By David
A. Isaacson
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 Lugo
to 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 Lugo
forms 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and superseded on reh’g, 453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 Robles
went beyond what Lugo
had 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 Robles
that 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-Urrea
was 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-Olivarria
and Lugo
are 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 number
of posts
on this blog
and articles
on 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-Garcia
held 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.
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