BYBEE, Circuit Judge:
In National Cable & Telecommunications Ass'n v. Brand X Internet Services, the Supreme Court instructed federal courts to defer to reasonable agency interpretations of ambiguous statutes, even when those interpretations conflict with the prior holding of a federal circuit court. 545 U.S. 967, 982-83, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). That is the situation we confront here. In Acosta v. Gonzales, 439 F.3d 550, 553-56 (9th Cir.2006), we held that aliens who are inadmissible under § 212(a)(9)(C)(i)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(9)(C)(i)(I), are eligible for adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i), in spite of the latter section's requirement of admissibility. A year later, the Board of Immigration Appeals ("BIA") decided that such aliens are not eligible to apply for adjustment of status under § 245(i) in In re Briones, 24 I. & N. Dec. 355, 371 (BIA 2007). In this case, we must decide whether to defer to the agency's interpretation of the INA and overrule Acosta and, if so, whether the agency's interpretation may be applied to Garfias retroactively.
We conclude that we must defer to the BIA's decision, and we hold that the BIA's decision may be applied retroactively to Garfias. We thus deny his petition for review.
Francisco Javier Garfias-Rodriguez ("Garfias") is a native and citizen of Mexico. He unlawfully entered the United States in 1996 and briefly departed twice, first to visit his ailing mother in 1999 and then to attend her funeral in 2001. He reentered the United States without permission both times. In April 2001, Garfias's then-current employer filed an application for labor certification with the Oregon Employment Department on his behalf but later withdrew the application after he ceased working for that employer. Garfias married his wife Nancy, a United States citizen, in April 2002. He applied to adjust his status to that of a lawful permanent resident in June of 2002, paying a total of $1305 in fees. In 2004, United States Citizenship and Immigration Services issued Garfias a Notice to Appear ("NTA") charging him with removability under INA § 212(a)(6)(A)(i), as "[a]n alien present in the United States without being admitted or paroled," and § 212(a)(9)(C)(i), as an alien who has been "unlawfully present
In proceedings before an immigration judge ("IJ"), Garfias conceded removability on both grounds charged in the NTA. He requested relief in the form of adjustment of status and, in the alternative, voluntary departure. In July 2004, the IJ denied Garfias's application for status adjustment, holding that Garfias was inadmissible under INA § 212 and thus ineligible for adjustment under § 245(i). In a per curiam decision in March 2006, the BIA sustained Garfias's appeal. The BIA noted that "the Ninth Circuit, in whose jurisdiction this proceeding arises, held that an alien inadmissible under section 212(a)(9)(C)(i) of the Act could apply for adjustment of status under section 245(i) in conjunction with a request that the Attorney General retroactively consent to his reapplying for admission," and remanded the case to the IJ for reconsideration in light of those decisions. See Acosta, 439 F.3d at 556; Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004).
On remand, Garfias renewed his application for adjustment of status, but in November 2007 the IJ once again denied the request for adjustment. The IJ found that Garfias could not establish that his application was filed before § 245(i)'s expiration date of April 30, 2001.
The BIA dismissed his appeal in July 2009. It did not rule on the IJ's grounds for denying the application. Instead, the BIA noted that subsequent to the IJ's decision, it had issued In re Briones, 24 I. & N. Dec. at 371, which held that an alien could not seek status adjustment under § 245(i) if he was ineligible for admission under § 212(a)(9)(C)(i)(I). The BIA then explained that since this court had abrogated Perez-Gonzalez under a Brand X theory, see Duran Gonzales v. Dep't of Homeland Sec. (Duran Gonzales I), 508 F.3d 1227, 1241-42 (9th Cir.2007), the BIA could now apply the Briones rule to cases arising in the Ninth Circuit. It therefore dismissed the appeal, granted Garfias sixty days to voluntarily depart, ordered removal in the event that he failed to depart, and informed him that filing a petition for review would automatically terminate the grant of voluntary departure.
Garfias filed a petition for review with this court. He raised three arguments: (1) that Briones is not entitled to Chevron
Congress enacted § 245(i) in 1994 to provide an avenue for "aliens who entered without inspection but who have access to a visa (typically an immigrant spouse of a citizen) to legalize their status without leaving the country and incurring a long and needless separation from their family." Ramirez-Canales v. Mukasey, 517 F.3d 904, 907-08 (6th Cir.2008); see also Briones, 24 I. & N. Dec. at 359-60. However, the Attorney General is permitted to adjust an applicant's status under this section only if "the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence." 8 U.S.C. § 1255(i)(2)(A).
When § 245(i) was first enacted, aliens present in the United States who had entered without inspection were considered "deportable" aliens under former § 241(a)(1)(B) of the INA. See Briones, 24 I. & N. Dec. at 362-63 (citing 8 U.S.C. § 1251(a)(1)(B) (1994)). Thus, that provision did not implicate § 245(i)'s requirement that the alien be "admissible" to the United States. However, in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which "recharacterized" as "inadmissible" aliens who had previously been labeled "deportable" for entering the country without inspection. Briones, 24 I. & N. Dec. at 363. As a result, § 212 currently renders inadmissible "[a]ny alien who ... has been unlawfully present in the United States for an aggregate period of more than 1 year, ... and who enters or attempts to reenter the United States without being admitted." 8 U.S.C. § 1182(a)(9)(C)(i)(I). IIRIRA did not, however, address the effect of this change on the status adjustment provision of § 245(i).
In short, although § 245(i) ostensibly provides an avenue for aliens eligible to receive a visa but living illegally in the United States to adjust their status to that of a lawful permanent resident, requirement of "admissibility" seems to vitiate that purpose for some illegal aliens in light of the subsequent enactment of § 212(a)(9)(C). Congress has not explained how to handle an alien who is inadmissible under § 212(a)(9)(C)(i)(I) but otherwise qualified for adjustment of status under § 245(i).
In Perez-Gonzalez, we held that the inadmissibility provision of INA § 212(a)(9)(C)(i)(II)
The BIA subsequently issued In re Torres-Garcia, 23 I. & N. Dec. 866 (BIA 2006), accepting our invitation to provide "a more complete agency elaboration," Perez-Gonzalez, 379 F.3d at 794, of the conflict between these provisions of the INA. The BIA concluded that "the Ninth Circuit's analysis regarding the availability of a retroactive waiver of the ground of inadmissibility set forth at section 212(a)(9)(C)(i) contradicts the language and purpose of the Act and appears to have proceeded from an understandable, but ultimately incorrect, assumption regarding the applicability of 8 C.F.R. § 212.2." Torres-Garcia, 23 I. & N. Dec. at 873. The BIA noted that 8 C.F.R. § 212.2 "was not promulgated to implement current section 212(a)(9) of the Act," but "implement[ed] statutory provisions that were repealed by the IIRIRA." Id. at 874-75. It further noted that our decision in Perez-Gonzalez effectively allowed § 245(i) to function as a means to "circumvent the statutory 10-year limitation on section 212(a)(9)(C)(ii) waivers" by allowing aliens to "simply reenter[ ] unlawfully before requesting the waiver," given that "it is the alien's unlawful reentry without admission that makes section 212(a)(9)(C)(i) applicable in the first place." Id. at 876. The BIA noted that under our reading of § 212, an alien could obtain a "waiver nunc pro tunc even though such a waiver would have been unavailable to him had he sought it prospectively, thereby placing him in a better position by asking forgiveness than he would have been in had he asked permission." Id.
Next, in Acosta v. Gonzales, 439 F.3d at 556, we extended the reasoning of Perez-Gonzalez to INA § 212(a)(9)(C)(i)(I) — the provision at issue in this case — and held that aliens inadmissible under that section nonetheless remained eligible for adjustment of status under § 245(i). We emphasized that "Perez-Gonzalez appears to control the issue ... before us" and that "any attempt to distinguish the present case from Perez-Gonzalez based on the different grounds of inadmissibility involved would be unpersuasive." Id. at 554. We did not take note of the BIA's contrary
The following year, the BIA revisited the question we answered in Acosta and again rejected our reasoning. Briones, 24 I. & N. Dec. 355. It explained that § 212(a)(9)(C)(i)(I) applies only to aliens "who have departed the United States after accruing an aggregate period of `unlawful presence' of more than 1 year and who thereafter entered or attempted to reenter the United States unlawfully." Id. at 365-66. The BIA observed that § 212(a)(9)(C)(i)(I) could therefore trump § 245(i) without rendering the latter provision superfluous. Id. It noted that "in every other case where Congress has extended eligibility for adjustment of status to inadmissible aliens ... it has done so unambiguously, either by negating certain grounds of inadmissibility outright or by providing for discretionary waivers of inadmissibility, or both." Id. at 367. Accordingly, the BIA decided that despite our decision in Acosta, there was "little merit in the ... argument ... that it would be incompatible with the remedial purpose of section 245(i) to make adjustment of status unavailable to ... aliens [inadmissible under section 212]." Id. at 370. The BIA concluded that "aliens who are inadmissible under section 212(a)(9)(C)(i)(I) of the [INA] cannot qualify for section 245(i) adjustment, absent a waiver of inadmissibility." Id. at 371. Briones, however, explicitly declined to decide whether to apply its interpretation to cases arising in the jurisdiction of the Ninth and Tenth Circuits, id. at 371 n. 9, which had both reached contrary conclusions. See Padilla-Caldera v. Gonzales, 453 F.3d 1237 (10th Cir.2005).
That same year, we began the process of reevaluating our prior decisions in light of the BIA's decisions in Torres-Garcia and Briones. First, we addressed the effect of Torres-Garcia in Duran Gonzales I, 508 F.3d 1227. Applying the framework established by Chevron and Brand X, we deferred to the BIA's interpretation of § 212(a)(9)(c) in Torres-Garcia, and overruled Perez-Gonzalez. Id. at 1242. We found that in Perez-Gonzalez we had determined that the relevant sections of the INA were ambiguous and that the BIA had not, at that time, issued a controlling decision that resolved this ambiguity. Id. at 1237-38; see Brand X, 545 U.S. at 982, 125 S.Ct. 2688. We concluded that the BIA's interpretation of § 212(a)(9)(C)(i)(II) in Torres-Garcia was "clearly reasonable and is therefore entitled to Chevron deference under Brand X." Duran Gonzales I, 508 F.3d at 1242. Accordingly, we concluded that "we are bound by the BIA's interpretation of the applicable statutes in In re Torres-Garcia, even though that interpretation differs from our prior interpretation in Perez-Gonzalez." Id.
In 2010, the BIA issued its most recent published opinion on this subject. In re Diaz and Lopez rejected the alien's argument that Briones should not apply in cases arising in the jurisdiction of the Ninth Circuit due to our decision in Acosta. 25 I. & N. Dec. 188, 190-91 (BIA 2010). The BIA noted that the decision in Acosta was "constrained by" our previous decision in Perez-Gonzalez, which had subsequently been overruled in Duran Gonzales I. Id. at 190. Citing Brand X, the BIA therefore concluded that "[n]either the Immigration Judge nor the Board remains bound by the Ninth Circuit's decision in Acosta in light of our subsequently issued decision in Matter of Briones and the Ninth Circuit's decision in [Duran] Gonzales [I] to overrule Perez-Gonzalez." Id.
We must first determine whether aliens who are inadmissible under INA § 212(a)(9)(C)(i)(I) may nonetheless apply for adjustment of status under § 245(i). Deferring to the BIA's decision in Briones, we hold that they may not.
We begin by asking whether Congress has "spoken to the precise question at issue." Chevron, 467 U.S. at 842, 104 S.Ct. 2778. Here, Garfias urges us to reaffirm our holding in Acosta, where we interpreted the ambiguity between § 212(a)(9)(C)(i)(I) and § 245(i) in the absence of an authoritative interpretation by the BIA. However, we see no basis for distinguishing § 212(a)(9)(C)(i)(I) from § 212(a)(9)(C)(i)(II) or for departing from the reasoning of Duran Gonzales I. In Brand X, the Supreme Court held that "[a] court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." 545 U.S. at 982, 125 S.Ct. 2688; see Duran Gonzales I, 508 F.3d at 1235-36. We believe that Acosta was not such a decision.
We wrote in Acosta that "[t]he statutes involved do not clearly indicate whether the inadmissibility provision or the penalty-fee adjustment of status provision should take precedence," and reached our conclusion by relying heavily on our earlier Perez-Gonzalez decision. Acosta, 439 F.3d at 553-55. Other circuits have also noted that the tension between § 212(a)(9)(C) and § 245(i) creates a statutory ambiguity that cannot be resolved conclusively by resort to the text. See, e.g., Cheruku v. Att'y Gen., 662 F.3d 198, 204 (3d Cir.2011); Renteria-Ledesma v. Holder, 615 F.3d 903, 908 (8th Cir.2010) ("A literal reading of [8 U.S.C.] § 1255(i) would render the adjustment of status provision a virtual nullity, because aliens who `entered the United States without inspection,' as required by § 1255(i)(1)(A)(i), generally are not `admissible,' as required by § 1255(i)(2)(A)."); Ramirez v. Holder, 609 F.3d 331, 335-36 (4th Cir.2010); Herrera-Castillo v. Holder, 573 F.3d 1004, 1007-08 (10th Cir.2009); Mora v. Mukasey, 550 F.3d 231, 237-38 (2d Cir.2008); Ramirez-Canales, 517 F.3d at 907-08; see also Lemus-Losa v. Holder, 576 F.3d 752, 760 (7th Cir.2009) ("If the question before us were ... the relation between [8 U.S.C. § 1182(a)(9)](C)(i)(I) and § 1255(i) ... we would agree that there is sufficient ambiguity in these provisions to require Chevron deference, and we would find that the BIA has drawn a rational line."). The BIA has also acknowledged this ambiguity, noting that "the plain language of the statute seems to make `entry without inspection' both a qualifying and a disqualifying condition for adjustment of status." Briones, 24 I. & N. Dec. at 362.
We previously refused to give deference to the BIA's interpretation only because it came in the form of a guidance memorandum, which we held was "not entitled to
We now turn to whether the BIA's interpretation of the statutory framework is reasonable. Every circuit to have addressed the issue has concluded that Briones is a reasonable interpretation of § 212(a)(9)(C)(i)(I) and § 245(i). See Renteria-Ledesma, 615 F.3d at 908; Ramirez, 609 F.3d at 337; Mora, 550 F.3d at 239; Ramirez-Canales, 517 F.3d at 910. We agree with our sister circuits and hold that the BIA's interpretation is reasonable.
The BIA noted that the current ambiguity between § 212(a)(9)(C) and § 245(i) was a consequence of a switch from the use of the term "deportable" to "inadmissible" to describe aliens who entered without inspection. See Briones, 24 I. & N. Dec. at 363. The BIA observed that Congress has generally limited adjustment of status to those aliens who have been "inspected and admitted" into the United States. Id. at 359. Section 245(i) authorized a "limited departure from the general `inspection and admission' requirement." Id. at 360. Although Congress intended the requirement to discourage aliens from moving to the United States before becoming eligible for permanent residence, Congress found that the "inspected and admitted" policy forced relatives of permanent residents to leave the country just so they could apply for an immigrant visa at a U.S. embassy or consulate. Id. at 359-60.
The BIA then resolved the textual ambiguity by explaining that "the classes of aliens described in sections 245(i)(1)(A) and 212(a)(9)(C)(i)(I) are [not] coextensive." Id. at 365. That is, § 245(i) applies to some aliens who are physically present in the United States and entered without inspection, but § 212(a)(9)(C)(i)(I) precludes its application to those aliens who entered the country without inspection, stayed for at least one year, departed the country, and then "enter[ed] or attempt[ed] to reenter the United States without being admitted." 8 U.S.C. § 1182(a)(9)(C)(i). The BIA supported its interpretation of § 212(a)(9)(C)(i)(I) by pointing out that subsection (a)(9)(C) is entitled "`Aliens unlawfully present after previous immigration violations.'" Briones, 24 I. & N. Dec. at 366 (quoting 8 U.S.C. § 1182(a)(9)(C)). The BIA emphasized that "[i]t is the entry or attempted entry of an alien subsequent to his accrual of more than 1 year of unlawful presence that triggers inadmissibility under section 212(a)(9)(C)(i)(I), and not mere unlawful presence for more than 1 year." Id.
The latter class of aliens — whom the BIA refers to as "recidivists" — are not eligible for adjustment of status under § 245(i) because otherwise § 245(i) status adjustment would be "available to a whole new class of aliens who had never been eligible for it." Id. at 365-67. Additionally, the BIA deemed it "of crucial importance" to its interpretation "that in every other case where Congress has extended
This is a permissible reading of the statute. In light of the BIA's reasoned opinion, we hold that Briones is entitled to Chevron deference. See Brand X, 545 U.S. at 982, 125 S.Ct. 2688. We conclude that aliens who are inadmissible under § 212(a)(9)(C)(i)(I) are not eligible for adjustment of status under § 245(i), and overrule Acosta to the extent it holds otherwise.
Garfias contends that even if Briones controls the interpretive question in this case, the BIA should not have applied its conclusion to his case. In general, an agency is free to implement new administrative policies through adjudicative procedures instead of rulemaking. See SEC v. Chenery Corp. (Chenery II), 332 U.S. 194, 201-03, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). We have added that an agency "may act through adjudication to clarify an uncertain area of the law, so long as the retroactive impact of the clarification is not excessive or unwarranted." Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir.1982).
However, the Brand X twist here complicates the situation somewhat: because we have determined that our prior decision in Acosta must be overruled in light of the BIA's decision in Briones, it is not clear whether we, as a judicial decisionmaker, have changed the law, or whether it is the agency that has changed the law.
To begin with, we consider whether to address this issue for the first time on appeal. Garfias did not ask the BIA to consider the retroactive application of its decision in the first instance, although the second time his case was before the Board, the government had raised the argument that the BIA should follow Briones rather than Acosta.
We have said that the exhaustion of administrative remedies with respect to the retroactivity issue is not required, except to invite the agency to correct its own error, if "record development is unnecessary and the [agency] has no special expertise to do the retroactivity analysis." Chang v. United States, 327 F.3d 911, 925 (9th Cir.2003). Some courts have concluded that retroactivity is a question of law, and no deference to the agency's decision regarding retroactivity is appropriate, see, e.g., Microcomputer Tech. Inst. v. Riley,
We think that our position in Chang remains a sound one. If there is no need to defer to an agency's position on the issue, there is no particular reason to remand to allow the agency to consider in the first instance whether the rule should be applied retroactively. Because no further record development is necessary and the parties have briefed the issue thoroughly before this court, we will consider the question in the first instance.
Next, we reject the government's position that the BIA, as the authoritative interpreter of an ambiguous statute, has issued an interpretation in Briones that is comparable to "[a] judicial construction of a statute" and "is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction." Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (emphasis added). Although it is true that the BIA is the authoritative arbiter of the meaning of the ambiguous provisions of the INA at issue here, Brand X, 545 U.S. at 983, 125 S.Ct. 2688, its role is considerably more circumscribed than that of an Article III court construing federal law (where no agency is entitled to deference) or a state's high court construing its own law.
That principle is vividly illustrated by the present situation. In Acosta, we issued a binding interpretation of ambiguous provisions of the INA, which was authoritative in this circuit at least until the agency issued a reasonable interpretation to the contrary. If the agency had never done so, Acosta would still be good law. Cf. Brand X, 545 U.S. at 983, 125 S.Ct. 2688. We construed the statute pursuant to "[t]he judicial Power" vested in us over "Cases ... arising under ... the Laws of the United States." U.S. Const. art. III, § 1, § 2, cl. 1. The BIA's authority to say what the law means, however, rests on the "executive Power" vested in the President and his general charge to "take Care that the Laws be faithfully executed." U.S. Const. art. II, § 1, § 3. We defer to an agency not because it is better situated to interpret statutes, but because we have determined that Congress created gaps in the statutory scheme that cannot be filled through interpretation alone, but require the exercise of policymaking judgment. See Chevron, 467 U.S. at 865, 104 S.Ct. 2778 ("[A]n agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments."). "Deference under Chevron to an agency's construction of a statute that it administers is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps." FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000); see Brand X, 545 U.S. at 980, 125 S.Ct. 2688. Thus, the BIA's interpretation of the INA is not a once-and-for-always definition of what the
We conclude that we must treat an agency decision that is contrary to a ruling previously set forth by a court of appeals and, as a result of Chevron and Brand X, prompts the court of appeals to defer to the agency, as we would if the agency had changed its own rules. To do otherwise would ignore the effect of Chevron and treat the agency decision as though it had issued from the court itself. To the extent our precedent suggests the contrary, it is overruled in favor of the analysis we adopt today. See, e.g., Duran Gonzales v. Dep't of Homeland Sec. (Duran Gonzales II), 659 F.3d 930, 939-41 (9th Cir.2011); Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1087-91 (9th Cir.2010).
Chief Judge Kozinski, concurring in the judgment, asserts that we need not conduct a retroactivity analysis at all. See Kozinski Concur. Op. at 529. However, he applies retroactivity principles to conclude that retroactivity analysis does not apply, effectively resolving the retroactivity question against Garfias.
We now turn to the question of the appropriate test to apply to determine if Briones applies to Garfias retroactively. Chevron Oil Co. v. Huson addresses whether a rule changed by a court should be applied retroactively. 404 U.S. at 106-07, 92 S.Ct. 349.
Last year, we affirmed the continuing validity of the Chevron Oil rule in this circuit. Nunez-Reyes, 646 F.3d at 692 ("As a circuit court, even if recent Supreme Court jurisprudence has perhaps called into question the continuing viability of its precedent, we are bound to follow a controlling Supreme Court precedent until it is explicitly overruled by that Court. We therefore remain bound by Chevron Oil." (citations omitted) (internal quotation marks omitted)); see also id. at 698 (Ikuta, J., concurring in part and dissenting in part) ("Although the reasons for severely limiting non-retroactive decisionmaking are clearly set out in Harper, the Court did not expressly overrule Chevron Oil. We therefore must continue to consider Chevron Oil where we are announcing a new rule of law for the first time and the parties have fairly raised the issue." Id. (footnote omitted) (citation omitted)). Thus, where the party has fairly raised the issue we "apply the three-pronged test outlined in Chevron Oil (1) in a civil case; (2) when we announce a new rule of law, as distinct from applying a new rule that we or the Supreme Court previously announced; (3) and when the new rule does not concern our jurisdiction." Id. at 691 (majority opinion).
For the reasons we explained in the previous section, however, we do not think the Chevron Oil test is well adapted to the Brand X situation. We are not announcing a new rule of law here because we have changed our mind about the correctness of our prior rule or because we have been corrected by a higher court. Rather we are approving and applying a new rule that the BIA announced in Briones and to which we must defer under the Brand X
We believe Montgomery Ward is the better fit for this situation. Montgomery Ward addresses the situation when a "new administrative policy [is] announced and implemented through adjudication." 691 F.2d at 1328 (citing Chenery II, 332 U.S. at 202, 67 S.Ct. 1575). In such a case, "the agency may act through adjudication to clarify an uncertain area of the law, so long as the retroactive impact of the clarification is not excessive or unwarranted." Id. We explained that although the agency was free to change or modify its position, the agency's interest in doing so must be "balanc[ed] [against] a regulated party's interest in being able to rely on the terms of a rule as it is written." Id. at 1333. To implement this balancing test, we adopted the framework set forth by the D.C. Circuit in Retail Union:
Id. at 1333 (quoting Retail Union, 466 F.2d at 390).
Although the five-factor Montgomery Ward test was developed in the context of an agency overturning its own rule, it has also been applied when court decisions formed part of the background. See, e.g., Miguel-Miguel v. Gonzales, 500 F.3d 941, 951-53 (9th Cir.2007) (noting that "both the BIA and this court" had adopted the rule at issue before the BIA decided to exercise its statutory discretion to change it); ARA Servs., Inc. v. NLRB, 71 F.3d 129, 135 (4th Cir.1995) (noting that "the rule proposed by the Board represents an abrupt break with well-settled policy" because it "purports to over-turn numerous court precedents and Board decisions" (internal quotation marks omitted)); Local 900, Int'l Union of Elec., Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1195 (D.C.Cir.1984) ("Given the confusion in the Board's and courts' decisions over the years, the new rule cannot be called an abrupt break with a well-settled policy...."). Although none of these cases actually analyzed the effect of a prior court decision on the Montgomery Ward framework, they indicate that the test is flexible enough to account for both agency and court precedent when considering the relevant legal background.
The Montgomery Ward test is more flexible than Chevron Oil, and allows us to take into account the intricacies of a Brand X problem, which are typically absent in a case where we have overruled our own decisions, as in Nunez-Reyes. Although Montgomery Ward involved an agency amending or overturning its own precedent and Brand X involved an agency disagreeing with a court's prior decision, the considerations in both situations are similar. When an agency consciously overrules or otherwise alters its own rule
Importantly, because Chevron and Brand X are grounded in the deference we owe to agency policymaking, neither the presumption in favor of retroactive application nor the prohibition on considering retroactivity on a case-by-case basis applies.
Id.; see James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 540-43, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (plurality opinion).
Although we have not previously considered whether Harper applies with equal force to an agency's creation of new law through adjudication, the other circuits to consider this issue have concluded that it does not. See, e.g., ARA Servs., 71 F.3d at 135 n. 3 ("[T]he fact that Board adjudication has long existed in the interstices of retroactivity law argues in favor of a case-by-case approach to such rulings, rather than an attempt to fit them within one of the above global retroactivity principles."); Laborers' Int'l Union v. Foster Wheeler Corp., 26 F.3d 375, 387 n. 8 (3d Cir.1994) (concluding that the rationales supporting the retroactivity of judicial decisions "do not apply analogously to administrative agency adjudications"); Dist. Lodge 64, Int'l Ass'n of Machinists & Aerospace Workers v. NLRB, 949 F.2d 441, 447 (D.C.Cir.1991) ("These Article III grounds are inapplicable to administrative adjudications, so Beam does not clearly foreclose selective retroactivity here.").
In every case in which we have applied the Montgomery Ward test, we have done so on a case-by-case basis, for example, by analyzing whether a petitioner actually relied on a past rule, or by concluding that retroactivity as applied is impermissible. See Miguel-Miguel, 500 F.3d at 953
Therefore, we hold that when we overturn our own precedent following a contrary statutory interpretation by an agency authorized under Brand X, we analyze whether the agency's statutory interpretation (to which we defer) applies retroactively under the test we adopted in Montgomery Ward, if the issue is fairly raised by the parties.
Applying this test to the case before us, we conclude that Garfias cannot avoid the retroactive effect of Briones on his case.
The first factor of the Montgomery Ward test — whether the issue is one of first impression — was developed in a very different context and may not be suited to our situation. Retail Union, from which this factor was adopted, involved a dispute before the National Labor Relations Board ("NLRB") between a company and union workers with respect to workers who had been on strike, were permanently replaced, and were not offered the vacancies that opened when their replacements departed. 466 F.2d at 383-84, 387. Just before the NLRB's decision in Retail Union, another union had succeeded in convincing the Board to overturn "a well settled rule, enunciated and applied by the Board, that when an employer permanently replaced an economic striker, he was under no obligation thereafter to treat that striker other than as a new applicant for employment." Id. at 387. For the D.C. Circuit, a case of "first impression" in this context meant something different from what we ordinarily refer to as a "case of first impression." In the Retail Union context, a case of "first impression" was a case in which one party had successfully urged the NLRB to change its rule; a case of "second impression" was any subsequent case brought before the NLRB. The court was concerned that denying retroactive effect in a case of first impression would "deny the benefits of a change in the law to the very parties whose efforts were largely responsible for bringing it about [and] might have adverse effects on the incentive of litigants to advance new theories or to challenge outworn doctrines." Id. at 390. Additionally, to deny retroactive effect in a case of first impression would effectively render the NLRB's decision an advisory opinion and raise serious questions as to whether the NLRB had conducted a rulemaking in the guise of an adjudication. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 763-66, 89 S.Ct. 1426,
Retail Union's concerns over issues of "first impression" and "second impression" arose in the litigation-intensive context of the NLRB regulating labor disputes between private parties. These concerns may not be as well suited to the context of immigration law, where one of the parties will always be the government. Moreover, the NLRB is virtually unique among agencies in its "long-standing reliance on adjudication" and the common-law method. See Mark H. Grunewald, The NLRB's First Rulemaking: An Exercise in Pragmatism, 41 Duke L.J. 274, 278 (1991). The BIA, by contrast, relies on a complex combination of regulations promulgated by the Attorney General, its own interpretative decisions, and a detailed framework of statutes to establish national immigration policy. As Garfias is not analogously situated to either the union or the company in Retail Union because it was the government who brought about the change in the law, this Retail Union factor does not weigh in favor of either side. In any event, any question of unfairness in applying a new rule in cases of "first impression" or "second impression," such as surprise or detrimental reliance, is fully captured in the second and third Montgomery Ward factors. See Montgomery Ward, 691 F.2d at 1333-34 (considering the first three factors together as a single criterion).
The second and the third factors are closely intertwined. If a new rule "represents an abrupt departure from well established practice," a party's reliance on the prior rule is likely to be reasonable, whereas if the rule "merely attempts to fill a void in an unsettled area of law," reliance is less likely to be reasonable. Retail Union, 466 F.2d at 390-91. We have made it clear in this circuit that these two factors will favor retroactivity if a party could reasonably have anticipated the change in the law such that the new "requirement would not be a complete surprise." Montgomery Ward, 691 F.2d at 1333-34; see also Great W. Bank, 916 F.2d at 1432. Decisions from other circuits, especially the D.C. Circuit, support this conclusion. In Clark-Cowlitz Joint Operating Agency v. FERC, an en banc court determined that any reliance interest was diminished because the previous rule was only in place for six months, and the rule's "presumably sunny prospects" were "beclouded" by the possibility of being overturned on appeal. 826 F.2d 1074, 1083-84 (D.C.Cir.1987) (en banc). In District Lodge 64, International Ass'n of Machinists & Aerospace Workers v. NLRB, the D.C. Circuit held that multiple changes in the agency's position regarding the proper rule precluded reliance because the final decision "was not an extreme or unpredictable step," much less a "radical transformation." 949 F.2d at 447-48; see also Verizon Tel. Cos. v. FCC, 269 F.3d 1098, 1111 (D.C.Cir.2001) (reliance is "something short of reasonable" "[i]n light of the ongoing legal challenges" to the old rule); Gen. Am. Transp. Corp. v. ICC, 872 F.2d 1048, 1061 (D.C.Cir.1989) (reliance is discounted because the parties were aware of the precedent's vulnerability); Elec.,
In this case, Garfias identifies only two specific reliance interests: the payment of a $1000 penalty fee to file his application, and the fact that, by filing for adjustment of status, he admitted his unlawful presence in this country to the INS. We conclude that neither of these factors favors Garfias because he filed his application well in advance of any court or agency decision holding that inadmissibility under § 212(a)(9)(C) is not a barrier to status adjustment under § 245(i). Garfias first filed his application in 2002, but Perez-Gonzalez and Acosta were not decided until two and four years later, respectively. Thus, Garfias clearly did not file his application in reliance on Acosta, or even the analogous decision in Perez-Gonzalez.
The only window in which Garfias's reliance interest based on our previous rule might have been reasonable is the 21-month period in 2006 and 2007 between the issuance of Acosta and Briones. After Briones was issued, he was on notice of Acosta's vulnerability. At oral argument, Garfias directed us to the costs he expended when renewing his application for status adjustment in front of the IJ on remand, which occurred during this period between Acosta and Briones. For example, he had to renew his medical examination paperwork. However, there is nothing in the record which discloses the cost to Garfias of such paperwork, and the primary reliance interest identified — the penalty filing fee — is not implicated by the proceedings on remand.
Nor can we give much weight to the fact that Garfias admitted to his illegal presence within the United States by filing for adjustment of status. Garfias's situation is similar to the petitioner in Fernandez-Vargas v. Gonzales, who "tipped off the authorities to his illegal presence" by "fil[ing] an application to adjust his status to that of lawful permanent resident [under 8 U.S.C.] § 1255(i)." 548 U.S. 30, 35, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). The Supreme Court rejected the notion that the expanded provisions of IIRIRA should not be applied to him retroactively for other reasons, id. at 38-42, 126 S.Ct. 2422, but remarked that "retroactivity law... is meant to avoid new burdens imposed on completed acts, not all difficult choices occasioned by new law," and the petitioner only "complain[ed] of ... the application of new law to continuously illegal action within his control both before and after the new law took effect," id. at 46, 126 S.Ct. 2422. The Court then rejected the petitioner's position that he had "a right to continue illegal conduct indefinitely under the terms on which it began." Id. Nothing in Briones "impair[s] rights a party possessed when he acted, increase[s] a party's liability for past conduct, or impose[s] new duties with respect to transactions already completed." Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Applying this logic to Garfias's situation, we cannot help but conclude that we should not be overly solicitous of Garfias's interest in continuing to avoid the consequences of his violation of our immigration laws.
Moreover, the reasons that require us to defer to the BIA's decision in Briones also work against Garfias in this case. From the outset, the tension between § 212(a)(9)(C) and § 245(i) was obvious. That ambiguity in the law — which resulted in a six-year dialogue between the BIA and us — should have given Garfias no assurances of his eligibility for adjustment of status. Garfias might have had reason to be encouraged after our generous reading
We recognize that the fourth factor — the degree of burden imposed on Garfias — strongly favors him. Although the relief he applied for is ultimately discretionary, "`[t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation.'" Miguel-Miguel, 500 F.3d at 952 (quoting INS v. St. Cyr, 533 U.S. 289, 325, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). Furthermore, "deportation alone is a substantial burden that weighs against retroactive application of an agency adjudication." Id.
The fifth factor — the statutory interest in applying a new rule — points in favor of the government because non-retroactivity impairs the uniformity of a statutory scheme, and the importance of uniformity in immigration law is well established. See, e.g., Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir.2004) (stressing "the strong interest in national uniformity in the administration of immigration laws"). The government's interest in applying the new rule retroactively may be heightened if the new rule follows from the "plain language of the statute," Great W. Bank, 916 F.2d at 1432. Here it is clear from the multiple approaches taken to solving this problem that the answer is anything but "plain." The new rule does not follow from the plain language of the statute because there is an inconsistency between two statutory provisions. The statutory interest in applying the new rule retroactively thus favors the government, but because the government cannot claim that the new rule follows from the plain language of the statute, the factor only leans in the government's direction.
In sum, although we recognize the burden that retroactivity imposes on Garfias, the second, third, and fifth factors in this case outweigh that burden. When he filed his § 245(i) application in 2002, Garfias had no reliance interest because the law was not settled or well established. Garfias's is not a case "where the [agency] had confronted the problem before, had established an explicit standard of conduct, and now attempts to punish conformity to that standard under a new standard subsequently adopted." Retail Union, 466 F.2d at 391. We hold that the BIA properly applied the Briones rule to Garfias.
Finally, Garfias challenges the automatic termination of the BIA's grant of voluntary departure. First, he argues that notwithstanding 8 C.F.R. § 1240.26(i), which provides for the automatic termination of a voluntary departure grant upon the filing of a petition for review, we retain equitable authority to stay the voluntary departure period. Second, he argues that the Attorney General exceeded his authority when he promulgated the regulation pursuant to 8 U.S.C. § 1229c(e).
Section 1229c(e) authorizes the Attorney General "by regulation [to] limit eligibility for voluntary departure under this section for any class or classes of aliens." 8 U.S.C. § 1229c(e).
We first consider whether we have equitable authority to stay Garfias's voluntary departure period regardless of 8 C.F.R. § 1240.26(i). We conclude that we do not.
The Supreme Court has explicitly reserved the question of whether courts retain equitable jurisdiction to grant stays of voluntary departure periods pending appellate review. See Dada v. Mukasey, 554 U.S. 1, 10-11, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) ("[S]ome Federal Courts of Appeals have found that they may stay voluntary departure pending consideration of a petition for review on the merits. This issue is not presented here, however, and we leave its resolution for another day." (citations omitted)). Previously, we held that we have equitable authority to stay a petitioner's voluntary departure period. El Himri v. Ashcroft, 344 F.3d 1261, 1262-63 (9th Cir.2003). Our sister circuits, except for the Fourth Circuit, agreed. See, e.g., Thapa v. Gonzales, 460 F.3d 323, 332 (2d Cir.2006); Obale v. Att'y Gen., 453 F.3d 151, 157 (3d Cir.2006); Bocova v. Gonzales, 412 F.3d 257, 267-68 (1st Cir. 2005) (rejecting the government's argument as "sheer persiflage"); Lopez-Chavez v. Ashcroft, 383 F.3d 650, 654 (7th Cir.2004); Rife v. Ashcroft, 374 F.3d 606, 615-16 (8th Cir.2004); Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir.2003) (per curiam). But see Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir.2004) ("Having concluded ... that 8 U.S.C. § 1252(a)(2)(B) precludes judicial review of the BIA's order granting voluntary departure, we cannot evade this statutory directive by resort to equity.").
However, each of these decisions was reached before the Attorney General promulgated 8 C.F.R. § 1240.26(i) in 2008. The First, Third, and Sixth Circuits have recently acknowledged that this regulation resolves the question of whether courts have authority to stay the voluntary departure period pending review, since it provides for the automatic termination of that period. See Hachem, 656 F.3d at 438 ("Prior to the promulgation of this regulation, there was a circuit split on the issue of whether or not a court of appeals had the discretion to stay voluntary departure. The new regulation resolved that issue." (citations omitted)); Patel v. Att'y Gen., 619 F.3d 230, 234 (3d Cir.2010) ("Under the plain language of 8 C.F.R. § 1240.26(i), we cannot stay a grant of voluntary departure after a petitioner seeks judicial review because the grant has already terminated.");
We agree with our sister circuits. Garfias has given us no reason to believe that courts possess equitable authority to stay voluntary departure periods contrary to the Attorney General's regulation. In § 1229c(e), Congress granted the Attorney General the authority to control grants of voluntary departure, and the Attorney General exercised this authority by deciding that a grant of voluntary departure terminates upon the filing of a petition for review. This regulation effectively abrogates our contrary decision in El Himri. 344 F.3d at 1262; see United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 496, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001) (noting that federal courts have equitable discretion "unless a statute clearly provides otherwise"). Accordingly, because the filing of a petition now automatically terminates a petitioner's grant of voluntary departure, we conclude that, assuming that 8 C.F.R. § 1240.26(i) is valid, we have no authority to issue an equitable stay of Garfias's voluntary departure period.
The Sixth Circuit has squarely held that 8 C.F.R. § 1240.26(i) is a reasonable interpretation of § 1229c(e), Hachem, 656 F.3d at 438, and several other circuits have applied the regulation or otherwise noted its existence, see, e.g., Patel, 619 F.3d at 233-34 (noting that Obale, 453 F.3d at 157, has been superseded by the regulation); see also Kimani v. Holder, 695 F.3d 666, 668-69 (7th Cir.2012); Qingyun Li v. Holder, 666 F.3d 147, 150 (4th Cir.2011); Hakim, 611 F.3d at 78; Sanchez-Velasco v. Holder, 593 F.3d 733, 737 (8th Cir.2010). We join the Sixth Circuit in finding the regulation to be a valid exercise of delegated power.
In determining whether an agency regulation is ultra vires, we apply the two-step Chevron analysis. See Mejia v. Gonzales, 499 F.3d 991, 996 (9th Cir.2007). We hold that Congress has unambiguously granted the Attorney General authority to control the scope of voluntary departure grants in § 1229c and that he has reasonably exercised his authority in promulgating the regulation.
Under § 1229c(b)(1), "[t]he Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if ... the immigration judge enters an order granting voluntary departure in lieu of removal." 8 U.S.C. § 1229c(b)(1) (emphasis added). This permissive language affords the Attorney General discretion to decide whether to permit voluntary departure after it has been granted by the immigration judge.
Moreover, § 1229c(e), provides additional support for 8 C.F.R. § 1240.26(i). Section 1229c(e) expressly authorizes the Attorney General "by regulation [to] limit eligibility for voluntary departure under [§ 1229c] for any class or classes of aliens." 8 U.S.C. § 1229c(e) (emphasis added). This section gives the Attorney General authority to issue regulations explaining how he will exercise his discretion under § 1229c(b)(1). See, e.g., Dekoladenu v. Gonzales, 459 F.3d 500, 506 n. 5 (4th Cir.2006) ("The statute does not guarantee voluntary departure even to eligible aliens. Rather, it ... authorizes the Attorney General to issue regulations limiting eligibility for voluntary departure for any class or classes of aliens. As a practical matter, only a relatively small percentage of removable aliens are granted voluntary departure." (citation omitted) (internal quotation marks omitted) (alterations omitted)), overruled on other grounds by Dada, 554 U.S. at 6-8, 128 S.Ct. 2307; Cervantes-Ascencio v. INS, 326 F.3d 83, 86 (2d Cir. 2003) ("Promulgating limits on eligibility for voluntary departure involves broad discretion by the INS, as does granting or denying voluntary departure. This discretionary component not only substantially curtails our review authority, but also precludes entitlement to such relief as a matter of right." (citations omitted)). The Attorney General's regulation is consistent with § 1229c(e) because it is a limitation on eligibility for voluntary departure for a class of aliens — those who wish to remain
In his dissent, Judge Reinhardt argues that the Attorney General's regulation is not consistent with § 1229c(e) because the term "eligibility" under § 1229c(e) does not "encompass a condition ... predicated on ... future actions," such as an alien's decision to pursue an appeal. Reinhardt Dissent Op. at 539. For the reasons we have explained, we disagree with such a narrow and isolated reading of "eligibility;"
In sum, § 1229c gives the Attorney General discretion ("may permit") to prohibit and thereby terminate voluntary departure in § 1229c(b)(1) and authority to limit eligibility in § 1229c(e). Section 1229c does not contain any language that qualifies this discretion. Indeed, the rest of § 1229c only lists express limitations on the Attorney General's authority to grant voluntary departure. See, e.g., 8 U.S.C. § 1229c(a)(2)(A) (imposing a general 120-day maximum on voluntary departure deadlines); id. § 1229c(b)(1) (imposing four limitations on the class of aliens eligible for voluntary departure); id. § 1229c(c) (prohibiting grants of voluntary departure to aliens "previously permitted to so depart after having been found inadmissible under section 1182(a)(6)(A)"). Contrary to Judge Reinhardt's view, Congress did not mandate that the voluntary departure requirements listed in § 1229c(b)(1) would be exclusive. Reinhardt Dissent Op. at 537, 538-39. Instead,
We also note that the Attorney General's regulation, 8 C.F.R. § 1240.26(i), does not deprive an alien of his fundamental right to judicial review or penalize the alien for exercising that right. An alien who files a petition for review is free to voluntarily depart within 30 days of filing and pursue the appeal from outside of the United States. See, e.g., Contreras-Bocanegra v. Holder, 678 F.3d 811, 813-14, 819 (10th Cir.2012) (considering an appeal from an alien who was outside of the country); Jian Le Lin v. U.S. Att'y Gen., 681 F.3d 1236, 1238 (11th Cir.2012) (same); Pruidze v. Holder, 632 F.3d 234, 235 (6th Cir.2011) (same); Marin-Rodriguez v. Holder, 612 F.3d 591, 592 (7th Cir.2010) (same); see also Nken v. Holder, 556 U.S. 418, 424-25, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (explaining that Congress has "lifted the ban on adjudication of a petition for review once an alien has departed"); Dada, 554 U.S. at 22, 128 S.Ct. 2307 (noting that Congress has permitted aliens who have departed the United States to seek judicial review, but not a motion to reopen); Patel v. Att'y Gen. of U.S., 619 F.3d 230, 235 (3d Cir.2010) ("[U]nder 8 C.F.R. § 1240.26(i), an alien does not necessarily lose her right to file a petition for review. If she voluntarily departs within 30 days of filing a petition for review and provides evidence that she remains outside of the United States, she ... can thus pursue her petition for review"). If an alien chooses to remain in the United States to pursue the appeal, the regulation does not penalize the alien for exercising the fundamental right to judicial review; rather, it penalizes the alien for remaining in the United States illegally while the appeal is pending.
The Attorney General's regulation may alter the alien's incentives to appeal, but it ultimately balances the interests of the alien and those of the government. Voluntary departure represents a quid pro quo between the alien and the government. Dada v. Mukasey, 554 U.S. 1, 11, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008). As the Supreme Court explained, "[i]f the alien is permitted to stay in the United States past the departure date to wait out the adjudication of the motion to reopen, he or she cannot then demand the full benefits of voluntary departure; for the benefit to the Government — a prompt and costless departure — would be lost." Id. at 19-20, 128 S.Ct. 2307. That same benefit is lost to the government if an alien files a petition for review. The Attorney General's regulation restores the quid pro quo between the government and the alien.
In light of the broad grant of discretion over voluntary departure in both § 1229c(b)(1) and § 1229c(e), we hold that the promulgation of 8 C.F.R. § 1240.26(i) was a proper exercise of the Attorney General's authority.
We defer to the BIA's holding that aliens who are inadmissible under INA § 212(a)(9)(C)(i)(I) may not seek adjustment of status under § 245(i). Furthermore, we hold that under the five-factor test of Montgomery Ward, this rule can properly be applied to Garfias because he filed his § 245(i) application before any court ruled he was eligible to do so. Finally, we hold that 8 U.S.C. § 1229c(e) unambiguously provides the Attorney General with the authority to promulgate 8 C.F.R. § 1240.26(i), and that Garfias's grant of voluntary departure terminated upon his decision to file a petition for review.
PETITION DENIED.
The law is unsettled in many areas and parties often don't know the precise rule that applies to their past conduct until their case is decided. Thus, retroactivity issues lurk in many, perhaps all cases, yet we don't routinely conduct retroactivity analysis. Before we go into retroactivity mode, we must first determine whether this case involves a retroactive application of law. Because it doesn't, we have no reason to discuss retroactivity.
A law is retroactive when it "attaches new legal consequences to events completed" before it went into effect — a determination guided by considerations of "fair notice, reasonable reliance, and settled expectations." Vartelas v. Holder, ___ U.S. ___, 132 S.Ct. 1479, 1491, 182 L.Ed.2d 473 (2012) (internal quotation marks omitted). INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), illustrates a classic example of a retroactive law. The petitioner there pled guilty "almost certainly" in reliance that doing so would preserve his chance to seek section 212(c) relief — a "waiver of deportation" granted "at the discretion of the Attorney General." Id. at 293-94, 323, 325, 121 S.Ct. 2271. St. Cyr thus took an action in the real world — giving up his rights to a fair trial, to a jury of his peers, to the presumption of innocence, to proof beyond a reasonable doubt — in exchange for a limited punishment that did not include losing his eligibility for 212(c) relief. Id. at 325, 121 S.Ct. 2271. It was that completed act — the guilty plea — that animated the Court's conclusion that the statute was impermissibly retroactive. Id.; see also Vartelas, 132 S.Ct. at 1483-84 (holding that an IIRIRA provision was impermissibly retroactive because it "attached a new disability" to Vartelas's pre-IIRIRA guilty plea and conviction).
Garfias can't point to any similar action that he is "helpless to undo," see Vartelas, 132 S.Ct. at 1489 (internal quotation marks omitted), to which today's holding attaches new legal consequences. Nor can he point to any settled law that today's holding unsettles by imposing an additional burden on his past conduct. See id. at 1490-92. There are, in fact, three separate reasons why retroactivity analysis has no place in today's opinion.
I am aware of Ixcot v. Holder, 646 F.3d 1202, 1210-14 (9th Cir.2011), which holds that an illegal alien's decision to apply for
Briones thus doesn't attach a new legal consequence to Garfias's decision to apply for adjustment of status. See Vartelas, 132 S.Ct. at 1491; cf. Judulang v. Holder, ___ U.S. ___, 132 S.Ct. 476, 489 n. 12, 181 L.Ed.2d 449 (2011) (rejecting alien's argument that two BIA decisions were impermissibly retroactive on the grounds that the agency's "prior practice" in that area of the law was "so unsettled"). He is not situated similarly to the class of individuals who applied for adjustment of status after Acosta and before Briones. Accordingly, we have no occasion to consider the impact of applying Briones to everyone "who sought adjustment of status in reliance on Acosta," as Judge Paez urges. See Paez dissent at 547-48, 551-52, 552-53. We can make that decision when we get a petitioner who filed for relief after Acosta. See Singh v. Napolitano, 649 F.3d 899, 901 n. 1 (9th Cir.2011) (per curiam).
The majority opinion at least recognizes that the BIA is the "authoritative arbiter of the meaning of the ambiguous provisions of the INA at issue here," but then goes astray in suggesting that our interpretation of the provisions was "authoritative... at least until" the BIA issued Briones. Maj. op. at 515. Thus, Garfias and the majority contend, the BIA's interpretation that contradicts our earlier interpretation in Acosta "brought about [a] change in the law." Maj. op. at 514 n. 7, 12603. Bosh. Brand X makes it perfectly clear that "a court's opinion as to the best reading of an ambiguous statute an agency is charged with administering is not authoritative." Brand X, 545 U.S. at 983, 125 S.Ct. 2688 (emphasis added). Briones didn't change the law; it set it.
Nor can I agree with the majority's gratuitous discussion of separation of powers and its conclusion that "we must treat an agency decision that is contrary to a ruling previously set forth by a court of appeals and, as a result of Chevron and Brand X, prompts the court of appeals to defer to the agency, as we would if the agency had changed its own rules." Maj. op. at 516. I find this discussion opaque and confusing — and not the least bit helpful.
The Supreme Court has made it clear that, in those areas where agencies have been delegated interpretive responsibility by Congress, they and they alone can speak with the authority as to what the law means. See, e.g., Brand X, 545 U.S. at 982-83, 125 S.Ct. 2688; Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Peter L. Strauss, "Deference" is Too Confusing — Let's Call Them "Chevron Space" and "Skidmore Weight," 112 Colum. L.Rev. 1143, 1145-48 (2012). It's as if Congress gave these agencies magic fountain pens that they can use to interlineate the statutory text in order to fill gaps and resolve ambiguities. Our job is to apply the law to individual cases, based on the normal rules of construction, which include the requirement that we follow the authoritative interpretation of an agency. Where the agency has not yet spoken, our ruling is necessarily provisional and subject to correction when the agency chooses to adopt its own interpretation of the statute. See Kathryn A. Watts, Adapting to Administrative Law's Erie Doctrine, 101 Nw. U.L.Rev. 997, 1000-01 (2007).
We do, of course, set the law of the circuit, which is binding on all the courts — until the agency speaks. At that point we, along with every other court, are bound by a reasonable interpretation adopted by the agency. It is sophistry to claim, as the majority does, that this amounts to an agency changing its own rules — as if we were speaking on behalf of the agency when we adopted our earlier interpretation. It's far simpler and more correct to say that we took an educated guess as to what the statute meant, just as we often guess what state laws mean in the absence of authoritative guidance from the state supreme court. Cf. Brand X, 545 U.S. at 983-84, 125 S.Ct. 2688; United Gas Pipe Line Co. v. Ideal Cement Co., 369 U.S. 134, 135, 82 S.Ct. 676, 7 L.Ed.2d 623 (1962) (per curiam). But when a state supreme court later contradicts us, we surely wouldn't say that the state court changed its mind. I see no point in adopting this
The majority claims that I "conflate[] the result of a retroactivity analysis with the process of conducting it." Maj. op. at 516. But we've held that where an agency's decision "would not have a retroactive effect ..., we need not reach the less stringent standard set forth in Montgomery Ward." Singh, 649 F.3d at 901 n. 1; see also Judulang, 132 S.Ct. at 489 n. 12. The majority fails to acknowledge that there are cases that don't require retroactivity analysis because they don't involve a retroactive application of the law. The majority also doesn't give us any way to distinguish cases that raise a legitimate retroactivity question from those that do not, or even bother to explain why this case falls into the former category rather than the latter. What are those charged with applying our law to gather from this? That it's up to every judge and every panel to conduct a retroactivity analysis whenever they feel it in their guts that the law is being applied retroactively?
The majority is also wrong when it suggests that my approach is equivalent to its own. See maj. op. at 516-17 & n. 9. I've advanced three separate reasons why I believe this case doesn't involve retroactive application of the law, but I don't need all three to reach that conclusion; any one, standing alone, would be enough. I engage in no balancing and weighing of factors against each other, whereas my colleagues do.
Balancing involves uncertainty because you have to predict how different judges will assess the factors, which is not always an easy task. This case illustrates my point: Having launched themselves into retroactivity mode, six of my colleagues pick one test while three others pick a different test. Compare maj. op. at 528, with Paez dissent at 552-53, and Gould conc. at 532. One judge believes that either test comes to the same result, see Graber partial conc. at 533-34, and another agrees with the majority's conclusion while applying the test favored by the dissent, see Gould conc. at 532 As an en banc court, we have a responsibility to bring clarity to our law. By the time lawyers in this circuit get through reading all of our opinions, they'll be thoroughly confused.
I concur in Subsection III.B, maj. op. at 513-23, only to the extent that I agree Briones applies to Garfias. I join in the rest of the opinion.
GOULD, Circuit Judge, concurring:
I concur in the outcome of the majority opinion, and could join most of its analysis except for its decision in part III.B.3 to apply the test from Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir. 1982) for when agency decision should be applied retroactively. I also agree with most of the reasoning in the dissent of Judge Paez as to why the retroactivity test of Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) should be applied rather than Montgomery Ward. But I part company with Judge Paez's dissent as to its application of the Chevron Oil standard.
I would apply the three-factor test for retroactivity set forth in Chevron Oil to conclude that the rule of In re Briones, 24 I. & N. Dec. 355 (BIA 2007), that we adopt today, should be applied retroactively. We have said that we must apply the Chevron Oil test where "we announce a new rule of law that does not concern our jurisdiction." Nunez-Reyes v. Holder, 646 F.3d 684, 692 (9th Cir.2011) (en banc) (emphasis added). Even though we now change our interpretation
Brand X does not transform the nature of our decision into an agency decision. Whether we adopt a new rule because of changed views on a complex analysis of underlying law, or because of a simple flash of insight accepted and followed, or because of our duty to abide Supreme Court precedent, our decision remains a judicial decision. The judicial power under Article III is in the courts, not in an agency with responsibilities relating to the decision.
I would apply the Chevron Oil test to conclude that the rule of Briones that we adopt today should apply retroactively. "The three Chevron Oil factors are: (1) whether the decision establishes a new principle of law; (2) whether retrospective operation will further or retard the rule's operation in light of its history, purpose, and effect; and (3) whether our decision could produce substantial inequitable results if applied retroactively." Id. at 692 (internal quotation marks, alterations, and citations omitted). How does that test apply to the circumstances presented here?
First, it is unmistakable that our decision establishes a new principle of law because we overrule clear precedent established by Acosta v. Gonzales, 439 F.3d 550 (9th Cir.2006). Second, I conclude that a "retrospective operation" of the Briones rule would "further ... the rule's operation in light of its history, purpose, and effect," because § 1255(i) aims to give relief to a narrow group of aliens instead of to all those who have been deemed inadmissible for any reason. See Briones, 24 I. & N. Dec. at 359-60. Third, because the BIA clarified its position on the interplay between §§ 1182(a)(9)(C)(i)(I) and 1255(i) about 21 months after our decision in Acosta, I conclude that our decision here would not produce substantial inequitable results if applied retroactively. See Nunez-Reyes, 646 F.3d at 692-94 (describing a 10-year period during which aliens may have relied on our decision in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) to forego their right to a jury trial by pleading guilty to simple possession charge with the expectation of no adverse immigration consequences). As the majority points out, an alien who relied on our decision in Acosta had notice of its vulnerability as soon as Briones was issued. And, unlike in Nunez-Reyes where there was detrimental reliance because the alien waived important constitutional rights by relying on Lujan-Armendariz which we then overruled, here the main interest implicated is the alien's prerogative to continue to conceal his unlawful presence, an interest that, the majority points out, is of no legal significance. See Nunez-Reyes, 646 F.3d at 693-94. For these reasons, I conclude that our decision today should apply retroactively, hence my concurrence in the majority's result.
I join Parts III-A and III-B of the majority opinion. It is a close question whether Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), or Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir.1982), provides the better framework for deciding the retroactivity issue when both an agency and a court (deferring to the agency's interpretation) change their construction of an ambiguous statute. Even if the Chevron Oil test applied here, however, I agree with Judge Gould's analysis of it. That is, under either framework, retroactive application of the new legal rule is appropriate.
I also join Part II of Judge Reinhardt's dissent, which concludes that 8 C.F.R. § 1240.26(i) exceeds the Attorney General's statutory authority.
REINHARDT, Circuit Judge, with whom PAEZ, Circuit Judge, joins, and with whom GRABER, Circuit Judge, joins as to Part II, dissenting:
I join in Judge Paez's dissent, which ably explains why the Chevron Oil test should guide our analysis regarding the adjustment of status issue, and why today's holding in that regard should apply prospectively only.
I write separately to express my disagreement with the majority's decision, in Part III(C) of its opinion, to uphold the Attorney General's regulation automatically terminating voluntary departure in the event that a non-citizen has the temerity to file a petition for review of the BIA's decision on the underlying issue with the court of appeals. 8 C.F.R. § 1240.26(i). The Attorney General's regulation effectively penalizes non-citizens for exercising a fundamental right in the American legal system: the right to judicial review of executive action. The regulation is incompatible with the statutory scheme establishing voluntary departure and thus an improper exercise of the powers delegated to the Attorney General. The majority's decision to uphold the regulation is not only erroneous as a matter of law, but also, ultimately, renders our justice system less worthy of its name.
"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws." So proclaimed Chief Justice John Marshall in Marbury v. Madison, one of our country's earliest cases reviewing executive action. 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803). In the years since, the presumption of judicial review over administrative actions has become a fundamental principle of American law. See INS v. St. Cyr, 533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
This commitment to judicial review is particularly important in the review of decisions regarding removal. Few decisions will be more consequential in an individual's life than the decision to forcibly remove him from the country. The relief that a non-citizen seeks from immigration authorities is the last resort that a non-citizen has before being returned, against his will, to a country where he may have no ties or family, or where he may be subjected to imprisonment, torture, or certain death. Recognizing the gravity of such proceedings, we have asserted numerous times that non-citizens in removal hearings are entitled to due process protections under the Fifth Amendment. See Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999). We have explained that, consistent with that entitlement, non-citizens "must receive a `full and fair hearing.'" Id.
Despite all this, the Attorney General's new regulation imposes drastic consequences on those non-citizens who seek nothing more than to have a court review what may be the single most significant legal action that will ever affect them. Prior to this regulation, a non-citizen who was granted voluntary departure at the conclusion of his removal proceedings was free to seek judicial review of the order requiring him to leave the country, without jeopardizing his voluntary departure.
The disability imposed by the Attorney General's new regulation — forcing non-citizens to forgo their voluntary departure and instead depart under an order of removal, simply because they have exercised their right to judicial review — is substantial. A non-citizen gains numerous benefits from not being forcibly removed from the country. Voluntary departure not only permits non-citizens the time and freedom to organize their affairs in the United States before departing, but also provides legal benefits. Non-citizen who depart under an order of removal are barred for ten years from being admitted to the country. See 8 U.S.C. § 1182(a)(9)(A)(ii). Non-citizens who are ordered removed, who have accumulated at least one year of illegal presence in the country, and who later re-enter the country are subject to a life-long bar on their presence in the United States. 8 U.S.C. § 1182(a)(9)(C)(i).
It is particularly perverse that the Attorney General, in attempting to deter non-citizens from seeking judicial review, has chosen to target those non-citizens who are granted voluntary departure at the conclusion of their proceedings. The qualifications for such "post-decisional" departure are not easy to meet: non-citizens who have been granted that form of relief must establish that they have been present in the United States for at least one year, that they have been of good moral character for at least the previous five years, that they have not committed certain criminal or other offenses, and that they have both the financial means to depart the country and the intent to do so. 8 U.S.C. § 1229c(b)(1). Of all non-citizens, those present in the country for a substantial period of time, who have been of good moral character, and who have not committed crimes would seem to be those whom the government might want to take the most care to prevent from being erroneously removed, and thus to ensure that they are not dissuaded from seeking judicial review. Yet it is these non-citizens, and only these non-citizens, who are being required to forfeit their right to judicial review under the Attorney General's regulation.
The Attorney General and the majority defend the regulation by arguing that non-citizens are perfectly free to pursue their petitions for review from abroad. This argument is specious at best. For many non-citizens, the ability to pursue a petition for review from abroad is entirely meaningless. Many non-citizens face persecution, torture, or even death if they return home to their country. For them, the option to return home to face such horrors while a court of appeals considers rectifying any error by the BIA is no option at all.
One need not agree with all of the above legal criticisms of the Attorney General's regulation, however, in order to find that it was not within his authority to enact it. As set forth below, the Attorney General's regulation is neither a reasonable interpretation of the voluntary departure statute nor, as the Attorney General argues, a permissible exercise of his power to limit "eligibility" for voluntary departure. The regulation must be struck down as ultra vires and unreasonable, and the majority errs in holding to the contrary.
The statutory provision that creates voluntary departure for certain individuals who have been ordered removed ("postdecisional" voluntary departure) nowhere mentions the relinquishment of procedural rights. See 8 U.S.C. § 1229c(b). The Attorney General argues that his interpretation of the statute as containing such a requirement is a permissible exercise of his interpretive authority. Even assuming that the Attorney General's regulation is entitled to Chevron deference, however, it may be upheld only to the extent that it is "reasonable in light of the legislature's revealed design." Ariz. Health Care Cost Containment Sys. v. McClellan, 508 F.3d 1243, 1249 (9th Cir.2007) (quoting United States v. Haggar Apparel Co., 526 U.S. 380, 392, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999)) (internal quotations omitted). Viewed in this light, it is clear that the Attorney General's regulation cannot be said to be consistent with Congress's revealed design of the voluntary departure statute.
Voluntary departure is the name given to two distinct types of statutorily-provided relief from removal. See 8 U.S.C. § 1229c(a), (b). Each type of voluntary departure reflects a careful, congressionally-crafted balance of incentives and obligations. The first form of voluntary departure is available to non-citizens either "in lieu of being subject to [removal] proceedings... or prior to the completion of such proceedings." 8 U.S.C. § 1229c(a)(1). This pre-decisional voluntary departure, as suggested by the fact that it must occur before the completion of removal proceedings, necessarily involves the relinquishment of certain procedural rights, including the right to petition for review. Thus, as the Attorney General has made clear, eligibility for this type of pre-decisional voluntary departure naturally requires that a non-citizen forgo the opportunity to apply for other types of relief from removal, such as an application for asylum, relief under the Convention Against Torture, or cancellation of removal. See In re Arguelles-Campos,
The second form of voluntary departure, however, had not — at least, until the time of Attorney General Mukasey's regulation — been thought to involve the relinquishment of procedural rights. Rather, this second, post-decisional form of voluntary departure was available to all non-citizens "at the conclusion" of removal proceedings, regardless of whether they subsequently decided to seek judicial review. 8 U.S.C. § 1229c(b). As explained above, our circuit joined many others in finding that such voluntary departure was entirely consistent with judicial review. In accordance with the fact that post-decisional voluntary departure requires the government to expend additional resources pursuing a non-citizen's removal, the eligibility requirements for such post-decisional voluntary departure are significantly heightened. Although the eligibility requirements for pre-decisional voluntary departure are not particularly onerous,
The BIA has recognized the important distinction between these two statutory forms of relief, despite the fact that they have the same name:
Arguelles-Campos, 22 I. & N. Dec. at 817. The BIA thus has recognized that not only did Congress purposefully intend to draw an important distinction between these two types of relief, but that the relinquishment of procedural rights was central to the distinction between the two.
With this new regulation, however, the Attorney General has violated that congressional design, by inserting a requirement for the relinquishment of procedural rights into the post-decisional voluntary departure process. Although, in some instances, it might be appropriate for an agency to read substantive provisions into congressional silence, here, Congress's "revealed design" forbids the Attorney General from doing so. See Haggar Clothing, 526 U.S. at 392, 119 S.Ct. 1392 ("[A] court may conclude the regulation is inconsistent with the statutory language or is an unreasonable implementation of it. In those instances, the regulation will not control."). The Attorney General could not subvert the statutory design by, for example, limiting pre-decisional voluntary departure to only those non-citizens who are eligible for post-decisional voluntary departure, so as to essentially eliminate the distinction between eligibility for the two forms of statutory relief. See Arguelles-Campos, 22 I. & N. Dec. at 817 (enumerating the different eligibility requirements as a hallmark of the "different purposes" Congress intended for each form of voluntary departure). The Attorney General is equally barred from eliminating the distinction between the procedural prerequisites for these two forms of relief, by requiring the relinquishment of the right to judicial review as part of exercising the statutory entitlement to post-decisional voluntary departure.
Thus, the Attorney General's regulation automatically terminating voluntary departure is simply inconsistent with the statutory scheme. It cannot be upheld as a permissible exercise of the Attorney General's authority to interpret the voluntary departure statute.
The Attorney General seeks to defend his regulation by pointing to 8 U.S.C. § 1229c(e), which permits him, by regulation, to "limit eligibility for voluntary departure under this section for any class or classes of aliens." The majority essentially suggests that this provision constitutes carte blanche for the Attorney General to prohibit voluntary departure in any way he pleases and at any time he pleases, including after final administrative action affirming a grant of voluntary departure. In doing so, it errs.
The majority's reading is contrary to the unambiguous command of the statute, which, by its very terms, grants the Attorney General authority to limit only "eligibility" for voluntary departure. The plain meaning of the term "eligibility" simply does not encompass a condition, such as the one here, predicated on a non-citizen's future actions — that is, a condition predicated on events that are unknown and unknowable at the time that a determination is made. Rather, the meaning generally implies some ascertainable state of being at the time that the particular decision for which eligibility is relevant is made. Thus, for example, Black's defines the term as "[f]it and proper to be selected or to receive a benefit." Black's Law Dictionary 597 (9th ed. 2009) (emphasis added).
Under the plain meaning of the term, the determination of "eligibility" is made when the immigration judge grants voluntary departure. If the Attorney General has exercised his discretion to limit eligibility for a "class" of which the non-citizen is a member, the individual seeking voluntary departure will be ineligible to be awarded that relief. Otherwise, he, like the non-citizen here, is eligible and may be granted such relief, if he otherwise qualifies.
Although the distinction may occasionally be elusive, the difference between a condition for "eligibility" and a condition for "termination" is not as trivial as the majority suggests. Neither the majority nor the government contends that a violation of the other eligibility criteria for voluntary departure (e.g., good moral character) after the immigration judge has granted the non-citizen voluntary departure would constitute grounds for a determination that the non-citizen is not eligible. Nor does either point to any case to that effect.
Indeed, our procedural due process jurisprudence recognizes that the distinction between the conditions relevant to eligibility and to termination is an important one, fundamental to the very existence of vested interests in life, liberty, and property. As the Supreme Court held in Logan v. Zimmerman Brush, "While the legislature may elect not to confer a property interest, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards." 455 U.S. 422, 432, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (internal quotations marks and alterations omitted).
This majority's decision is contrary to the plain text of 8 U.S.C. § 1229c(e). There is simply nothing in that provision, or any other statutory provision to which the majority or the Attorney General can point, to suggest that, when Congress permitted the Attorney General to regulate eligibility requirements for voluntary departure, it also intended to permit him to terminate voluntary departure once it was granted, or to enact a regulation to that effect. The majority errs in granting the Attorney General that authority — and, in the process, by eviscerating the important distinction between eligibility for a right and the termination of that right.
Perhaps in recognition of the weakness of the Attorney General's rationale, the majority offers its own interpretation of the voluntary departure statute as support for the Attorney General's authority to promulgate the regulation. Its reading of the statute, however, is, in my view, unreasonable, clearly in error, and directly contrary to the manner in which the Attorney General construes the statute. Certainly, the Attorney General does not — and in all likelihood would not — urge the adoption of the majority's rationale, and the majority errs in sua sponte making it the law of this circuit.
The majority reads the voluntary departure statute as requiring two different actions at two different times by two different actors — despite the fact that this is not, and has never been, the law; nor has it ever been the manner in which voluntary departure has been implemented. The majority states that the immigration judge must first enter an order granting voluntary departure upon finding that the non-citizen meets the statutory requirements and is "eligible" for relief. The majority then states that there is a second and subsequent step, which, it contends, occurs "after [voluntary departure] has been granted by the immigration judge" (emphasis added), at which the Attorney General "may permit" the non-citizen to voluntarily depart. The majority contends, as a result of this second step, that the Attorney General "may" for any reason "permit" or deny voluntary departure after it has been granted by the immigration judge and/or the Board of Immigration Appeals. According to the majority, the Attorney General may do so for any reason and at any time until the non-citizen has actually departed the country (or even, potentially, afterward). It is on the basis of this definition of "permit" that the majority argues that the statute affords the Attorney General the right to "terminate" the grant of voluntary departure — an authority that the Attorney General himself does not purport to possess, other than to the extent that he may do so by "limit[ing] eligibility ... for any class or classes of aliens." See discussion supra Part II(B).
The majority entirely misapprehends the voluntary departure scheme. The language in the voluntary departure statute stating that the Attorney General "may permit" a non-citizen to voluntarily depart simply affords the Attorney General — or, in practical terms, his delegees — discretion to grant or deny voluntary departure at the completion of the immigration proceeding to the non-citizen if he has been determined to be eligible for that relief under the statute. See Bazua-Cota v. Gonzales, 466 F.3d 747, 748 n. 1 (9th Cir.2006) (noting that, under 8 U.S.C. § 1252(a)(2)(B)(i),
The majority errs in converting language that does nothing more than confer discretion on the Attorney General to grant voluntary departure when a non-citizen is found to be eligible for that relief into a free-floating power to terminate voluntary departure at any time, even after the grant of that relief has become administratively final following his exercise of his discretion. One might imagine that such broad authority possessed by the Attorney General would find ample support in numerous precedents in our jurisprudence. It does not; nor does the underlying reading of the statute that the majority advances.
The majority reads the words in the voluntary departure statute beyond their sensible meaning, in the hope of supporting its dubious account of the Attorney General's powers that it must in order for the voluntary departure regulation to stand. Its reading is in error, and its decision, based upon this erroneous reading, would aggrandize the powers of the Attorney General beyond even his own desired reach, in a manner that is as unsupported as it is unwise.
Another provision in the Attorney General's regulation raises an important question that goes unaddressed by the majority. A subsequent portion of 8 C.F.R. § 1240.26(i) provides that a non-citizen who seeks judicial review, and whose voluntary departure is, as a result, automatically terminated, "will not be deemed to have departed under an order of removal if the alien departs the United States no later than 30 days following the filing of a petition for review," id., in other words, not later than 30 days after his entitlement to voluntarily depart has automatically terminated.
It is far from clear that the Attorney General possesses the authority to create this new form of departure. The Attorney General did not cite to any such authority in its rule-making or its briefs before this court. See generally 73 Fed.Reg. 76,927 (Dec. 18, 2008) (final rule); 72 Fed.Reg. 67,674 (Nov. 30, 2007) (proposed rule). This lack of express authority is troubling in light of Congress's statement that the statutory procedures governing removal are the "sole and exclusive" procedures by which a non-citizen may be removed from the country. 8 U.S.C. § 1229a(a)(3).
Finally, I note that I do not read the majority opinion to foreclose the possibility that the 30-day departure period following automatic termination, created as part of this new form of departure, may be stayed. The regulation clearly intends that we would have no authority to stay voluntary departure because, by virtue of the automatic termination, "there would no longer be any period of voluntary departure to be stayed or tolled during the pendency of the judicial review." 72 Fed.Reg. at 67,682. This logic would seem insufficient, however, to constrain our authority with regard to the new, 30-day departure period, which follows the automatic termination of the voluntary departure period. As the majority concedes, we retain equitable discretion "unless a statute clearly provides otherwise." United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 496, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001). The same principles that caused us to find that voluntary departure could be stayed in the first place might well support an argument that this new, 30-day departure period could also be stayed pending judicial review. Because Garfias-Rodriguez sought only a stay of his voluntary departure, however, and did not seek a stay of the new, unacknowledged, and unnamed 30-day departure period provided under this new form of departure, the question does not appear to be properly presented to us at this time. It will assuredly arise in the future, however.
The majority fails to recognize that there is, quite simply, no statutory authority for the Attorney General's regulation. The regulation conflicts with the congressional design, as expressed in the statutory scheme creating two distinct forms of voluntary departure, and finds no source in the statutory provision permitting the Attorney General to limit "eligibility" for voluntary departure. Further, there remains a serious question regarding the Attorney General's ability to create a new form of departure permitting non-citizens to depart, after their voluntary departure has terminated, without being removed. The majority thus errs in upholding this regulation as a legitimate exercise of the Attorney General's power.
I do not envy the immigration lawyer who must explain to his client the unconscionable logic inherent in the Attorney General's regulation. An immigrant's experience with our legal system is likely to be among his last — and most lasting — impressions of our country. It hardly becomes a nation that pledges its allegiance to providing "liberty and justice for all" to forfeit the rights of non-citizens who do no more than seek a decision from our court.
I respectfully dissent.
PAEZ, Circuit Judge, joined by REINHARDT, Circuit Judge, dissenting:
I respectfully dissent. I agree with the en banc panel majority's conclusion in Part
Brand X makes it clear that an agency cannot overrule a judicial decision, and that a court's first-in-time interpretation of an ambiguous statute is binding unless and until that court issues a judicial decision changing its rule of law in deference to an agency's permissible, alternative interpretation. Brand X, 545 U.S. at 983-84, 125 S.Ct. 2688. It follows from this principle that, in deferring to Briones and overruling our holding in Acosta v. Gonzales, 439 F.3d 550 (9th Cir.2006), we have changed the law of this circuit. We are bound, therefore, to follow the constitutional principles applicable to Article III courts, including "the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally." James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 537, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991). Indeed, the Supreme Court has admonished that "we can scarcely permit `the substantive law [to] shift and spring' according to `the particular equities of [individual parties'] claims' of actual reliance on an old rule and of harm from a retroactive application of the new rule." Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (alterations in original) (quoting Beam, 501 U.S. at 543, 111 S.Ct. 2439 (Souter, J., concurring)).
The majority's adoption of the retroactivity analysis we apply to an agency's articulation of a new rule, see Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th Cir.1982), violates these fundamental principles. In light of our recent decision in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.2011) (en banc), I would conclude that Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) supplies the proper rule of decision. Applying the Chevron Oil test, I conclude that our holding today should apply purely prospectively.
The Supreme Court explained in Brand X that Chevron deference is owed to an agency's interpretation of an ambiguous statute that contradicts a court's prior construction since agencies, not courts, fill "gaps" in the statutes they are charged with administering. 545 U.S. at 992, 125 S.Ct. 2688. Therefore, compelling agencies to follow judicial interpretations would "`lead to the ossification of large portions of our statutory law,' by precluding agencies from revising unwise judicial constructions of ambiguous statutes." Id. (quoting United States v. Mead Corp., 533 U.S. 218, 247, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (Scalia, J., dissenting)). In response to the
Id. at 983-84, 125 S.Ct. 2688 (emphasis added).
As the foregoing passage reveals, Brand X did not alter the fundamental balance of legislative and judicial power. It created nothing more than a new scenario wherein a court may, or sometimes must, change its prior rule of decision. Whether a court adopts a new rule because of revised views about the underlying law, because of intervening statutory changes, or because of its duty to decide in accord with Supreme Court precedent, its decision remains a judicial one. The same is true when a court overrules past precedent in deference to an agency.
It is axiomatic that Article III vests judicial power in the federal courts, not in agencies, and that our decisions are therefore constrained by its dictates. The Supreme Court's decisions in Harper and Beam elucidate the contours of this principle. In Beam, a Georgia distilling company brought a Commerce Clause challenge to an excise tax that distinguished between imported and local alcoholic products under the Commerce Clause. See 501 U.S. at 532, 111 S.Ct. 2439. The Supreme Court had previously sustained a Commerce Clause challenge to a substantially similar Hawaii statute in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984). Id. The Supreme Court of Georgia agreed with the distillery that Bacchus established that the Georgia tax violated the Commerce Clause, but refused to apply Bacchus retroactively to afford the distillery relief. Id. at 533, 111 S.Ct. 2439. The Supreme Court granted certiorari to consider the question of whether a rule of law, once announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law. Id. at 534, 111 S.Ct. 2439.
Although the decision did not produce a unified opinion for the Court, a majority of Justices agreed that once a case has announced a rule of federal law and applied "that rule with respect to the litigants" before the court, no court may "refuse to apply [that] rule ... retroactively after the case announcing the rule has already done so." Id. at 540, 111 S.Ct. 2439. In reaching this conclusion, the Court eschewed such "selective prospectivity" because it results in unequal treatment of similarly situated litigants, in violation of fundamental principles of judicial adjudication. Id. at 537-38, 111 S.Ct. 2439 ("[S]elective prospectivity ... breaches the principle that litigants in similar situations should be treated the same .... `We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a `new' rule of constitutional law.'") (quoting Desist v. United States, 394 U.S. 244, 258-259, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting)) (additional citation omitted); see also id. at 540, 111 S.Ct. 2439 (noting that the "equality principle, that similarly situated litigants should be treated the same" in the criminal context "carries comparable
In Harper, faced with a similar retroactivity question,
Id. at 95, 113 S.Ct. 2510 (quoting Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). In affirming Beam's holding and extending this principle to the civil context, the court commented that its "approach to retroactivity heeds the admonition that `[t]he Court has no more constitutional authority in civil cases than in criminal cases ... to treat similarly situated litigants differently.'" Id. at 97, 113 S.Ct. 2510 (quoting Am. Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, 214, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990) (Stevens, J., dissenting)).
The Court's holding limited Chevron Oil to the extent that state and lower federal courts had relied upon it to curtail the retroactive application of rules already applied to the parties to the case announcing the rule, in consideration of the particular equities of each case:
Id. at 95 n. 8, 113 S.Ct. 2510 (quoting Beam, 501 U.S. at 543, 111 S.Ct. 2439 (Souter, J., concurring)).
This precedent compels my conclusion that, as an Article III court, we should be guided by the fundamental principles of judicial adjudication. We may not weigh the retroactive effect of the rule we announce today in light of the equities of Mr. Garfias's particular circumstances, nor may we consider his individual reliance on Acosta. To do so would be contrary to the nature of judicial review, which prohibits our selective application of rules that we
The rule of Montgomery Ward inherently involves — indeed requires — an individualized inquiry into the equitable and reliance interests of the litigants. See 691 F.2d at 1333 (stating that the third factor considers "the extent to which the party against whom the new rule is applied relied on the former rule" while the fourth factor considers "the degree of the burden which a retroactive order imposes on a party"). For this reason, it creates the anomalous result that similarly situated litigants will face different resolutions of their claims where some relied on the old rule of law to their detriment while others did not. Indeed, even the majority acknowledges the odd result that the Montgomery Ward rule creates. See Maj. Op. at 523 n. 13 ("We express no opinion whether other applicants may avoid the retroactive effect of Briones.").
But this is not the only reason that Montgomery Ward's retroactivity analysis appears inappropriate to the Brand X scenario. Montgomery Ward struck a delicate balance between an agency's prerogative to develop and implement administrative policy through adjudication, and the need to protect litigants from the unfair surprise of applying a newly developed interpretation to their case. See 691 F.2d at 1328-29; see also Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1090 (9th Cir.2010) ("Montgomery Ward and its progeny deal with the problems of retroactivity created when an agency, acting in an adjudicative capacity, so alters an existing agency-promulgated rule that it deprives a regulated party of the advance notice necessary to conform its conduct to the rule.") (citations omitted).
In Montgomery Ward, Wards department store challenged a Federal Trade Commission cease and desist order which found that it had failed to comply with a rule requiring that customers have ready access to written warranty information. 691 F.2d at 1324-26. In reviewing the Commission's decision, the court first considered whether the order constituted an amendment of the rule, in which case the affected parties were entitled to adequate notice under the Administrative Procedure Act, or a mere adjudicatory restatement of the rule through application to unique facts. Id. at 1329. Having determined that certain portions of the order constituted a permissible interpretation of the rule, the court considered its retroactive effect. Id. at 1332.
These same concerns simply do not inhere in a court's decision to overrule past precedent applying Brand X deference. While an agency's interpretive flexibility is essential to its policymaking functions, stare decisis ensures the stability of judicial rules and mandates that our interpretations of statutes do not evolve in each case via the same dialectic process. See Laborers' Int'l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 386 n. 8 (3d Cir.1994) (noting that the retroactivity rationales articled in Harper and Beam "do not apply analogously to administrative agency adjudications, primarily because the doctrine of stare decisis is far less rigorous in that.... [A]n agency boasts both judicial and legislative powers. When an agency exercises its legislative powers, neither the `cases' or `controversies' prerequisite, nor the rule of stare decisis, rears its head.") (internal citations omitted); Dist. Lodge 64, Int'l Ass'n of Machinists and Aerospace Workers v. NLRB, 949 F.2d 441, 447 (D.C.Cir.1991) (noting that "Article III grounds" such as stare decisis and the principle that litigants in similar situation should be treated the same "are inapplicable to administrative adjudications"); see also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 97 L.Ed. 377 (1953) ("The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process.").
For these reasons, the Montgomery Ward framework is ill suited to resolving the retroactivity questions posed by Brand X deference.
The proper rule of decision stems not from Montgomery Ward but from the three-factor test articulated in Chevron Oil. Although, as the majority notes, Chevron Oil's continued validity has been questioned in light of Beam and Harper, we recently reaffirmed in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir.2011) (en banc), that Chevron Oil retains full force and effect "(1) in a civil case; (2) when we announce a new rule of law, as distinct from applying a new rule that we or the Supreme Court previously announced; (3) and when the new rule does not concern our jurisdiction." Id. at 691; see also id. at 691-92 (discussing cases that call Chevron Oil's continuing validity into question). We must, of course, consistent with Beam and Harper, apply our rule of decision either purely prospectively or purely retroactively, and may not engage in the "selective prospectivity" that inheres in considering the equitable and reliance interests of individual litigants. See id. at 690.
Applying the Chevron Oil factors to the case at hand, I conclude that the rule of Briones, which we adopt today as the law of our circuit, should apply purely prospectively.
"The three Chevron Oil factors are: (1) whether the decision `establish[es] a new principle of law'; (2) `whether retrospective operation will further or retard [the rule's] operation' in light of its history, purpose, and effect; and (3) whether our decision `could produce substantial inequitable results if applied retroactively.'" Nunez-Reyes, 646 F.3d at 692 (quoting Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. 349).
The first factor weighs against retroactivity. There is no question that we announce a new rule of law in overruling Acosta in deference to Briones. Nunez-Reyes, 646 F.3d at 692 ("There is no question that our decision today `establish[es] a new principle of law ... by overruling clear past precedent on which litigants may have relied.' Lujan-Armendariz [v. INS, 222 F.3d 728 (9th Cir.2000)] clearly announced the rule that equal protection required that we treat expunged state drug convictions as we do expunged federal drug convictions. Just as clearly, we overrule that holding today.") (quoting Chevron Oil, 404 U.S. at 106, 92 S.Ct. 349).
The government argues that "there was no established practice or authoritative interpretation of the INA prior to Briones" because Acosta constituted a "non-authoritative interpretation" of the interplay between §§ 212(a)(9)(C)(i)(I) and 245(i), and because, "[i]n light of Brand X, aliens were on notice that Acosta's interpretation was not authoritative and could not have foreclosed Briones's subsequent authoritative interpretation of the statutes ...." Gov't Supp. Br. at 23. As the majority discusses
Moreover, I find wholly unpersuasive the government's contention that Brand X put undocumented immigrants on notice that Acosta might not be the law of this circuit at some point in the future. As the majority acknowledges, even the BIA "equivocated over whether, post-Briones, it would acquiesce in our decision in Acosta." Maj. Op. at 516 (citing Briones, 24 I. & N. Dec. at 371 n. 9 ("We need not decide here whether to apply our holding in the Ninth and Tenth Circuits.")). Given that the BIA itself was unclear about the legal landscape and the proper course to follow, it is unreasonable to presume that undocumented immigrants would foresee the decision that we reach today.
For these reasons, I conclude that our decision to overrule Acosta is a new rule of law and that this factor weighs against retroactivity.
The second Chevron Oil factor is more ambiguous. We explained in Acosta that "[t]he statutory terms of § 245(i) clearly extend adjustment of status to aliens living in this country without legal status. This broad statement was based on a recognition that the statute's purpose is to allow relatives of permanent residents to avoid separation from their loved ones." 439 F.3d at 554 (internal quotation marks and citations omitted); see also id. at 555 ("[P]enalty-fee adjustment of status is intended to prevent the needless separation of families.") (citation omitted). The BIA has concluded, by contrast, that § 245(i) was not intended to make adjustment of status available to recidivist offenders. See Briones, 24 I. & N. Dec. at 365-67. As the Supreme Court explained in Brand X, the BIA's "decision to construe th[e] statute differently ... does not say that [our] holding was legally wrong. Instead, the [BIA] may ... choose a different construction, since the agency remains the authoritative interpreter (within the limits of reason)...." 545 U.S. at 983, 125 S.Ct. 2688.
In light of these two alternative, yet correct, interpretations of § 245(i)'s purpose, it is unclear whether retroactive application will further the rule's operation. Nonetheless, because we owe deference to the BIA's reasonable interpretation of § 245(i), I conclude that this factor weighs in favor of retroactivity.
The third factor, like the first, weighs against retroactivity. Our precedent suggests that, in the usual case, where the first factor is met, so is the third, because inequity necessarily results from litigants' reliance on a past rule of law. See Holt v. Shalala, 35 F.3d 376, 380-81 (9th Cir.1994) (finding the third Chevron Oil factor to be met "for the same reasons" as the first, since inequity would result from applying the new rule retroactively to the class of litigants who "reasonably relied on this Court's previous rule"); see also Nunez-Reyes, 646 F.3d at 692-93 (discussing inequities resulting from the court's abandonment of clear past precedent under the first Chevron Oil factor and stating that these inequities compel the conclusion that the third factor weighs against retroactivity since "[i]t would be manifestly unfair effectively to hoodwink aliens into waiving
More fundamentally, there is little question that our decision, if applied retroactively, could produce substantial inequitable results for the class of undocumented immigrants who applied for adjustment of status in reliance on Acosta. Deportation, particularly for an undocumented immigrant with a United States citizen spouse, is among the harshest of outcomes, rending families and threatening permanent separation from loved ones. Cf. Nunez-Reyes, 646 F.3d at 693 ("For those aliens who relied on Lujan-Armendariz, ... `[t]he potential for unfairness in the retroactive application' of today's decision `is significant and manifest.'") (quoting INS v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (alteration in original)). The Supreme Court has described deportation as a "harsh measure," INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), that "may result in loss of ... all that makes life worth living." Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 66 L.Ed. 938 (1922).
In our own circuit, we have held that the third Chevron Oil factor was met where a change in the statute of limitations would have barred the cause of action, Duncan v. Sw. Airlines, 838 F.2d 1504, 1507-08 & n. 4 (9th Cir.1987), where a change in the rules regarding preservation of issues for appeal would have deprived litigants of the right to appeal, United States v. Givens, 767 F.2d 574, 577-79 (9th Cir.), cert. denied, 474 U.S. 953, 106 S.Ct. 321, 88 L.Ed.2d 304 (1985), and where a change in the law would have expanded the scope of potential criminal liability, United States v. Goodheim, 651 F.2d 1294, 1297-98 (9th Cir.1981), abrogated on other grounds as recognized by United States v. Mulloy, 3 F.3d 1337, 1340 n. 2 (9th Cir.1993). Compare Gibson v. United States, 781 F.2d 1334, 1339 (9th Cir.1986) ("The final Chevron factor weighs dispositively against retroactive application, for it would yield substantial inequitable results to hold that the respondent slept on his rights at a time when he could not have known the time limitation that the law imposed upon him.") (internal quotations and citation omitted), with Orozco v. United Air Lines, Inc., 887 F.2d 949, 953 (9th Cir.1989) (finding that substantial injustice would not result from application of de novo, rather than arbitrary and capricious, standard of review to plan administrator's benefits determination, and therefore that the third Chevron Oil factor was not met). In my view, deportation, at a minimum, has a potential for injustice comparable to those events at issue in Duncan, Givens, and Goodheim.
For these reasons, I find that the third factor weighs decidedly against retroactivity.
Balancing the factors, I conclude that the rule we adopt today should not apply retroactively. "The first criterion is the most important. It is `the threshold test for determining whether or not a decision should be applied nonretroactively.'" Jackson v. Bank of Haw., 902 F.2d 1385, 1390 (9th Cir.1990) (quoting United States v. Johnson, 457 U.S. 537, 550 n. 12, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). The third factor, likewise, appears from our precedent to carry great weight, on balance, in the court's ultimate determination. See Int'l Ass'n of Machinists and Aerospace Workers v. Aloha Airlines, Inc., 790 F.2d 727, 736 (9th Cir.1986) ("Although the second Chevron Oil factor does favor retroactivity
Our decision to overrule Acosta amounts to a complete reversal of a settled rule of law upon which a vulnerable class of litigants reasonably and detrimentally relied. The equities tip heavily in their favor, since those who sought adjustment of status in reliance on Acosta will face deportation if our rule applies retroactively. Though the second factor weighs in favor of retroactivity, in light of the strength of the first and third factors, I conclude that the rule of Briones should apply in this circuit purely prospectively.
For these reasons, I respectfully dissent. The rule of Chevron Oil, not Montgomery Ward, should govern our retroactivity analysis in Brand X deference cases. Applying that rule here, our decision should apply prospectively, and Garfias's petition should be granted.
The process is similar to the "two-step process" for asylum in which "the applicant [must] first ... establish his eligibility for asylum ... and second ... show that he is entitled to asylum as a matter of discretion." Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004); see also Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir.2008) ("Once eligibility is established, it is within the Attorney General's discretion to grant asylum."); Zi Zhi Tang v. Gonzales, 489 F.3d 987, 992 (9th Cir.2007) ("Tang has established asylum eligibility. We remand for the Attorney General to exercise discretion in deciding whether to grant asylum."); Kumar v. Gonzales, 444 F.3d 1043, 1056 (9th Cir.2006) ("[W]e find Raj statutorily eligible for asylum, and we remand for an exercise of discretion on his asylum claim...."); Khup v. Ashcroft, 376 F.3d 898, 905 (9th Cir.2004) ("Khup is eligible for asylum and [we] remand for the Attorney General to make a discretionary decision regarding whether to grant asylum.").
The Second Circuit's decision in Muigai holds only that, after voluntary departure has been granted and the time period for departing has expired, the Attorney General (or his delegees) may make a discretionary and unreviewable decision whether to extend that period. Muigai v. INS, 682 F.3d 334, 337 (2d Cir. 1982). Muigai thus says nothing about the sequence of decision-making in the ordinary administrative proceeding (that is, when the time for voluntary departure has not expired, and thus provides no support at all for the majority's reading of the statute.) (Muigai is, of course, even less relevant today, now that the Attorney General's authority to extend the voluntary departure period has been eliminated (a fact the majority is acutely aware of). See Dada, 554 U.S. at 9-10, 128 S.Ct. 2307.)
The Tenth Circuit's decision in Van Dinh, admittedly, does make the distinction that the majority urges between an order by the Immigration Judge and a later, and discretionary, decision by the Attorney General. However, it does so in language that we have squarely recognized as dicta, see Spencer Enterprises, Inc. v. United States, 345 F.3d 683, 691 (9th Cir.2003) ("this interpretation was entirely unnecessary to the Tenth Circuit's holding"), in support of two propositions that we have squarely rejected: (1) that subsection (f) of the voluntary departure statute, 8 U.S.C. § 1229c(f), does not strip us of jurisdiction over the discretionary aspect of the decision to deny voluntary departure, see Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir.2010) (citing that provision for the proposition that we "lack jurisdiction to review" the Attorney General's "discretionary determination" regarding voluntary departure), and (2) that 8 U.S.C. § 1252(a)(2)(B)(ii)'s jurisdiction-stripping provision extends to decisions for which the discretionary authority is not established by statute, see Kucana, 130 S.Ct. at 839-40 ("To read § 1252(a)(2)(B)(ii) to apply to matters where discretion is conferred on the Board by regulation, rather than on the Attorney General by statute, would ignore [] congressional design."); Spencer, 345 F.3d at 691. I strongly doubt the majority wishes to reverse these well-established holdings rejecting the consequences of the Tenth Circuit's decision.
The asylum cases cited by the majority do not support its argument; to the contrary, they prove our point. The cases simply recognize that, when the Attorney General (or one of his delegees) finds, at the end of an asylum proceeding, that a non-citizen does not meet the eligibility criteria for asylum, there is no need for him to decide in that proceeding whether the non-citizen merits the favorable exercise of his discretion. Accordingly, when we reverse the Attorney General's determination regarding lack of statutory eligibility, we must remand for him to exercise in the remanded proceeding the discretion that he failed to exercise, but otherwise would have, in the initial proceeding. These cases say nothing about the Attorney General's ability to terminate asylum after it has been granted.
