Nastase v. Barr, No. 18-60264 (5th Cir. July 1, 2020) (Elrod, Willett, Oldham)

Nastase’s parents brought him to the U.S. as a refugee from Romania when he was a child. In this case, he challenged two BIA decisions—one denying his application for an adjustment of immigration status to that of a lawful permanent resident or “LPR” and another denying his application for a waiver of inadmissibility.

Nastase’s first petition hinged on whether his refugee status included lawful permanent resident status for purposes of the so-called derivative-citizenship statute, 8 U.S.C. § 1431(a), which makes a foreign-born child a citizen if three requirements are met:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

Id. (emph. added). I emphasize the third condition because it was the only subject to dispute in Nastase’s case.

Before tackling the statutory dispute, though, the Fifth Circuit addressed the perennial question: does-Chevron-apply-here? The Court explained that the Fifth Circuit has not decided whether the BIA gets Chevron deference when interpreting the derivative-citizenship statute, but it has held that Chevron never applies to non-precedential BIA decisions like the one in Nastase’s case. See, e.g., Dhuka v. Holder, 716 F.3d 149, 154-56 (5th Cir. 2013). Accordingly, the Court explained, the BIA’s interpretation of § 1431(a) was entitled to “whatever weight is appropriate based on ‘the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.’” (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) and citing Dhuka, 716 F.3d at 156).

In any case, the Fifth Circuit rejected Nastase’s argument that his refugee status included LPR status because no precedent supported it and because it was foreclosed by the plain text of the statute. As a result, the Court emphasized, it would have reached the same conclusion regardless of whether Chevron applied.

Nastase’s second petition challenged BIA’s denial of his waiver of inadmissibility. The Court denied this petition in part and dismissed in part for lack of jurisdiction. Nastase raised two or three objections to the BIA’s denial of his waiver application, depending on how you read his arguments:

1. That the BIA erred by applying a heightened standard of review to his objection to the denial of his waiver application;

2. That the BIA erred by improperly balancing the equitable factors relevant under the applicable standard; and

3. That the BIA erred by failing to consider certain facts in his favor when assessing his motion for reconsideration.

Regarding the first argument, the Court held that the BIA had not applied an improper ‘heightened” standard of review to his waiver application. As for the second argument, the Court held that it lacked jurisdiction to review the claim because it called into question the Attorney General’s exercise of discretion. See 8 U.S.C. § 1252(a)(2)(B)(ii). As a result, to the extent Nastase’s petition raised such an objection, the Court dismissed it for lack of jurisdiction. The same was true of the Nastase’s third argument. Because the statute “permits the Attorney General to provide a waiver ‘for humanitarian purposes,’ but does not require it,” any failure by the IJ to consider the factors Nastase’s petition identified fell “squarely within the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B).” (quoting Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014)).

The Supreme Court recently reversed two Fifth Circuit decisions holding that this same jurisdictional bar deprived courts of jurisdiction to review petitions challenging the application of a legal standard to undisputed facts. See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020) (overruling Guerrero-Lasprilla v. Sessions, 737 Fed.App’x 230, 231 (5th Cir. 2018) (per curiam) and Ovalles v. Sessions, 741 Fed.App’x 259, 261 (5th Cir. 2018) (per curiam). The Fifth Circuit acknowledged Guerrero-Lasprilla and explained why it didn’t apply to the jurisdictional issues discussed in Nastase’s case:

Nastase v. Barr, No. 18-60264 (5th Cir. July 1, 2020)
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