Szonyi v. Barr

Decision Date13 February 2019
Docket NumberNo. 15-73514,15-73514
Citation942 F.3d 874 (Mem)
Parties Istvan SZONYI, Petitioner, v. William P. BARR, Acting Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit
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 agency’s reasonable construction of ambiguous language in a statute that the agency is charged with administering. Id . at 842–43, 104 S.Ct. 2778. Where, as here, the ambiguous provision at issue imposes an express legislative constraint on the agency’s authority, 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. It is troubling enough that Chevron "concentrate[s] federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design," Gutierrez-Brizuela v. Lynch , 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring), but "when deference is applied to ... an agency’s interpretation of the statutory provisions that concern the scope of its own authority , it is more troubling still," Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 2120, 201 L.Ed.2d 433 (2018) (Kennedy, J., concurring) (emphasis added). Given these separation-of-powers concerns, it is critical that courts rigorously 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. 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, rather than an interpretation of it. In doing so, the panel improperly disregarded controlling precedent and applied an excess of deference that "suggests an abdication of the Judiciary’s proper role in interpreting federal statutes." Id . We should have taken this case en banc.

In the provision at issue here, Congress expressly limited the Government’s power to deport aliens based on their commission of "two or more crimes involving moral turpitude" by specifying that the Government may not count to two simply by carving up a "single scheme of criminal misconduct" into multiple separate charges. See 8 U.S.C. § 1227(a)(2)(A)(ii). Because the Immigration and Nationality Act ("INA") is administered by the Attorney General and the Board of Immigration Appeals ("BIA"), the Supreme Court has held that "the BIA should be accorded Chevron deference as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication." Negusie v. Holder , 555 U.S. 511, 517, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (citations and internal quotation marks omitted). Unsurprisingly, when asked to construe this statutory limit on the agency’s own power, the BIA adopted an exceptionally narrow view of what constitutes a "single scheme of criminal misconduct," thereby allowing it more easily to divide up a single criminal episode into multiple crimes and expanding its power to order deportation. Under the BIA’s construction, the "single scheme" exception applies only when two crimes follow so closely together that the offender essentially had no opportunity to cease his activities and reflect on what he had done. For sixty years, however, this court has consistently refused to follow that construction because we correctly recognized that it rewrites the statute "as if it read ‘single criminal act " rather than " ‘single scheme of criminal misconduct.’ " Wood v. Hoy , 266 F.2d 825, 830 (9th Cir. 1959) (emphasis added). Having rejected the BIA’s position as legally impermissible, we proceeded to apply our own construction, under which two or more crimes will constitute a "single scheme" if they "were planned at the same time and executed in accordance with that plan." Gonzalez-Sandoval v. INS , 910 F.2d 614, 616 (9th Cir. 1990) (emphasis added).

But after the Supreme Court held that "[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute," Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs. , 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005), the BIA decided that it was time for us to fall in line, and it started refusing to follow Wood even in cases arising in this circuit. Unfortunately, the panel in this case has now surrendered to the BIA’s flawed construction, and in doing so, it has squarely contravened Wood ’s holding that the BIA’s interpretation rests on a legally impermissible rewriting of the text.

Although I think that the panel thus erred in failing to follow Wood ’s rejection of the BIA’s interpretation, I cannot fault the panel for concluding that the BIA is not required to adopt the alternative construction of "single scheme" that this court enunciated in Wood and its progeny. Wood itself correctly recognized that the key phrase at issue here—"arising out of a single scheme of criminal misconduct"—is ambiguous, and under the Supreme Court’s binding decision in Brand X , that means "the agency remains the authoritative interpreter (within the limits of reason)" of this provision. 545 U.S. at 983, 125 S.Ct. 2688. Accordingly, Brand X and Chevron require us to allow the agency, on remand, to propose an alternative reading of the statutory text that is reasonable. And I especially cannot fault the panel on this score when I agree with the BIA that this court’s alternative construction is itself wrong. Under Wood ’s reading of "single scheme," we have wrongly ignored the objective connections that are inherent in the concept of a "scheme," and we instead have given dispositive weight to whether multiple crimes were planned together. As the BIA has noted, this flawed subjective approach has the perverse consequence of favoring more culpable criminals who pre-plan a crime spree over those who commit the very same crimes without such forethought.

A remand to the agency is particularly appropriate here, because this is not a case in which the petitioner would lose under any conceivable reading of "single scheme," thereby rendering pointless any such remand. The multiple crimes that render Petitioner Istvan Szonyi eligible for deportation were horrific—on an October night in 1981, he held three young women at gunpoint in a room for six hours while subjecting them to disgusting sexual abuse. Because these multiple crimes against multiple victims all occurred during a single episode in a single room, it is possible to posit reasonable competing interpretations of the phrase "single scheme of criminal misconduct," some of which would cover Szonyi’s conduct and some of which would not. But in resolving that question, the agency needs to do what it has failed to do for many years—namely, to articulate a reasonable construction that is faithful to the meaning of the phrase "single scheme ," rather than continue to apply a test that disregards that phrase and instead rewrites the provision as if it read "single act ."

Because the panel’s decision allows the agency to continue to enforce an unreasonable reading of the statute that disregards our precedent and that eliminates a congressional constraint on the agency’s power, I respectfully dissent from our failure to rehear this case en banc.

I

The statutory construction issue presented in this case arises against the backdrop of a long history of judicial interpretation of the relevant provision and its predecessor.

A

For more than 100 years, the immigration laws of this country have provided for the deportation of specified persons...

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