942 F.3d 874 (9th Cir. 2019), 15-73514, Szonyi v. Barr

Docket Nº:15-73514
Citation:942 F.3d 874
Party Name:Istvan SZONYI, Petitioner, v. William P. BARR, Acting Attorney General, Respondent.
Attorney:David Timothy Raimer (argued), Jones Day, Washington, D.C.; Meir Feder, Jones Day, New York, New York; for Petitioner. Leslie McKay (argued) and Bryan S. Beier, Senior Litigation Counsel; Terri J. Scadron and John W. Blakeley, Assistant Directors; Joseph H. Hunt, Assistant Attorney General; Offic...
Judge Panel:Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges. Dissent to Order by Judge Collins; Opinion by Judge Clifton; Dissent by Judge Fisher COLLINS, Circuit Judge, with whom BEA, Circuit Judge, joins, dissenting from denial of rehearing en banc: CLIFTON, Circuit ...
Case Date:February 13, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 874

942 F.3d 874 (9th Cir. 2019)

Istvan SZONYI, Petitioner,

v.

William P. BARR, Acting Attorney General, Respondent.

No. 15-73514

United States Court of Appeals, Ninth Circuit

February 13, 2019

Argued and Submitted October 10, 2018 Portland, Oregon

Amended November 13, 2019

David Timothy Raimer (argued), Jones Day, Washington, D.C.; Meir Feder, Jones Day, New York, New York; for Petitioner.

Leslie McKay (argued) and Bryan S. Beier, Senior Litigation Counsel; Terri J. Scadron and John W. Blakeley, Assistant Directors; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Jennifer Lee Koh and Andrew Michael Knapp, Western State College of Law, Irvine, California, for Amicus Curiae American Immigration Lawyers Association.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX7-327

Before: Raymond C. Fisher, Richard R. Clifton, and Consuelo M. Callahan, Circuit Judges.

Dissent to Order by Judge Collins; Opinion by Judge Clifton; Dissent by Judge Fisher

Page 875

SUMMARY[*]

Immigration

The panel filed: 1) an order amending its prior opinion, denying panel rehearing, and denying, on behalf of the court, rehearing en banc; and 2) an amended opinion denying Istvan Szonyi's petition for review of a decision of the Board of Immigration Appeals.

In the amended opinion, the panel upheld the BIA's interpretation of the phrase, "single scheme of criminal misconduct," which operates as an exception to the ground of removal, under 8 U.S.C. § 1227(a)(2)(A)(ii), for a person who has been convicted of "two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct."

In Matter of Adetiba, 20 I. & N. Dec. 506 (BIA 1992), the BIA affirmed the following interpretation of the phrase "single scheme of criminal misconduct": "when an alien has performed an act, which, in and of itself, constitutes a complete, individual, and distinct crime, he is deportable when he again commits such an act, even though one may closely follow the other, be similar in character, and even be part of an overall plan of criminal misconduct." The BIA said that it would apply this interpretation in all circuits except those that had adopted more expansive interpretations. That exception applied to this circuit, whose previous interpretation of the phrase encompassed distinct crimes that were part of the same overall plan. However, in Matter of Islam, 25 I. & N. Dec. 637 (BIA 2011), the BIA announced that it would apply the interpretation from Matter of Adetiba in all circuits.

Szonyi, a lawful permanent resident, forced three women to commit sexual acts under threat of violence over a five- to six-hour period. For those acts, Szonyi pled guilty to two counts of oral copulation in violation of California Penal Code § 288a(c) and two counts of sexual penetration with a foreign object in violation of California Penal Code § 289. Based on these offenses, the BIA ultimately concluded that Szonyi was removable because his crimes did not arise out of a single scheme under BIA precedent.

The panel rejected Szonyi's argument that this court's precedent forecloses the BIA's interpretation of the phrase "single scheme of criminal misconduct," upholding the BIA's interpretation under principles of deference under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). As a preliminary matter, the panel concluded that, because the BIA's position appeared to be set based on its opinion in Matter of Islam at the time of Szonyi's proceedings, Szonyi did not have to exhaust his challenge to the BIA's interpretation.

Observing that, under Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005), the court does not defer, under Chevron, where a prior court decision holds that its construction follows from the unambiguous terms of the statute, the panel concluded that no circuit precedent held that the text of the statute unambiguously foreclosed the BIA's interpretation here. The panel also rejected Szonyi's contentions that the BIA's interpretation was impermissible based on congressional intent and constitutional avoidance. With respect to the latter issue, the panel explained that the Supreme Court's recent vagueness jurisprudence is distinguishable from the present case.

The panel also rejected Szonyi's argument that, even if the BIA's construction of the statute was permissible, the agency could not retroactively apply that standard to this case. Analyzing the relevant factors set out by Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982), the panel concluded that, on balance, the retroactive application of the BIA's interpretation was not improper. The panel further rejected Szonyi's argument that, even under BIA precedent he was not removable, concluding that the BIA's analysis was consistent with its precedent.

Finally, the panel upheld the agency's denial of discretionary relief, rejecting Szonyi's contention that the BIA failed to consider all favorable and unfavorable factors bearing on his eligibility.

Dissenting, Judge Fisher disagreed with the majority's conclusion that the BIA reasonably applied its precedent to this case. Judge Fisher wrote that BIA precedent squarely holds that two or more crimes committed during a single criminal episode arise from a single scheme of criminal conduct unless they are marked by a "substantial interruption that would allow the participant to disassociate himself from his enterprise and reflect on what he has done" between crimes. Judge Fisher would grant the petition for review and remand to the BIA for an adequate explanation because it cannot be discerned from the record whether or how the BIA applied this precedent in this case, where the petitioner's crimes were part of a single and continuous criminal episode, and there was nothing in the record to suggest there was a "substantial interruption" between the crimes.

Dissenting from denial of rehearing en banc, Judge Collins, joined by Judge Bea, wrote that this case well illustrates why the Chevron doctrine has become the subject of so much recent criticism. Noting the separation-of-powers concerns that arise where, as here, the Chevron doctrine has the effect of placing the ability to construe authoritatively the limits on an agency's power in that agency's own self-interested hands, Judge Collins wrote that it is critical that courts enforce Chevron's condition that an agency's construction of an ambiguous provision merits deference only if it is a reasonable reading of the actual words of the statute. Judge Collins wrote that the panel failed to do that here; instead, it upheld an agency construction that this court has consistently rejected as being based on an impermissible rewriting of the statutory text.

With respect to step one of Chevron, Judge Collins agreed with the panel's conclusion that the relevant statutory language is ambiguous, and that nothing in the court's precedent required a contrary conclusion. However, Judge Collins wrote that the BIA's construction of the phrase is unreasonable under Chevron step two, and should be rejected. Accordingly, Judge Collins concluded that the proper course would be to remand the matter to the BIA to adopt a new construction that interprets, rather than rewrites, the statute.

ORDER

The opinion filed on February 13, 2019, is hereby amended as follows:

1. On page 15 of the slip opinion, in the first full paragraph, replace: As of then, however, the BIA itself had consistently applied its own narrower approach. It was not until 1992, a decade after Szonyi pled guilty, that the BIA announced that it would only apply its interpretation outside circuits, like the Ninth Circuit, that had adopted a more expansive interpretation. Id. at 511. Thus, at the time Szonyi pled guilty, it could reasonably have been anticipated that the BIA would apply its own interpretation.

with the following: As of then, however, the BIA had not clearly indicated whether it would follow these broader interpretations or its own precedent. It was not until 1992, a decade after Szonyi pled guilty, that the BIA announced that it would apply its interpretation outside circuits, like the Ninth Circuit, that had adopted a more expansive interpretation. Id. at 511. Thus, at the time Szonyi pled guilty, it should not have come as a "complete surprise" that the BIA would apply an interpretation that held him removable. See

Lemus, 842 F.3d at 649.

With these amendments, Judge Clifton and Judge Callahan have voted to deny the petition for panel rehearing. Judge Fisher has voted to grant it. Judge Callahan has voted to deny the petition for rehearing en banc, and Judge Clifton has so recommended. Judge Fisher has recommended granting it.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en banc (Docket Entry No. 67) are otherwise DENIED, no further petitions will be accepted.

COLLINS, Circuit Judge, with whom BEA, Circuit Judge, joins, dissenting from denial of rehearing en banc:

This case well illustrates why Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), has become the subject of so much recent criticism. Under Chevron, we are required to give deference to an agencys reasonable construction of ambiguous language...

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