. 2006), that §245(i) prevailed over §212(a)(9)(C)(i)(I), such that Mr. Padilla-Caldera could adjust status under §245(i) despite having been unlawfully present for over a year, left the United States in order to seek an immigrant visa, and ultimately re-entered without inspection.  The BIA then held differently in Matter of Briones, 24 I&N Dec. 355 (BIA 2007), finding that inadmissibility under §212(a)(9)(C)(i)(I) prevented §245(i) adjustment.  The Tenth Circuit, in Padilla-Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140 (10th Cir. 2011), deferred to this BIA decision pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and National Cable & Telecommunications Ass’n v. Brand X Internet Services (“Brand X”), 545 U.S. 967 (2005), finding it to be a reasonable interpretation of ambiguous statutory language.

In the meantime, however, between the time of Padilla-Caldera I and Matter of Briones, Mr. De Niz Robles had applied for adjustment of status under §245(i) based on Padilla-Caldera I.  His application took so long to process that it was adjudicated after Padilla-Caldera II, and the BIA, applying that decision and Matter of Briones, denied Mr. De Niz Robles’s application.  He argued that this was an inappropriately retroactive application of Matter of Briones to an application filed before that decision was issued.  The Tenth Circuit agreed.

As the Tenth Circuit pointed out, when Mr. De Niz Robles filed his application in 2007, he had the option of instead leaving the United States, and serving out the ten-year period before he could apply for a waiver of his inadmissibility under INA §212(a)(9)(C)(i)(I).  In reliance on the case law as it existed at that time, specifically Padilla-Caldera I, he chose to apply for adjustment of status instead.  The BIA, by applying Matter of Briones to Mr. De Niz Robles six years later in 2013, and defending that position on appeal in 2015, had put Mr. De Niz Robles in the position of having lost years of time that he could have spent towards the ten-year waiver qualification period—by now, he would have served out eight of the required ten years and been only two years away from being able to apply for a waiver, had he left.  This, the Tenth Circuit said, was retroactive application of the Briones decision, and was not permissible.

When the BIA or a similar agency tribunal acts to overturn an existing decision via Brand X, the Tenth Circuit decided, it should be treated for retroactivity purposes similarly to an agency that declares its new policy through rulemaking.  Although retroactive rulemaking is sometimes permitted, it is disfavored.  Applying the factors that govern such a retroactive agency rulemaking, the Tenth Circuit determined that the reasonableness of Mr. De Niz Robles’s reliance on Padilla-Caldera I, and the dire consequences to him if the BIA’s ruling was allowed to stand, weighed particularly strongly in favor of finding that Briones should not be applied to him.

In this way, De Niz Robleswent beyond what Lugohad done, flatly finding that it would be inappropriate to give retroactive effect to the BIA’s ruling rather than merely remanding for further explanation of the point.  This is partly because the context made clearer in De Niz Roblesthat there had in fact been a retroactive ruling.  The Second Circuit in Lugo had asked the BIA to address, among other factors, “whether its holding in Matter of Robles-Urreawas a departure from prior law.”  Lugo, slip op. at 5.  In De Niz Robles, the Tenth Circuit did not need to defer to the BIA on the analogous question, but was able to resolve it on its own: it was quite clear that Briones was a departure from prior law, at least within the jurisdiction of the Tenth Circuit, where it was contrary to Padilla-Caldera I.

The Court of Appeals for the Ninth Circuit followed a similar path to the Tenth in Acosta-Olivarria v. Lynch, decided less than two months before De Niz Robles, on August 26, 2015.  Like the Tenth Circuit, the Ninth had, prior to Matter of Briones, issued a decision allowing §245(i) adjustment despite inadmissibility under INA §212(a)(9)(C)(i)(I): Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006).  Like the Tenth Circuit, after Briones, the Ninth Circuit had overruled its decision, in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), deferring to the BIA under Brand X.  And like Mr. De Niz Robles, Mr. Acosta-Olivarria had applied for adjustment of status after his Circuit case law indicated he could do so, and before the BIA and Circuit told him he could not.  The bottom line was the same in Acosta-Olivarria as in De Niz Robles: the Ninth Circuit held, over one judge’s dissent, that the BIA’s ruling in Briones could not be applied retroactively to Mr. Acosta-Olivarria, and so an immigration judge’s order granting him adjustment of status, which had been set aside by the BIA, was reinstated.

De Niz Robles, Acosta-Olivarriaand Lugoare not the only relatively recent decisions to reject or cast doubt on retroactive application of a BIA ruling.  The Court of Appeals for the Seventh Circuit also did this in its July 2014 decision in Velasquez-Garcia v. Holder, 760 F.3d 571 (7th Cir. 2014).  There, the Seventh Circuit rejected retroactive application of the BIA’s decision in Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), interpreting the “sought to acquire” language of the Child Status Protection Act (CSPA).
As discussed in more detail by a numberof postson this blogand articleson our firm’s website, INA §203(h)(1)(A), added by section 3 of the CSPA, requires that a child have “sought to acquire” lawful permanent residence within one year of visa availability in order to take advantage of protections under the CSPA that fix the child’s age for purposes of derivative visa eligibility  at a point younger than that child’s actual biological age.  The BIA held in Matter of O. Vasquez that absent “extraordinary circumstances”, this provision could only be satisfied by the actual filing of an application for adjustment of status or of analogous forms and fees used to apply for an immigrant visa from the Department of State.  (USCIS subsequently issued an interim Policy Memorandum elaborating on what it would consider to be extraordinary circumstances.)  Prior to O. Vasquez, however, the BIA had in several non-precedential decisions been more lenient, allowing a broader set of “substantial steps” towards the obtainment of permanent residence to qualify as seeking to acquire for CSPA purposes.  As discussed in a previous post on this blog, for example, the BIA’s October 2010 unpublished decision in Matter of Murillo and other pre-2010 cases allowed such steps as hiring an attorney to meet the seeking-to-acquire requirement.

The Seventh Circuit in Velasquez-Garciaheld that it would not be appropriate to apply the stricter O. Vasquez standard to those who may have complied with the prior, laxer standard of seeking to acquire before O. Vasquez was issued.  As the Court of Appeals explained: “In light of the state of the law at the critical time, a reasonable person reasonably could have assumed that the [CSPA] did not require him to file an application within one year.”  Given the immense burden that applying the new rule retroactively would have imposed on Velasquez, and the tension between the effect of retroactive application and the remedial purpose of the CSPA to ameliorate the effect of administrative delays – among which the Seventh Circuit included the eight-year delay by the BIA before promulgating precedential guidance regarding “sought to acquire” in O. Vasquez – the Seventh Circuit held that Mr. Velasquez-Garcia should be permitted to proceed under the standard in effect prior to O. Vasquez.

These sorts of retroactivity issues can be expected to continue to arise in the future as the BIA aggressively uses its policymaking interpretative authority under Chevron and Brand X, at least when that authority is used to reinterpret a standard unfavorably to immigrants.  (Changes in a rule which are more favorable to those affected by that rule are not the sort which raise retroactivity concerns under the case law, since allowing someone to apply for a benefit from which he or she previously was precluded does not raise the same unfairness concerns as a change in the other direction.)  Under such circumstances, attorneys and clients should be alert for the possibility that the less-favorable BIA precedent may not apply retroactively, particularly to those who could potentially have relied on the prior state of the law.  The issue of retroactivity is often a complicated one, but it is worth exploring in appropriate cases.

David Isaacson

ZOMBIE PRECEDENTS, THE SEQUEL: HOW RECENT DECISIONS OF THE SECOND CIRCUIT AND THE BIA POINT TO A BETTER WAY OF DEALING WITH PRECEDENT DECISIONS THAT HAVE BEEN VACATED BY A COURT

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In my October 2014 post The Walking Dead: Why Courts of Appeals Should Not Defer to BIA or Attorney General Precedent Decisions that Have Already Been Vacated by Another Court of Appeals, I discussed why such vacated “zombie precedents” should not be given deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), by Courts of Appeals that address subsequent unpublished BIA decisions purporting to rely on them.  Recent decisions of the Court of Appeals for the Second Circuit and of the Board of Immigration Appeals (“BIA”) provide additional support for that suggestion.

On April 9, 2015, the Court of Appeals for the Second Circuit issued its opinion in Lugo v. Holder.  In that case, Ms. Lugo disputed whether her 2005 conviction for misprision of a felony under 18 U.S.C. §4 constituted a crime involving moral turpitude (“CIMT”).  She had been found barred from cancellation of removal based on the Immigration Judge’s ruling that misprision was indeed a CIMT, as the BIA had held in Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006).  The BIA had affirmed the Immigration Judge’s ruling in an unpublished decision.

As the Second Circuit discussed in Lugo, the BIA had originally held in Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968; BIA 1966) that misprision of felony was not a CIMT.  In Matter of Robles-Urrea, however, the BIA agreed with the decision of the Eleventh Circuit in Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), to the effect that misprision of felony under 18 U.S.C. §4 was in fact a CIMT, and overruled Matter of Sloan in relevant part.  Subsequently, the Court of Appeals for the Ninth Circuit vacated Matter of Robles-Urrea in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), and held that misprision of felony was not categorically a CIMT.  (The complicated history of the case law regarding whether misprision of felony is a CIMT was also discussed in Cyrus D. Mehta’s March 2014 post on this blog, Was the Attorney Really Ineffective in Kovacs v. United States?.)

The Second Circuit therefore held in Lugo that it was “left to wonder whether, going forward, the Board wishes to adopt the Ninth Circuit’s rule or the Eleventh Circuit’s.” Lugo, slip op. at 3-4.  It concluded that “it is desirable for the Board to clarify this matter in a published opinion.”  Lugo, slip op. at 4.  The Second Circuit remanded to the BIA to enable to answer both this question and a related question regarding retroactivity: that is, whether Matter of Robles-Urrea could appropriately be applied to Ms. Lugo even if the BIA otherwise wished to follow it, given that Ms. Lugo had pled guilty prior to the issuance of that published opinion.

One way to look at what the Second Circuit did in the first portion of its remand in Lugo is as an admirable refusal to defer to a zombie precedent.  Having been vacated by the Ninth Circuit in Robles-Urrea v. Holder, the BIA decision in Matter of Robles-Urrea fits the description of a zombie precedent as discussed in my post The Walking Dead.  It had been cancelled, rescinded, by a competent court, and thus, since “vacatur dissipates precedential force,” In re: Bernard Madoff Inv. Securities LLC, 721 F.3d 54, 68 (2d Cir. 2013), it was properly seen as “not precedent.”  Asgeirsson v. Abbott, 696 F.3d 454, 459 (5th Cir. 2012).  The non-precedent decision in Lugo’s own case, meanwhile, was not entitled to deference because, as the Second Circuit had previously held, in Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir. 2007), “a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference.”  The Second Circuit therefore properly vacated the nonprecedential decision in Lugo’s case and remanded to the BIA for the issuance of a precedential decision.  That is, the Second Circuit did in Lugo essentially what I had suggested in The Walking Dead, and earlier in Burning Down the House: The Second and Third Circuits Split on Whether Arson Not Relating to Interstate Commerce is an Aggravated Felony, that it should have done in Luna Torres v. Holder, No. 13-2498 (August 20, 2014).  Hopefully, this may be the start of a trend of Courts of Appeals not deferring to zombie precedents, but instead remanding to the BIA for further precedential analysis of whether the BIA wishes to follow in the footsteps of a prior precedent decision vacated by another Court of Appeals, or instead wishes to accede to the Court of Appeals decision which vacated that prior precedent.

The Second Circuit’s decision in Lugo is not the only recent development that I would submit gives support to my previously expressed views regarding zombie precedents.  As discussed in my prior post, the BIA has been known to reverse course and abandon a precedent following its rejection by one or more Courts of Appeals.  Earlier examples included Matter of Silva, 16 I&N Dec. 26 (BIA 1976), where the BIA acquiesced in the Second Circuit’s decision in Francis v. INS, 532 F.2d 268 (2d Cir. 1976) (regarding the availability of relief under former INA §212(c)) rather than insisting on its own contrary decision in Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971), and Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), where the BIA overruled Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005) (regarding the exercise of portability under INA §204(j) in immigration court proceedings), after its rejection by several Courts of Appeals, including the Court of Appeals for the Fourth Circuit in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007).  I acknowledged in The Walking Dead that the BIA has in some instances made a precedential choice to reaffirm the reasoning of a prior precedent even after its rejection by multiple circuits, and gave as an example Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012): in that case, the BIA reaffirmed Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), after its holding regarding the ineligibility of certain Lawful Permanent Residents for waivers of inadmissibility under INA §212(h) had been rejected by multiple Courts of Appeals, and indicated that Koljenovic would continue to be followed in circuits that had not rejected it.  The BIA has now changed its mind on that point.

In Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015), decided on May 12, the BIA withdrew E.W. Rodriguez and  Koljenovic in light of the rejection of the theory underlying them by nine Courts of Appeals.  The immigration court proceedings in Matter of J-H-J- had taken place within the jurisdiction of the Court of Appeals for the Eighth Circuit, which had, in Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014), accepted the BIA’s reasoning in E.W. Rodriguez and  Koljenovic as a reasonable interpretation of the statute.  Thus, the BIA was free to reaffirm E.W. Rodriguez and  Koljenovic in the case if it so wished.  However, given “the overwhelming circuit court authority,” Matter of J-H-J-, 26 I&N Dec. at 564, and the importance of “uniformity in the application of the immigration laws”, id. at 565 (citing Matter of Small, 23 I&N Dec. 448, 450 (BIA 2002)), the BIA instead held that “section 212(h) . . . only precludes aliens who entered the United States as lawful permanent residents from establishing eligibility for a waiver on the basis of an aggravated felony conviction.” Matter of J-H-J-, 26 I&N Dec. at 565.

Strictly speaking, E.W. Rodriguez and  Koljenovic were not zombie precedents as I have defined that term, never having been themselves vacated by a court.  However, the BIA’s overruling of those precedents in Matter of J-H-J- is, like Matter of Silva and Matter of Marcal Neto before it, an example of the BIA’s willingness to reconsider its own precedent in light of contrary appellate case law from outside the circuit having appellate jurisdiction over the case at hand.

Against this background, it makes increasingly little sense for courts to implicitly assume that the BIA would necessarily insist on following in the footsteps of a precedent decision which has already been vacated by a Court of Appeals.  Rather than giving deference to a zombie precedent, the Courts of Appeals should remand to the BIA for reconsideration of whether it wishes to follow in the footsteps of that precedent, as the Second Circuit did in in Lugo.