Gutierrez-Brizuela v. Lynch

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: GORSUCH, Circuit Judge.
• Citation: Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016)
• Decision Date: 23 August 2016
• Docket Number: No. 14-9585,14-9585
• Parties: Hugo Rosario Gutierrez-Brizuela, Petitioner, v. Loretta E. Lynch, United States Attorney General, Respondent.

834 F.3d 1142

Hugo Rosario Gutierrez-Brizuela, Petitioner,

v.Loretta E. Lynch^* , United States Attorney General, Respondent.

No. 14-9585

United States Court of Appeals, Tenth Circuit.

August 23, 2016

Timothy Lee Cook, Law Office of Timothy L. Cook, Oklahoma City, Oklahoma, for Petitioner.

Monica Antoun, Trial Attorney, Office of Immigration Litigation (Benjamin C. Mizer, Principal Deputy, Assistant Attorney General, and Joyce R. Branda, Acting Assistant Attorney General, Civil Division, and Jennifer P. Levings, Senior Litigation Counsel, and Shelley R. Goad, Assistant Director, Office of Immigration Litigation, with her on the briefs) of the United States Department of Justice, Washington, D.C., for Respondent.

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.

GORSUCH, Circuit Judge.

We recently confronted the thorny problem what to do when an executive agency, exercising delegated legislative authority, seeks to overrule a judicial precedent interpreting a congressional statute. In our constitutional history, after all, judicial declarations of what the law is haven't often been thought subject to revision by the executive, let alone by an executive endowed with delegated legislative authority. Still, in recent years the Supreme Court has instructed us that, when a statute is ambiguous and an executive agency's interpretation is reasonable, the agency may indeed exercise delegated legislative authority to overrule a judicial precedent in favor of the agency's preferred interpretation. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ; Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs. (Brand X ), 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). And that development required us to confront this question: accepting that an agency may overrule a court, may it do so not only prospectively but also retroactively, applying its new rule to completed conduct that transpired at a time when the contrary judicial precedent appeared to control?

De Niz Robles v. Lynch , 803 F.3d 1165 (10th Cir. 2015). Now that curious question has returned, this time with a twist.

Our story starts with two provisions buried in our immigration laws: 8 U.S.C. §§ 1255(i)(2)(A) and 1182(a)(9)(C)(i)(I). The first statute “grants the Attorney General discretion to ‘adjust the status' of those who have entered the country illegally and afford them lawful residency.” De Niz Robles , 803 F.3d at 1167. The second “provides that certain persons who have entered this country illegally more than once are categorically prohibited from winning lawful residency ... unless they first serve a ten-year waiting period outside our borders.” Id. Observers have long noted the tension between the two laws and wondered which should control. Employing the usual tools of statutory interpretation, this court in 2005 determined that the Attorney General's discretion to afford relief without insisting on a decade-long waiting period remained intact. Padilla – Caldera v. Gonzales (Padilla – Caldera I ), 426 F.3d 1294, 1299–1301 (10th Cir. 2005), amended and superseded on reh'g by 453 F.3d 1237, 1242–44 (10th Cir. 2006).

That judicial declaration of what the law is turned out to be anything but the last word. Not because the Supreme Court disagreed. But because in 2007 the Board of Immigration Appeals (BIA) issued In re Briones , 24 I. & N. Dec. 355 (BIA 2007). There the BIA offered its view that—as a matter of policy discretion—the statutory tension should be resolved against affording the Attorney General any discretion to consider applications for adjustment of status when § 1182(a)(9)(c)(i)(I) applies. A conclusion directly at odds with the one we reached in Padilla – Caldera I. When the agency later sought to apply its new rule announced in Briones to a petitioner in this court, we agreed that the two statutory directives were ambiguous; that “step two” of Chevron required this court to assume that Congress had delegated legislative authority to the BIA to make a “reasonable” policy choice in the face of this statutory ambiguity; and that the Supreme Court's extension of Chevron in Brand X further required this court to defer to the agency's policy choice and overrule our own governing statutory interpretation in Padilla – Caldera I. See Padilla – Caldera v. Holder (Padilla – Caldera II ), 637 F.3d 1140, 1148–52 (10th Cir. 2011).

But even that was hardly the end of it. Everyone accepts that, after Padilla – Caldera II, all future petitioners must satisfy the ten-year waiting period and may not seek discretionary relief from the Attorney General. But what about petitioners who applied for discretionary relief in express reliance on Padilla – Caldera I, before the BIA's announcement of its contrary interpretation in Briones ? In De Niz Robles, the BIA sought to apply Briones retroactively to foreclose any chance of discretionary relief for this class of persons. This court disallowed the attempt, holding that because the agency's promulgation of a new rule of general applicability under Chevron step two and Brand X is an exercise of delegated legislative policymaking authority, it is subject to the presumption of prospectivity that attends true exercises of legislative authority. 803 F.3d at 1172–74.

The BIA isn't one to give up, though. Today it brings us a new case that involves a (slight) variation. Like Mr. De Niz Robles, Hugo Gutierrez-Brizuela applied for adjustment of status in reliance on our decision in Padilla – Caldera I during the period it remained on the books. About that much there is no dispute. But unlike Mr. De Niz Robles, Mr. Gutierrez-Brizuela applied for relief during the period after the BIA's announcement of its contrary interpretation in Briones yet before Padilla–Caldera II declared Briones controlling and Padilla – Caldera I effectively overruled. The BIA suggests this factual distinction makes all the legal difference. But we fail to see how. Indeed, the government's position in this appeal seems to us clearly inconsistent with both the rule and reasoning of De Niz Robles.

Take the rule first. De Niz Robles held that Briones was not legally effective in the Tenth Circuit until this court discharged its obligation under Chevron step two and Brand X to determine that the statutory provisions at issue were indeed ambiguous, that the BIA's interpretation of them was indeed reasonable, and that Padilla – Caldera I was indeed overruled. As we explained, “[a]n agency in the Chevron step two/Brand X scenario may enforce its new policy judgment only with judicial approval. So, for example, the BIA depended on Padilla – Caldera II to render Briones effective.” Id. at 1174 n.7. Until this court handed down Padilla – Caldera II, then, Padilla – Caldera I remained on the books as binding precedent in the Tenth Circuit on which litigants were free (and expected) to rely, and Briones bore no legal force. Yet, despite De Niz Robles's clear holding on this very score, the BIA today seeks to apply Briones to conduct in this circuit that predates Padilla – Caldera II —when Padilla – Caldera I was the controlling law of this circuit and Briones was not. That De Niz Robles expressly forbids. Cf. Bankers Trust N.Y. Corp. v. United States , 225 F.3d 1368, 1376 (Fed. Cir. 2000) (noting that where “the original decision was based on direct judicial construction of [a] statute, not deference” to the agency, it remains “the law of this circuit” until it is “overturned” or a “later amendment to the statute is effective”).

Next consider the reasoning. In De Niz Robles we explained that, to the extent the executive is permitted to exercise delegated legislative authority to overrule judicial decisions, logic suggests it should be bound by the same presumption of prospectivity that attends true legislative enactments. 803 F.3d at 1172. After all, agents usually depend upon (and are limited to) the powers enjoyed by their principals. See generally Restatement (Second) of Agency § 17 (1958). And we know that, if Congress had sought to amend the law to unseat a judicial decision like Padilla – Caldera I, absent some clear direction otherwise (and subject to constitutional limitations on retroactive legislation), its actions would have controlled conduct arising only after the legislation went into effect. See Landgraf v. USI Film Prod. , 511 U.S. 244, 270–73, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). And here Briones went into effect in this circuit only when this court handed down Padilla – Caldera II. Meaning that individuals like both Mr. De Niz Robles and Mr. Gutierrez-Brizuela would have been free to rely on Padilla – Caldera I. Neither, as we explained in De Niz Robles, can we think of a sound reason why persons should be left in worse shape simply because they are the subjects of delegated legislative action rather than subjects of true legislative action. Indeed, as we noted in De Niz Robles, the Supreme Court itself has expressly recognized that “[c]ongressional enactments ... will not be construed to have retroactive effect unless their language requires this result. By the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.” 803 F.3d at 1172 (quoting Bowen v. Georgetown Univ. Hosp. , 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (internal quotation marks omitted)). And, of course, no one before us contends that Congress has expressly conveyed to the BIA the power to declare its rules retroactive.¹

The due process and equal protection concerns that animated our holding in De Niz Robles also apply to this case. In De Niz Robles we explained that legislation is presumptively prospective in its operation because the retroactive application of new penalties to past conduct that affected persons cannot now...