Robles v. Lynch

• Decision Date: 20 October 2015
• Docket Number: No. 14–9568.,14–9568.
• Citation: 803 F.3d 1165
• Parties: Alfonzo DE NIZ ROBLES, Petitioner, v. LorettA E. LYNCH, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

803 F.3d 1165

Alfonzo DE NIZ ROBLES, Petitioner

v.LorettA E. LYNCH^* , United States Attorney General, Respondent.

No. 14–9568.

United States Court of Appeals, Tenth Circuit.

Oct. 20, 2015.

Laura L. Lichter (Mark Robert Barr on the briefs) of Lichter Immigration, Denver, CO, for Petitioner.

Jesse M. Bless, Trial Attorney, Office of Immigration Litigation (Joyce R. Branda, Acting Assistant Attorney General, Civil Division and Anthony C. Payne, Senior Litigation Counsel, Office of Immigration Litigation) of the United States Department of Justice, Washington, D.C., for Respondent.

Before TYMKOVICH, Chief Judge, GORSUCH and HOLMES, Circuit Judges.

Opinion

GORSUCH, Circuit Judge.

In our constitutional order legislative enactments normally apply only prospectively while judicial decisions also bear retroactive application. But what's the rule when an executive agency exercises delegated legislative policymaking authority in what looks like a judicial proceeding? That's the peculiar question posed by this case. It comes to us this way. Buried deep in our immigration laws lie these two provisions: 8 U.S.C. §§ 1255(i)(2)(A) and 1182(a)(9)(C)(i)(I). Enacted first, § 1255(i) grants the Attorney General discretion to “adjust the status” of those who have entered the country illegally and afford them lawful residency. But growing concerns about illegal immigration eventually induced Congress to enact § 1182(a), which appears to take away at least part of the discretion § 1255(i) gives. Among other things, § 1182(a)(9)(C) provides that certain persons who have entered this country illegally more than once are categorically prohibited from winning lawful residency here—that is, unless they first serve a ten-year waiting period outside our borders. Taken together, these provisions seem to render Alfonzo De Niz Robles and others like him simultaneously eligible and ineligible for relief.

How to make sense of this statutory tension? When confronted with the question in 2005, this court held that § 1255(i) trumped and that the Attorney General's discretion to afford relief remained intact. Meaning that Mr. De Niz Robles and those similarly situated could file petitions for adjustment of status. Which is exactly what Mr. De Niz Robles did, filing a petition in reliance on our decision not long after it issued. See Padilla–Caldera v. Gonzales (Padilla–Caldera I ) , 426 F.3d 1294, 1300–01 (10th Cir.2005), amended and superseded on reh'g, 453 F.3d 1237, 1244 (10th Cir.2006).

But ours turned out to be hardly the last word. In 2007, the Board of Immigration Appeals issued In re Briones, 24 I. & N. Dec. 355 (BIA 2007). There the agency held that it's § 1182(a)(9)(C)(i)(I) that does the trumping and, as a result, the Attorney General lacks any discretion to adjust the status of illegal reentrants like Mr. De Niz Robles. Neither is there any way to reconcile Padilla–Caldera I and Briones. By everyone's admission, they are just implacably opposed. So whose opinion governs?

Usually, executive agencies can't overrule courts when it comes to interpreting the law. Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948). But like most rules this one bears its exceptions and here we confront a curious one. If a statutory scheme administered by an executive agency is “ambiguous,” then “step two” of 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), requires this court both to assume that Congress has “delegated policy-making responsibilities” to the agency and to defer to the agency's “policy choice[ ]” so long as that choice is “reasonabl[y]” consistent with the legislative scheme. Id. at 865–66, 104 S.Ct. 2778. Taking the point further still, National Cable & Telecommunications Ass'n v. Brand X Internet Services (Brand X), 545 U.S. 967, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), requires this court to defer to the agency's policy choice even when doing so means we must overrule our own preexisting and governing statutory interpretation. Id. at 981–83, 125 S.Ct. 2688. Together, then, these decisions mean that there are indeed some occasions when a federal bureaucracy can effectively overrule a judicial decision.

That's exactly what happened here. After the BIA handed down Briones this court acknowledged that the statutory directives found in §§ 1255(i)(2)(A) and 1182(a)(9)(C)(i)(I) are ambiguous; that under Chevron step two this ambiguity entitled the BIA to make a reasonable quasi-legislative policy choice of its own; and that Briones qualified as just such a judgment. Accordingly and pursuant to Brand X, we held that we were obliged to discard Padilla–Caldera I and defer to the BIA's pronouncement in Briones. Padilla–Caldera v. Holder (Padilla–Caldera II ), 637 F.3d 1140, 1153 (10th Cir.2011).¹

What do all these twists and turns mean for Mr. De Niz Robles? Though he filed an administrative application for an adjustment of status after and in reliance on our decision in Padilla–Caldera I , his petition languished for years. It languished so long that it still stood waiting for a decision four years later, after the BIA handed down Briones and this court decided Padilla–Caldera II . And when the BIA finally did take up Mr. De Niz Robles's petition in 2013, it decided to apply its decision in Briones retroactively to his case, using it to hold him categorically ineligible for an adjustment of status and subject to removal.

It is this ruling Mr. De Niz Robles now asks us to overturn. In his view, Chevron step two and Brand X may mean that the BIA can apply Briones prospectively to administrative petitions filed after the date of that decision. But nothing in those decisions permits the agency to apply Briones retroactively to petitions filed before its date of decision. Indeed, Mr. De Niz Robles suggests that settled principles of due process and equal protection and the precedents that embody them preclude agencies from retroactively enforcing the new policies they announce under the authority granted to them by Chevron step two and Brand X. All of which means that, for petitions like his, filed in reliance on Padilla–Caldera I and before Briones, the BIA may not automatically deny adjustment of status but must instead afford the discretionary administrative review Padilla–Caldera I promised. Both sides agree Mr. De Niz Robles's appeal—his challenge to the BIA's authority to enforce Briones retroactively—raises a pure question of law we may assess de novo. See, e.g., Barrera–Quintero v. Holder, 699 F.3d 1239, 1243 (10th Cir.2012).

Having said that, the BIA denies there's anything retroactive about its decision in this case and suggests we might simply dismiss this appeal on that basis alone. But this case is hardly so simple. A statute, order, or edict “operates retroactively” when it seeks to impose “new legal consequences to events completed before its” announcement. INS v. St. Cyr, 533 U.S. 289, 321, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). And there's no question the BIA order before us seeks to do just that. When he filed his administrative petition in 2007, Mr. De Niz Robles possessed two lawful options for trying to win permanent residency: he was free to seek an adjustment of status pursuant to Padilla–Caldera I or he could accept a ten-year waiting period outside the country. Relying on circuit precedent, he chose the former option. The BIA order now before us purports to treat that option as if it never existed. In this way, it surely attaches new consequences to past conduct Mr. De Niz Robles cannot now alter. After all, had he been armed in 2007 with the knowledge that leaving the country was his only path to lawful residency he could've departed then and today stand just two years away from eligibility. But that opportunity is long forgone and cannot be recaptured now: for Mr. De Niz Robles the BIA's decision means it's eight years lost and ten still to wait. The real question in this case, then, isn't whether the BIA's decision seeks to impose new legal consequences on Mr. De Niz Robles's past conduct, but whether lawfully it may. See Garfias–Rodriguez v. Holder, 702 F.3d 504, 515–16 (9th Cir.2012) (en banc); Acosta–Olivarria v. Lynch, 799 F.3d 1271, 1274–75 (9th Cir.2015).²

When it comes to retroactivity and the law we can say a couple things with certainty. First and foremost, we know that legislation is rarely afforded retroactive effect. “It is a principle which has always been held sacred in the United States, that laws by which human action is to be regulated, look forwards, not backwards; and are never to be construed retrospectively unless the language of the act shall render such construction indispensable.” Reynolds v. McArthur, 27 U.S. (2 Pet.) 417, 434, 7 L.Ed. 470 (1829) (Marshall, C.J.); see also Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (“[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence.”). After all, legislation is powerful medicine: it usually announces a rule of general applicability and regulates otherwise private conduct. By design it's meant to alter existing expectations and further policy and political ends, for legislators explicitly serve as policymakers and partisans. Recognizing this, and in service of the due process interests of “fair notice, reasonable reliance, and settled expectations,” the law applies a presumption that new legislation governs only prospectively. Id. at 270, 114 S.Ct. 1483. This presumption serves an important equal protection interest too, preventing the state from singling out disfavored individuals or groups and condemning them for past conduct they are now powerless to change.See id. at 266, 114 S.Ct. 1483 ; Adrian Vermeule, Essay, Veil of Ignorance Rules in Constitutional Law, 111 Yale L.J. 399, 408 (2001).

For all these reasons and no doubt more besides, the presumption that legislation...