Introduction: BIA Incorrect in Applying Matter of Briones Retroactively
In De Niz Robles v. Lynch, 803 F.3d 1165 (10th Cir. 2015) [PDF version], the Tenth Circuit held that the Board of Immigration Appeals (BIA) erred in applying its precedent decision in the Matter of Briones, 24 I&N Dec. 355 (BIA 2007) [PDF version] retroactively. The situation in the case involved an alien who was found to be barred from adjustment of status under section 245(i) of the Immigration and Nationality Act (INA) on account of his being subject to the 10-year bar of inadmissibility under section 212(a)(9)(C)(i)(I) in accordance with the Matter of Briones. This article will discuss the situation involved in this case, the reasoning behind the Tenth Circuit’s decision, and the broader implications of the decision going forward.
Note (4/7/2017): The decision in De Niz Robles was authored by Judge Neil Gorsuch. On April 7, 2017, Judge Gorsuch was confirmed and will be the 113th Justice of the Supreme Court of the United States.
Facts of the Case
The Tenth Circuit started by explaining the tension between sections 245(i) and 212(a)(9)(C)(i)(I) of the INA.
Section 245(i) allows certain aliens who entered the United States illegally to apply for adjustment of status, provided that they had an immigrant visa petition filed by a certain date. Please read our full article about LIFE Act adjustment of status to learn about the rules and regulations regarding section 245(i).
Enacted subsequent to section 245(i), section 212(a)(9)(C)(i)(I) renders an alien subject to a 10-year bar of inadmissibility if he or she accrues at least one year of unlawful presence in the United States and then departs. Please read our full article about unlawful presence bars to learn the rules and regulations regarding this provision.
The Tenth Circuit noted that one could read these provisions as rendering an alien otherwise eligible for section 245(i) adjustment of status who is also subject to the 10-year bar of inadmissibility to be seemingly “simultaneously eligible and ineligible for relief.”
In Padilla-Caldera v. Gonzales (Padilla-Caldera I), 426 F.3d 1294, 1300-01 (10th Cir. 2005) [PDF version], the Tenth Circuit held that 245(i) trumped section 212(a)(9)(C)(i)(I), and that an alien who was subject to the 10-year bar of inadmissibility could still be eligible for adjustment of status under 245(i). However, in 2007, the Board of Immigration Appeals (BIA) held in the Matter of Briones that if an alien is subject to the 10-year bar of inadmissibility, the alien is removable and ineligible for section 245(i) adjustment of status. The Tenth Circuit ultimately deferred to the BIA’s decision and reversed its 2005 decision in Padilla-Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140, 1153 (10th Cir. 2011) [PDF version].
In Padilla-Caldera II, the Tenth Circuit opted to follow the Matter of Briones by following two important Supreme Court decisions regarding administrative law. First, the Tenth Circuit applied “step two” of the test established by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct 2778, 81 L.Ed.2d 694 (1984) [PDF version]. This requires that where a statute administered by an executive agency is “ambiguous,” courts are required to defer to the policy choices of the executive agency to which Congress delegated “policy-making responsibilities” so long as the choice is “reasonabl[y]” consistent with the legislative scheme. The Tenth Circuit noted that National Cable & Telecommunications Association v. Brand X Internet Services (Brand X), 545 U.S. 967, 125 S.Ct. 2688, 162 Lae Ed.2d 820 (2005) [PDF version] required it to overrule Padilla-Caldera I in accordance with step two of the Chevron analysis.
The petitioner in this case met the requirements for section 245(i) adjustment and was subject to the 10-year bar of inadmissibility. In between Padilla-Caldera I and the Matter of Briones, the petitioner applied for adjustment of status under 245(i). Accordingly, he applied for adjustment of status under 245(i), rather than departing the United States to begin the clock on 10 years, with the understanding that Padilla-Caldera I would mean that he was not categorically ineligible for adjustment of status. However, his petition lingered for so long that both the Matter of Briones and Padilla-Caldera II were handed down before his petition for adjustment of status was adjudicated.
In 2013, the BIA found that the petitioner was ineligible for adjustment of status based on the retroactive application of its decision in the Matter of Briones. The petitioner asked the Tenth Circuit to find that the Matter of Briones could not be applied retroactively to his petition, and that he was accordingly eligible for adjustment of status under the rules that existed when he filed his petition.
Decision: Matter of Briones Cannot Be Applied Retroactively
The Tenth Circuit began by noting that at the time the petitioner applied for adjustment of status, he clearly possessed two options given his situation:
1. Apply for adjustment of status under section 245(i) while relying on Padilla-Caldera I, under which he would not be categorically ineligible for section 245(i) adjustment for being subject to the 10-year bar of inadmissibility;
2. Depart the United States to begin the clock on the 10-year waiting period outside the country.
The Tenth Circuit noted that had the petitioner been aware that he would be ineligible for section 245(i) at the time he made his decision to apply, he would have been able to depart the United States and only be two years away from the expiration of the 10-year bar at the time of the decision. Accordingly, the Tenth Circuit noted the real-world considerations that would come from applying the Matter of Briones retroactively.
The Court explained, citing the 1829 Supreme Court decision in Reynolds v. McArthur, 27 U.S. (2 Pet.) 417, 434, 7 L.Ed 470 (1829) [PDF version], that legislation is “rarely afforded retroactive effect.” Accordingly, legislation is generally applied prospectively, not retroactively, unless (quoting Reynolds) “the language of the act shall render such construction indispensable.”
Conversely, the Tenth Circuit explained that judicial decisions generally apply retroactively. After citing ample Supreme Court precedent to this effect,1 the Tenth Circuit suggested that the answer “lies in the fact that for civil society to function the people need courts to provide backward-looking resolutions for their disputes.”
The question therein lay in whether decisions by the BIA should be afforded retroactive effect. There is no question that the BIA is an “executive agency.” However, the Tenth Circuit noted that the Constitution did not anticipate the Executive “exercising [the authority to enforce the decisions of other branches] in a quasi-judicial tribunal empowered to overrule judicial decisions.” Accordingly, the Tenth Circuit did not find any clear answers to the question in the constitution. It noted the inherent tension of the BIA: the more the BIA acts like a judge, the stronger the case is for its decisions being afforded retroactive effect; whereas the more the BIA acts like a legislator, the stronger the case is for its rules only being afforded prospective effect.
Ultimately, the Tenth Circuit held that “second-order constitutional protections sounding due process and equal protection, as embodied in our longstanding traditions and precedents addressing retroactivity in the law” should attach to the BIA. The Court stated that “an agency operating under the aegis of Chevron step two and Brand X comes as close to exercising legislative power as it might ever get.” Accordingly, because Congress never authorized the retroactive application of the BIA’s policy decision in the Matter of Briones, the decision should not have retroactive effect.
To support its conclusion, the Tenth Circuit essentially looked at the BIA’s decision in the Matter of Briones as an example of the exercise of a legislative grant of rulemaking authority. It cited that the Supreme Court held in Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) [PDF version] that administrative rules will not be applied retroactively unless that power is “conveyed by Congress in express terms.”
The BIA argued that it did not change the law, but rather explained what the laws meant, and that accordingly the Matter of Briones should apply retroactively. However, the Tenth Circuit stated that while the BIA announced its rule in a “quasi-judicial proceeding,” it nevertheless “exploit[ed] the law’s ambiguity and exercise[d] its ‘delegated’ ‘policy-making’ authority to write a new rule of general applicability according to its vision of what the law should be.” Perhaps ironically, the Tenth Circuit noted that by exercising its Chevron step two and Brand X powers, the BIA “acts in substance … less like a judicial actor and … more like a legislative actor making new policy.”
Accordingly, the Tenth Circuit quoted from the Seventh Circuit decision in Velásquez-García v. Holder, 760 F.3d 571, 581 (7th Cir.2014) [PDF version]: “[Chevron step two and Brand X adjudication should be treated] no different[ly] from a new agency rule announced by notice-and-comment rulemaking … for purposes of retroactivity analysis.”
The Tenth Circuit also studied the case under SEC v. Chenery Corp., 332 U.S. 194 (1947) [PDF version], which held that the decisions administrative agencies may be afforded retroactive effect under certain circumstances. However, that decision required courts to balance the negative factors of granting retroactive application of a new rule against “the mischief of producing a result which is contrary to statutory design or equitable principles.” It found that the case for the retroactive application of the Matter of Briones was lacking here as well. Cherney allows for rules to be applied retroactively where (1) problems arise that the agency could not have reasonably foreseen and need to be solved retroactively; (2) an agency may not have “sufficient experience” with the issue “to warrant rigidifying its tentative judgment to a hard and fast rule”; or (3) the problem at hand may be “so specialized and varying in nature” that it is “impossible” to capture with a general rule. However, the Tenth Circuit found that none of these three factors, given the facts of the case, support the retroactive application of the Matter of Briones.
Accordingly, the Tenth Circuit granted the petitioner’s petition for review and remanded the case to the BIA for further proceedings.2
Conclusion: BIA Incorrect in Applying Matter of Briones Retroactively
In the particular sense, De Niz Robles v. Lynch prevents the BIA’s decision in the Matter of Briones from applying retroactively in areas covered by the Tenth Circuit. However, the decision sweeps more broadly, and discusses whether BIA decisions should be treated more like judicial decisions (where they may apply retroactively) or legislative decisions (where they are presumed to apply prospectively). The reasoning used by the Tenth Circuit may well apply broadly to other cases where the BIA intends for its decisions to have retroactive effect.
- e.g., Linkletter v. Walker, 381 U.S. 618, 622, 85 S.Ct. 1731, 14 L.Ed. 2d 601 (1965); Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)
- The Tenth Circuit also looked at the case under a five-factor balancing test for administrative rules that it established in 1983 in Stewart Capital Corp. v. Andrus, 701 F.2d 846 (10th Cir. 1983). The Tenth Circuit came to the same conclusions under Stewart Capital that it did under the analysis that we discuss in detail; that balancing factors did not weigh in favor of giving the BIA’s decision in the Matter of Briones retroactive effect.
