U.S. Department of Justice Washington, D.C. 20530 Vol. 16, No. 10 October 2012 LITIGATION HIGHLIGHTS Ninth Circuit En Banc Untangles Application of Ret- roactivity Principles when Chevron Deference Un- ADJUSTMENT der Brand X is Given to an Interpretation by the BIA ►Prior removal form United States rendered applicant ineligible for ad- Pursuant to the “Judicial Power” Ninth Circuit in Garfias-Rodriguez v. justment (7th Cir.) 15 Holder, __F.3d__, 2012 WL 5077137 vested in Article III courts over cases ASYLUM arising under the Laws of the United (9th Cir. Oct. 19, 2012). The court’s States, when a U.S. Court of Appeals discussion is rooted in the BIA’s role ►Spouse of an individual forced to interprets a federal statute, it pro- as the authoritative interpreter of undergo an abortion under China’s vides an authoritative statement of its ambiguous INA provisions as ex- coercive population control policy is meaning and announces the law of plained in Chevron, U.S.A., Inc. v. Nat- not automatically entitled to asylum the circuit. Moreover, when the court ural Res. Def. Council, Inc., 467 U.S. (1st Cir.) 13 as a judicial decisionmaker also 837 (1984), and Nat’l Cable & Tele- ►Persons returning from the Unit- changes the law of the circuit, it fol- comms. Ass’n v. Brand X Internet ed States with citizen children, and lows that the analysis in Chevron Oil Servs., 545 U.S. 967 (2005), and perceived as wealthy, are not a partic- Co. v. Huson, 404 U.S. 97 (1971), pursuant to the “Executive Power” to ular social group (1st Cir.) 13 which sets forth retroactivity factors to ensure that the laws be faithfully exe- ►Department of State Country Re- consider when a court changes the cuted. See U.S. Const. art. II sec. 1, ports sufficient to rebut presumption law is controlling. sec. 3. of future persecution (10th Cir.) 21 CONVENTION AGAINST TORTURE Although these principles are Understanding the en banc well settled in the Ninth Circuit, their court’s opinion requires an under- ►CAT denial remanded to BIA be- applicability when the BIA construes standing of the complex procedural cause it did not apply the clear error the meaning of an ambiguous INA posture in which the case arrived in standard of review (9th Cir.) 17 provision in a precedential decision CRIME was recently decided by the en banc (Continued on page 2) ►Attempted kidnapping under Cali- fornia law is categorically a crime of violence (9th Cir.) 18 Alien Divorce, and Related Curiosities ►Risk of injury to child under Con- necticut law is not “sexual abuse of a Immigration is about relation- counterpart – unmarriage, or di- minor” under INA (1st Cir.) 13 ships. Central to our regulation of vorce – must also be given its due. who may visit or join our society are As the sage observed, a good mar- WAIVER familial bonds which may or may not riage is a treasure, but a good di- ►Constitutional challenge to regu- conform to the requirements of our vorce is a miracle. lation governing religious visas proce- laws and jurisprudence. See Ezer, dures rejected (9th Cir.) 18 The Intersection Of Immigration Law This note takes a look at the and Family Law, 40 Fam. L. Q. 339 immigration aspects of divorce. (Fall 2006). Because marriage can Paul Simon counseled that there are both confer and preclude immigra- “50 Ways To Leave Your Lover,” but Inside tion benefits, the ques-tion whether breaking up without a righteous di- a marriage has been properly dis- vorce can bust more than the alien’s 12. Further Review Pending solved may be as important as heart. As Professor Friedman ex- 13. Summaries of Court Decisions knowing whether it was lawfully con- plains, divorce may have economic, tracted. Our clients and the courts moral, and symbolic meaning, but it 19. Topical Parentheticals rightfully give considerable attention is above all a legal matter. Fried- 22. Inside OIL to the institution of marriage, but its (Continued on page 3) 1 October 2012 Immigration Litigation Bulletin cy decision as though it had issued Retroactivity of BIA’s Branded X Decisions from the court itself.” (Continued from page 1) of the interplay between sections 212 the Ninth Circuit. The Garfias line of (a)(9)(C)(i)(I) and 245(i) in Matter of Third, the court rejected the gov- cases, which involves § 212(a)(9)(C) Briones, 24 I. & N. Dec. 355 (BIA ernment’s position that the BIA, as the (i)(I) (unlawful re-entry following un- 2007), finding that aliens inadmissi- authoritative interpreter of an ambigu- lawful presence) follows a track paral- ble under 212(a)(9)(C)(i)(I) were ineli- ous statute, has issued an interpreta- lel to a line of cases addressing § 212 gible to adjust status under 245(i). tion in Briones that is comparable to a (a)(9)(C)(i)(II) (unlawful re-entry follow- The Ninth Circuit next issued Gonza- judicial construction of a statute and ing prior removal). After Congress les v. Dep’t of Homeland Sec., 508 is an authoritative statement of what amended the INA by adding the inad- F.3d 1227 (9th Cir. 2007), where it the statute meant before as well as missibility provisions of § 212(a)(9)(C) accorded Chevron deference under after the decision of the case giving for recidivist immigration violators, Brand X to the authoritative interpre- rise to that construction. The court the former INS issued a memoran- tation of section 212(a) clarified that agency dum providing that aliens inadmissi- (9)(C)(i)(II) as set forth decisions are not anal- ble under § 212(a)(9)(C) were not in Torres-Garcia. Because the BIA is ogous to court deci- sions because an eligible to adjust status under § 245 “the authoritative arbi- (i). Immigration judges routinely fol- Subsequently, in agency interpretation lowed this guidance, and their deci- Morales-Izquierdo v. ter” of the meaning of is not a once-and-for- sions were affirmed in unpublished Dep’t of Homeland ambiguous provisions always definition of BIA decisions. Sec., 600 F.3d 1076 of the INA, Briones, what the statute (9th Cir. 2010), the and not the court’s de- means, but an act of In 2004, the Ninth Circuit issued court applied Gonzales cision according defer- interpretation in light Perez-Gonzalez v. Ashcroft, 379 F.3d retroactively to all cas- of its policymaking 783 (9th Cir. 2004), where it rejected es open on direct re- ence to Briones, responsibilities that the former INS memorandum’s appli- view. In doing so, the “announced” and may be reconsidered cation to § 212(a)(9)(C)(i)(II), and con- court explained that, “changed” the law of “on a continuing ba- cluded that aliens inadmissible under when it accords defer- the circuit. sis.” 212(a)(9)(C)(i)(II) were eligible to ad- ence to the BIA’s au- just status under 245(i). Perez- thoritative interpreta- Fourth, because Gonzalez relied on former §§ 212.2 tion of the INA, it “adopts” that inter- the court determined that the BIA, and (e) and (i)(2) of the regulations to rec- pretation as its own. Morales- not the court as a judicial deci- oncile the inadmissibility provision Izquierdo, 600 F.3d at 1089-90. sionmaker, “changed” the law of the with the special adjustment of status More specifically, the court ruled that circuit, it follows that the analysis in provision. a statute can only have one meaning Montgomery Ward & Co. v. FTC, 691 and that the court’s decisions estab- F.2d 1322 (9th Cir. 1982), which sets Two years later, exercising its lish that meaning, regardless of the forth retroactivity factors to consider authority under Brand X, the BIA is- relevant adjudicatory history. Id. at when an agency changes its law is sued an authoritative interpretation of 1089. In Garfias, the en banc court controlling. After applying the Mont- the interplay between §§ 212(a)(9)(C) overruled Morales-Izquierdo’s ra- gomery Ward test, the court held that (i)(II) and the regulations in Matter of tionale. the BIA’s decision may be applied ret- Torres-Garcia, 23 I. & N. Dec. 866 roactively to Mr. Garfias. (BIA 2006), finding that, because the First, the en banc court unani- regulations predated section 212(a) mously deferred to the BIA’s permissi- Finally, an eight judge majority (9)(C)(i)(II), they could not be reasona- ble interpretation of the interplay be- held that 8 C.F.R. § 1240.26(i), which bly construed as implementing the tween §§ 212(a)(9)(C)(i)(I) and 245(i) terminates any grant of voluntary de- statute. Shortly thereafter, the Ninth in Briones. parture upon the filing of a petition for Circuit, relying on Perez-Gonzalez, judicial review of a removal order, was issued a decision in Acosta v. Gonza- Second, a highly fragmented a proper exercise of the Attorney Gen- les, 439 F.3d 550 (9th Cir. 2006), court, which resulted in a 6-1-1-1-2 eral’s authority under §§ 240B(b)(1) where it rejected the former INS mem- split decision, held that, because the and 240B(e), and that the court pos- orandum’s application to section 212 BIA is “the authoritative arbiter” of the sesses no equitable authority to stay (a)(9)(C)(i)(I) and concluded that al- meaning of ambiguous provisions of voluntary departure periods contrary iens inadmissible under 212(a)(9)(C) the INA, Briones, and not the court’s to the Attorney General’s regulation. (i)(I) were eligible to adjust status un- decision according deference to Brio- der 245(i).