10 Cir rejects retroactivity of BIA decisions which change circuit precedent

By Mark R. Barr

The U.S. Court of Appeals for the Tenth Circuit issued a precedential decision this week finding that a ruling from the BIA which interprets an ambiguous statute, and which overrules prior circuit court precedent under Brand X, should be presumed to act prospectively only. De Niz Robles v. Lynch, No. 14-9568, slip op. (10th Cir. Oct. 20, 2015). The decision will have a potentially sweeping impact on individuals who relied on controlling Tenth Circuit precedent only to have those settled expectations upset by an intervening, contrary Board decision.

Our client, Alfonzo De Niz Robles, wanted to get a green card. A case from the Tenth Circuit, Padilla-Caldera v. Gonzales (Padilla-Caldera I), 246 F.3d 1294 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237 (10th Cir. 2006), said he could, even though he was subject to the “permanent bar” for having been in the United States unlawfully for more than a year, departing, and re-entering without inspection. In Padilla-Caldera I, the Tenth Circuit said that a different statute, INA § 245(i), which forgives an unlawful entry with the payment of a penalty-fee, “trumped” the permanent bar.

Relying on the controlling authority of Padilla-Caldera I, Mr. De Niz Robles applied for his green card. Then the agency stalled. During the prolonged delay, the law changed underneath Mr. De Niz Robles’ feet. In 2007, the BIA issued Matter of Briones, 24 I&N Dec. 355 (BIA 2007), finding the permanent bar to be the dominant statute. And in 2011, the Tenth Circuit adopted the agency rationale as its own, holding in Padilla-Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140 (10th Cir. 2011), that the permanent bar trumped § 245(i).

With the change in law from Padilla I to II, Mr. De Niz Robles’ green card application was denied and he was ordered removed from the country. The flip-flop from Padilla I to II was made possible by the Supreme Court’s decision in National Cable & Telecommunications Associations v. Brand X Internet Services et al., 545 U.S. 967 (2005), which held that a circuit court must defer to an administrative agency’s reasonable interpretation of an ambiguous statute, even if the agency’s decision came after an earlier, contrary interpretation by the circuit court.

Mr. De Niz Robles challenged the retroactive application of the change in law to his case, arguing that he reasonably relied on the controlling, judicial interpretation in place at the time he filed his green card application. On Wednesday, the Tenth Circuit agreed with him.

In reaching this conclusion, the Tenth Circuit recognized two long-standing principles about retroactivity—that legislation rarely applies backwards, while judicial decisions almost always do. Acknowledging that a Brand X scenario doesn’t fit neatly within either set of principles, the Court reasoned that an agency “operating under the aegis of Chevron [ambiguity] and Brand X comes perhaps as close to exercising legislative power as it might ever get.” De Niz Robles, No. 14-9568, slip op. at 13. Therefore, the presumption of prospective application that attaches to legislation should also apply.

In addition, the same due process and equal protection concerns that underlie the presumption against retroactive legislation also apply to agency action in the Brand X context. The Court expressed its concern with permitting an agency “influenced by policy and politics” to “undo settled expectations in favor of a new rule of general applicability.” Id. at 19. It warned that sanctioning an agency’s use of retroactive power, while operating under Brand X, would allow it to “punish those who have done no more than order their affairs around existing law,” with the ability to “single out disfavored persons and groups and punish them for past conduct they cannot now alter.” Id.

The Court aligned its reasoning with the leading Supreme Court precedent on agency adjudicatory powers, SEC v. Chenery Corp. (Chenery II), 332 U.S. 194 (1947). In Chenery II, the Supreme Court limited the ability of agencies to use adjudicatory proceedings as a means of creating new rules with a retroactive applicability, requiring an agency to “balance[]” the “ill effects” associated with retroactive application of a new rule against “the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.” De Niz Robles, No. 14-9568, slip op. at 21 (quoting Chenery II, 332 U.S. at 202).

The Tenth Circuit reasoned that a Brand X situation would almost always involve more “ill effects” associated with overturning existing circuit court precedent and applying the new, controlling agency decision retroactively than any “mischief” caused by a prospective-only application. De Niz Robles, No. 14-9568, slip op. at 21. In fact, the court of appeals noted that it would be difficult to find any Brand X scenario in which a prospective-only application of the new agency rule would be “contrary to [any] statutory design or to legal and equitable principles.” Id. (quoting Chenery II, 332 U.S. at 203).

Addressing the particular facts of Mr. De Niz Robles’ case, the Tenth Circuit found that its change in position from Padilla I to II, caused by the BIA’s decision in Briones, was “an abrupt departure” from existing practice. De Niz Robles, No. 14-9568, slip op. at 25. When Mr. De Niz Robles filed his green card application, “Padilla-Caldera I was on the books and expressly permitted his application,” and it was only due to Brand X that the agency was able to trigger the Court’s “180-degree-opposed judgment.” Id. at 26. Indeed, the “whole point of Brand X is to permit the agency” to change the rules. Id.

The Court rejected the government’s argument that it was unreasonable for Mr. De Niz Robles to rely on the controlling authority of Padilla-Caldera I when he applied for his green card because that ruling was always vulnerable to potential revision by the BIA under Brand X. Recognizing that “trying to figure out what the controlling rule is and how to order your affairs accordingly can be tough enough,” the Court found the government’s suggestion that a person can never rely on a controlling judicial decision, because it might be changed later by the agency, “would be to create a trap for the unwary and paradoxically encourage those who bother to consult the law to disregard what they find.” Id. at 28.

Finally, comparing the significant harm caused to Mr. De Niz Robles by the loss of a chance to be considered for residency against the possible harm to the government, the Court found it difficult “to see any significant—or really any—harm befalling the BIA” if it had to apply Padilla-Caldera I to the green card application. Id. at 30. Responding to the governmental interest in “uniformity,” the Court responded by noting that upholding the application of Padilla-Caldera I to Mr. De Niz Robles “would itself advance uniformity, if of a different kind,” in the sense that non-citizens “should receive the benefit of the law as it existed at the time they made their administrative applications.” Id. at 30-31.

To be sure, De Niz Robles did not arise out of a criminal basis of removal. The Tenth Circuit’s refusal to bend to the BIA’s shifts in doctrine, however, are equally applicable to crime-based removal. Attorneys representing migrants who have been convicted of a crime regularly encounter the problems of shifting BIA interpretations. As with our client, the BIA asserts that those changes are owed deference by federal courts no matter how severe the impact. See, e.g., Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012) (regarding the obstruction of justice aggravated felony); Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007) (regarding the particularly serious crime bar to withholding of removal). This week’s decision will help attorneys push back against claims by DHS and the BIA that new BIA interpretations of crime-based removal provisions ought to always apply retroactively.

Mark Barr is the senior associate attorney at Lichter Immigration in Denver, Colorado, where his practice focuses on removal defense, persecution-based protection, detention issues, family-based benefit applications and federal litigation. He also serves on the Amicus Committee of the American Immigration Lawyers Association, helping to coordinate litigation efforts in various federal courts on issues of importance to immigration law and policy.