Just before I began clerking for Judge Elrod on the Fifth Circuit, I interviewed to clerk for then-Chief Judge David B. Sentelle of the D.C. Circuit when I finished at the Fifth Circuit. Administrative law was my favorite subject in law school (and remains far and away my favorite area of law to this day), so I was thrilled when Judge Sentelle offered me the spot.
Like everyone else, I was familiar with the D.C. Circuit's reputation as the nation's real adlaw court. E.g. Hon. Harry T. Edwards & Michael A. Livermore, Pitfalls of Empirical Studies That Attempt to Understand the Factors Affecting Appellate Decisionmaking, 58 Duke L.J. 1895, 1954 (2009)("[I]t is well understood that this large category of cases includes some of the most difficult and controversial appeals heard by the D.C. Circuit."). Thus, I naturally assumed that the adlaw cases I worked on for Judge Elrod would be a cinch compared to the ones I would encounter at the D.C. Circuit.
I was wrong. Truth is, the immigration cases I handled while clerking for Judge Elrod were among the most difficult legal projects I have ever worked on and were certainly more difficult than the average adlaw case that came across my desk as a D.C. Circuit clerk. Why? Several reasons:
- The average lawyer handling an immigration appeal in the CA5 cannot compare to the average lawyer handling an adlaw appeal in the D.C. Circuit. As a result, law clerks in the Fifth Circuit often end up having to work a lot harder to figure out the answers to the various questions presented in an immigration appeal. In the D.C. Circuit, by comparison, law clerks get a huge head start in the form briefing that has very often been crafted by some of the greatest appellate advocates on the planet.
- In addition to better briefing from the parties, the D.C. Circuit clerk also usually gets a healthy stack of amici curiae briefs to clarify the nuances that a Fifth Circuit clerk would have to track down on her own--assuming she has time, that is.
- Speaking of time, I had far more time to puzzle over those crystal clear briefs that I received as a D.C. Circuit clerk than I had for the impossibly confusing examples I saw in Fifth Circuit immigration cases. Everybody talks about how busy the D.C. Circuit is with its admin-heavy docket, but the Fifth Circuit not only handles far more adlaw cases, it also handles far more cases per judge per year overall. Yet Fifth Circuit judges get the same number of clerks each year as their D.C. Circuit counterparts. The result? Less time for each case in the Fifth Circuit.
- If, somehow, anything remained unclear to the D.C. Circuit clerk, she could rest assured that it would be cleared up at oral argument, which the D.C. Circuit hears in nearly all of its adlaw cases. What about our frazzled Fifth Circuit clerk, though? Is she afforded the same luxury? Not likely. The Fifth Circuit is less likely to hear oral argument than the D.C. Circuit, and it very often skips oral argument in immigration cases.
And that's just a sampling. One day I'll spell all of this out in a full-length takedown of "D.C. Circuit Exceptionalism"--my term for the uncritically accepted view that the D.C. Circuit handles the really tough cases and the other federal appellate courts have it easy. For now, though, I'll leave it alone. Let's look at a few of the Fifth Circuit immigration cases that I'm talking about.
Cantarero-Lagos v. Barr, No. 18-60115 (5th Cir. May 6, 2019)
In Cantarero-Lagos v. Barr, No. 18-60115 (5th Cir. May 6, 2019), the Court affirmed the BIA's denial of Cantarero-Lagos's application for asylum and withholding of removal. Judge Jones wrote the majority opinion, which Judge Davis joined. Judge Dennis concurred and wrote separately.
This case is important because the BIA's published (and therefore precedential) opinion denying Cantarero-Lagos's asylum application announced new rules that make the already-arduous process of obtaining asylum significantly more difficult for applicants. First, some background on asylum law from the majority opinion:
Wendy Yeseenia Cantarero-Lagos sought asylum based on her membership in the PSG “single Honduran women age 14 to 30 who are victims of sexual abuse within the family and who cannot turn to the government.” Though the IJ found her testimony credible, he denied her application because, in his view, her PSG was not cognizable and lacked any nexus to her cited harms. On appeal before the BIA, Cantarero-Lagos conceded that the PSG she had presented to the IJ was inadequate, but she argued that the evidence in the record supported her application under a reformulated PSG, namely "Honduran women and girls who cannot sever family ties." The government did not object to the reformulated PSG, but the BIA requested supplemental briefing on whether it could consider a reformulated PSG that differed substantially from the any that was urged before the IJ.
The majority opinion describes the BIA's decision as follows:
Cantarero-Lagos petitioned for review, arguing that the BIA erred by (1) refusing to consider the reformulated PSG, (2) applying an excessively strict standard by requiring an "exact delineation" of the PSG before the IJ, and (3) applying its newly announced legal rules retroactively to her case.
So just how important were these questions? Well, I'm not an immigration expert, but two things tell me that this case must have been pretty important. First, a group of retired IJs and former members of the BIA filed an amicus brief in support of Cantarero-Lagos's petition for review. That's got to be an unusual occurrence. And second, the Court granted oral argument and issued a published opinion--steps it doesn't take in the vast majority of immigration cases.
Let's start with the standard of review:
The Court's decision to eschew Chevron because the government had not pointed to any ambiguous provision of the Act that the BIA interpreted in its opinion is interesting. Courts have certainly deferred to the BIA's interpretations of various provisions of the Act, including those dealing with asylum applications based on PSGs. E.g. Lopez-Monroy v. DHS, 751 Fed. App'x 303, 306 (3d Cir. 2018) (noting that the Court had deferred to the BIA's opinions in PSG-based asylum cases in the past).
As for the Court's refusal to apply Auer because the agency merely applied but did not interpret its regulations, the obvious question is how can an agency know that a regulation applies in the first place without interpreting it? See, e.g., Nat'l R.R. Passenger Corp. v. Bos. & Me. Corp., 503 U.S. 407, 420 (1992) (holding that agency’s implicit interpretation of the term “required” was entitled to deference); Sherley v. Sebelius, 644 F.3d 388, 396 (D.C. Cir. 2011) (holding that the agency’s implicit interpretation of the term “reason” warranted Chevron deference).
Anyway, without knowing the basis for the government's request for deference (the briefs are sealed on Pacer), it is hard to know exactly what's going on here. Maybe the Court is heeding Justice Kennedy's warning from Pereira v. Sessions:
Addressing the merits, the Court found each of Cantarero-Lagos's arguments unavailing. With respect to the BIA's refusal to consider a reformulated PSG, the Court agreed with the BIA that (1) it was not required to make the factual findings necessary to assess the reformulated PSG in the first instance, (2) the factual record was insufficient to have enabled the BIA to evaluate the reformulated PSG on appeal, and (3) the reformulated PSG was "substantially different" from the original PSG presented to the IJ.
As for the "exact delineation" requirement, the Court characterized Cantarero-Lagos's concerns--as well as those of her IJ and BIA amici--as "overblown." The Act, it explained, places the burden on asylum applicants to demonstrate eligibility for asylum and withholding of removal. The "exact delineation" requirement was, in the majority's words, "simply a logical extension of this burden of proof."
The Court also rejected Cantarero-Lagos's retroactivity argument. Citing McDonald v. Watt, 653 F.2d 1035, 1042 (5th Cir. 1981), the majority explained that the Fifth Circuit applies the Chenery balancing test to decide whether a new adjudicative rule should be applied retroactively. According to the Court, that test weighs the
Cantarero-Lagos pointed to the BIA's longstanding practice of considering reformulated PSGs on appeal and even sometimes reformulating PSGs on its own initiative and argued that like the agency in McDonald, the BIA's new rules marked an "abrupt departure from a well-established practice of the agency." The majority was unmoved:
The fact that the BIA has considered reformulated PSGs on appeal and even reformulated them itself in past adjudications "does not change this result," because "[t]here is a vast difference between recognizing a discretionary practice of the BIA and claiming it as an entitlement."
Judge Dennis concurred. He agreed with the majority's conclusion that the BIA does not err when it chooses not to consider whether a person is entitled to asylum protection based on asserted membership in a PSG that is articulated for the first time on appeal, but he wrote separately "to express disagreement with the "exacting and unnecessary" "exact delineation" requirement. His concurrence is brief, so I'll quote it here in full:
Mauricio-Benitez v. Sessions, 908 F.3d 144 (5th Cir. 2018)
My wife, Erin, and I had our first baby--a little girl named Saoirse--on December 24, 2018. As a result, my November 2018 was all birthing classes and prepping hospital bags, and I missed the Fifth Circuit's decision in Mauricio-Benitez v. Sessions, a published decision written by Judge Elrod and joined by Judges Higginbotham and Duncan that held that because Muricio-Benitez failed to provide the immigration court with his correct mailing address and failed to rebut the "weak presumption" of delivery of his notice of hearing, the BIA did not reversibly err in denying his motion to reopen his removal proceedings.
This case arose in the wake of Pereira v. Sessions, 138 S. Ct. 2105 (2018)--the Supreme Court's 8-1 decision holding that a putative “notice to appear” that fails to designate the specific time or place of a noncitizen's removal proceedings is not a “notice to appear under section 1229(a)” of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and so does not trigger the Act's stop-time rule ending the noncitizen's period of continuous presence in the United States. Mauricio-Benitez entered the country illegally, and DHS served him personally with a notice to appear (NTA) that charging him with being removable under 8 U.S.C. § 1182(a)(6)(A)(i). The NTA ordered Mauricio-Benitez to appear at a removal hearing before an immigration judge (IJ) at a date and time to be set and noted the following: “If you fail to attend the hearing . . . a removal order may be made by the [IJ] in your absence[.]”
The NTA also stated that he was required to provide the DHS with his address in writing and warned him to “notify the Immigration Court immediately” if he changed his address because “[n]otices of hearing [would] be mailed to this address.” In addition, it notified Mauricio-Benitez that if he did not provide an address at which he could be reached during his removal proceedings, he would not be entitled to receive written notice of his hearing. According to Mauricio-Benitez, he gave DHS the correct address, but an immigration officer misspelled it on the NTA. Predictably, DHS proceeded to mail his notice of hearing to the wrong address; Mauricio-Benitez didn't appear at the hearing; and the IJ entered an in absentia removal order against him.
Thirteen years later, Mauricio-Benitez moved to reopen, arguing that he never received the notice of hearing. The IJ denied his motion. The BIA dismissed his subsequent appeal on two alternative grounds: (1) Mauricio-Benitez had not provided sufficient evidence to rebut the presumption of delivery of the NOH; and (2) MauricioBenitez was “not entitled to actual notice of his hearing” because he had failed to correct the mistake in the address on the NTA with the immigration court. Mauricio-Benitez filed a petition for review with the Fifth Circuit, arguing that (1) the BIA erred in finding that he was not entitled to actual notice of his removal hearing; and (2) the BIA’s conclusion regarding the presumption of delivery of his NOH was contrary to the decisions of the BIA and the Fifth Circuit.
Rejecting the first argument, the Fifth Circuit explained:
As we recognized in Mejia-Urbina and Osorio-Hernandez, an alien’s statutory obligation to keep the immigration court apprised of his current mailing address includes an obligation to correct any errors in that address listed on the NTA. Failure to receive notice of a removal hearing as a result of such an error is not grounds to reopen a removal proceeding or rescind an in absentia removal order.
The Court rejected Mauricio-Benitez's second argument, too, explaining that "[e]ven if Mauricio-Benitez had been entitled to actual notice of his removal hearing, we agree with the BIA’s determination that he has not presented sufficient evidence to rebut the presumption that the NOH was properly delivered."
Those are the Court's holdings, but if you ask me, they are not the most interesting part of the opinion. As so often happens, the juicy stuff is in an easy-to-overlook footnote. Footnote 1 of the Court's opinion contains this very important clarification:
The Supreme Court's recent decision in Pereira v. Sessions, ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), does not impact this conclusion. As the Supreme Court emphasized, “[t]he narrow question in [that] case” was whether a NTA that does not specify the time or place of the removal hearing triggers the “stop-time rule” for purposes of a cancellation of removal. Id. at 2109–10; see also id. at 2113 (“[T]he dispositive question in this case is much narrower[.]”). But cancellation and reopening are two entirely different proceedings under immigration law with different standards of review. Compare Tula-Rubio v. Lynch, 787 F.3d 288, 290–91 (5th Cir.2015), with Hernandez-Castillo, 875 F.3d at 203–04.
Cancellation is a form of discretionary relief that an immigration court may award to aliens “who are subject to removal proceedings and have accrued 10 years of continuous physical presence in the United States[.]” Id. at 2109. An alien's period of continuous physical presence for purposes of cancellation ends when the alien is served a NTA that fully complies with the statutory requirements. Id. The filing of the NTA, in turn, initiates removal proceedings against the alien, during which the alien may request cancellation. See 8 C.F.R. § 1003.14(a); id. § 1003.13; 8 U.S.C. § 1229b(b). In contrast, it is only after these proceedings have concluded—which in some cases may be by the IJ's issuance of an in absentia removal order—that an alien may file a motion to reopen the proceedings on one of the statutory grounds. See 8 U.S.C. § 1229a(b)(5)(A); id. § 1229a(b)(5)(C); id. § 1229a(c)(7).
Because the issues in this case pertain only to reopening, Pereira's rule regarding cancellation is inapplicable. See, e.g., Ramat v. Nielsen, 317 F.Supp.3d 1111, 1116–17 (S.D. Cal. 2018) (declining to read Pereira as applying more broadly than in stop-time rule cancellation cases); United States v. Ibarra-Rodriguez, No. CR-18-190-M, 2018 WL 4608503, at *3 (W.D. Okla. Sept. 25, 2018) (finding Pereira distinguishable because “the ‘stop-time rule’ [was] not at issue” in the case).
Those three paragraphs undoubtedly disappointed immigration advocates who, ever since the Supreme Court decided Pereira, have been tripping over themselves to extend its holding from cancellation proceedings to the reopening context. For an argument that the cancellation/removal distinction should not bar a broader reading of Pereira, see this article by Lonny Hoffman.
Ramos-Portillo v. Barr, No. 17-60254 (5th Cir. May 14 2019)
Ramos-Portillo v. Barr, another opinion written by Judge Elrod (this time joined by Judges Jolly and Willett), presents a similar question to the one just discussed in Mauricio-Benitez v. Sessions, only the in absentia removal proceedings at issue in Ramos-Portillo occurred in 1993. As a result, the Court in this case appleis the virtually identical notice provisions of 8 U.S.C. § 1252--the predecessor to the IIRIRA--to affirm the BIA's order dismissing Ramos-Portillo's appeal of an IJ's order denying his motion to reopen.
Like Mauricio-Benitez, Ramos-Portillo argued that his failure to appear at his deportation hearing should be excused because he didn't receive adequate notice under the statute. Ramos-Portillo had provided immigration officials with his El Salvador address. Immigration officials provided him a written notice that he needed to provide the immigration court with a U.S. address and gave him a change of address form to do so. Ramos-Portillo never followed up, failed to appear, and, as a result, the IJ entered an in absentia deportation order against him.
For similar reasons to those discussed above with respect in Mauricio-Benitez's case, the Fifth Circuit held that Ramos-Portillo's failure to update his address with the immigration court foreclosed his inadequate-notice argument. And, once again, Judge Elrod dropped a Pereira footnote:
As we observed in Mauricio-Benitez, 908 F.3d at 148 n.1, the Supreme Court’s decision in Pereira v. Sessions, ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), has no bearing on this appeal, because Pereira concerned the stop-time rule for cancellation of removal and this appeal concerns reopening. “[C]ancellation and reopening are two entirely different proceedings under immigration law with different standards of review.” Id. Moreover, Pereira’s main thrust was that “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under [the statute].’ ” 138 S.Ct. at 2113–14. This appeal does not concern whether Ramos-Portillo’s OSC constituted an OSC under the statute but rather whether Ramos-Portillo satisfied his duty to provide an address such that the immigration court was obligated to send another OSC.
As usual, there's more going on in these opinions than I can adequately capture in a summary. Those who take their immigration-law very seriously, in particular, should read them all carefully for themselves.