Andre Martello Barton v. U.S. Attorney General , 904 F.3d 1294 ( 2018 )

Case: 17-13055 Date Filed: 09/25/2018 Page: 1 of 18
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13055
________________________
Agency No. A029-021-783
ANDRE MARTELLO BARTON,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 25, 2018)
Before WILSON and NEWSOM, Circuit Judges, and VINSON, * District Judge.
NEWSOM, Circuit Judge:
*
Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida,
sitting by designation.
Case: 17-13055 Date Filed: 09/25/2018 Page: 2 of 18
The federal immigration laws give the Attorney General the discretion to
cancel the removal of an otherwise removable lawful permanent resident who
(among other conditions) “has resided in the United States continuously for 7 years
after having been admitted in any status.” 8 U.S.C. § 1229b(a)(2). Importantly for
present purposes, though, the continuous-residence requirement is subject to the
so-called “stop-time rule.” The provision that embodies that rule—at issue here—
states that any period of continuous residence terminates when the alien
“commit[s] an offense referred to in section 1182(a)(2) of this title that renders the
alien inadmissible to the United States under section 1182(a)(2) of this title or
removable from the United States under section 1227(a)(2) or 1227(a)(4) of this
title, whichever is earliest.” Id. § 1229b(d)(1) (emphasis added).
The question before us is whether a lawful-permanent-resident alien who has
already been admitted to the United States—and who isn’t currently seeking
admission or readmission—can, for stop-time purposes, be “render[ed] …
inadmissible” by virtue of a qualifying criminal conviction. Other circuits have
divided over the answer. For slightly different reasons, the Second and Fifth
Circuits have both held that a lawful permanent resident needn’t apply for
admission to be “render[ed] … inadmissible” under the stop-time rule (as has the
Third Circuit, albeit in an unpublished opinion). See Heredia v. Sessions, 865 F.3d
60, 67 (2d Cir. 2017); Calix v. Lynch, 784 F.3d 1000, 1008–09 (5th Cir. 2015);
2
Case: 17-13055 Date Filed: 09/25/2018 Page: 3 of 18
Ardon v. Att’y Gen. of U.S., 449 Fed. App’x 116, 118 (3d Cir. 2011). More
recently, the Ninth Circuit disagreed, concluding that “a lawful permanent resident
cannot be ‘rendered inadmissible’ unless he is seeking admission.” Nguyen v.
Sessions, __ F.3d ___, 2018 WL 4016761, at *5 (9th Cir. Aug. 23, 2018).
For the reasons that follow, we agree with the Second, Third, and Fifth
Circuits, and disagree with the Ninth.
I
A
Andre Martello Barton is a native and citizen of Jamaica. Barton was
initially admitted to the United States on May 27, 1989 as a B-2 visitor for
pleasure; approximately three years later, he successfully adjusted his status to
lawful permanent resident. Since his admission, Barton has run afoul of the law on
several occasions. Initially, on January 23, 1996—for reasons that will become
clear, the dates matter—Barton was arrested and charged with three counts of
aggravated assault and one count each of first-degree criminal damage to property
and possession of a firearm during the commission of a felony. He was convicted
of all three offenses in July 1996. Then, a little more than a decade later—first in
2007 and then again in 2008―Barton was charged with and convicted of violating
the Georgia Controlled Substances Act. (For present purposes, only Barton’s 1996
crimes are relevant to determining whether he is eligible for cancellation of
3
Case: 17-13055 Date Filed: 09/25/2018 Page: 4 of 18
removal. Barton’s 2007 and 2008 offenses occurred more than seven years after
his admission to the United States—which, as we will explain, is the pertinent
timeframe for establishing continuous residence under the cancellation statute.)
The Department of Homeland Security subsequently served Barton with a
notice to appear, charging him as removable on several grounds: (1) under
8 U.S.C. § 1227(a)(2)(A)(iii), for being convicted of an aggravated felony related
to drug trafficking; (2) under 8 U.S.C. § 1227(a)(2)(B)(i), for violating controlled-
substance laws; (3) under 8 U.S.C. § 1227(a)(2)(C), for being convicted of illegally
possessing a firearm; and (4) under 8 U.S.C. §1227(a)(2)(A)(ii), for being
convicted of two crimes involving moral turpitude not arising out of a single
scheme. Barton admitted the factual allegations in the notice and conceded
removability based on the controlled-substance and gun-possession offenses, but
denied that he had been convicted of a trafficking-related aggravated felony or of
two crimes involving moral turpitude not arising out of a single scheme. Barton
also indicated that he intended to seek cancellation of removal as a lawful
permanent resident. The immigration judge sustained the two conceded charges of
removability, and the government later withdrew the other two charges.
B
As promised, Barton subsequently filed an application for cancellation of
removal under 8 U.S.C. § 1229b(a), which, as already explained, allows the
4
Case: 17-13055 Date Filed: 09/25/2018 Page: 5 of 18
Attorney General to cancel the removal of an otherwise removable lawful-
permanent-resident alien if―in addition to other requirements not relevant
here―the alien “has resided in the United States continuously for 7 years after
having been admitted in any status.” 8 U.S.C. § 1229b(a)(2). Importantly,
though—as also explained—the continuous-residence requirement is subject to the
“stop-time rule,” which terminates the accrual of continuous residence when the
alien commits a crime that (1) is listed in 8 U.S.C. § 1182(a)(2) and (2) that renders
the alien either “inadmissible” under § 1182(a)(2) or “removable” under 8 U.S.C. §
1227(a)(2) or (a)(4). Id. § 1229b(d)(1)(B).
In his cancellation application, Barton acknowledged his prior criminal
convictions and included as exhibits records that, as relevant here, showed that he
had committed the crimes that resulted in his convictions for aggravated assault,
criminal damage to property, and unlawful gun possession on January 23, 1996.
The government moved to pretermit Barton’s application, arguing that Barton
hadn’t accrued the required seven years of continuous residence after his May 27,
1989 admission because, under the stop-time rule, his continuous-residence period
ended on January 23, 1996.
In response, Barton contended that his 1996 crimes didn’t trigger the stop-
time rule. As to § 1229b(d)(1)’s “removable” prong, Barton said that his 1996
offenses didn’t qualify because they arose from a single scheme of misconduct
5
Case: 17-13055 Date Filed: 09/25/2018 Page: 6 of 18
constituting one crime involving moral turpitude committed outside his first five
years in the United States, whereas the cross-referenced § 1227(a)(2) establishes
removability, as relevant here, only for (i) a single crime involving moral turpitude
committed within five years of an alien’s admission or (ii) multiple crimes
involving moral turpitude not arising out of a single scheme. The government
didn’t press—and has since abandoned—the argument that Barton’s 1996 crimes
rendered him “removable” for stop-time purposes. Instead, it insisted that Barton’s
1996 offenses―even if considered as a single crime involving moral turpitude
occurring outside the five-year timeframe―rendered Barton “inadmissible” under
§ 1182(a)(2), which unlike removability under § 1227(a)(2) isn’t limited by a
single-scheme requirement. Barton replied—thus teeing up the issue before us—
that as an already-admitted lawful permanent resident not seeking admission (or
readmission) to the United States, he could not as a matter of law be “render[ed] …
inadmissible” within the meaning of § 1229b(d).
The immigration judge ruled in the government’s favor, concluding that
Barton’s 1996 offenses “render[ed]” him “inadmissible” under § 1182(a)(2),
thereby triggering § 1229b(d)(1)’s stop-time rule, thereby prematurely ending his
period of continuous residence in the United States, thereby disqualifying him for
cancellation of removal.
6
Case: 17-13055 Date Filed: 09/25/2018 Page: 7 of 18
C
Barton sought review of the IJ’s order in the Board of Immigration Appeals,
reiterating his argument that a lawful-permanent-resident alien not seeking
admission to the United States can’t be “render[ed] inadmissible” under
§ 1182(a)(2) for stop-time purposes. In a non-precedential single-member
decision, the Board agreed with the IJ, concluding that Barton’s 1996 offenses
triggered the stop-time rule and thus forestalled his accrual of the requisite seven
years of continuous residence. Citing its earlier decision in Matter of Jurado-
Delgado, 24 I. & N. Dec. 29 (B.I.A. 2006), the Board (per the lone member) held
that Barton’s convictions barred him from seeking cancellation of removal
because—so far as we can tell from a very summary order—the phrase “renders
the alien inadmissible” in § 1229b(d)(1)’s stop-time rule requires only that the
applicant be “potentially” inadmissible, not that he be actively seeking admission.
Barton now petitions for review of the Board’s decision. He asserts, as he
has all along, that as a lawful permanent resident he “plainly cannot be
inadmissible as a result of any offense, as he is not seeking admission to the United
States.” Br. of Petitioner at 8.
II
Under the principle announced in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), “[a]s a general rule, an agency’s
7
Case: 17-13055 Date Filed: 09/25/2018 Page: 8 of 18
interpretation of a statute which it administers is entitled to deference if the statute
is silent or ambiguous and the interpretation is based on a reasonable construction
of the statute.” Fajardo v. U.S. Att’y Gen., 659 F.3d 1303, 1307 (11th Cir. 2011).
And to be clear, the Supreme Court has held that Chevron deference applies with
full force when the Board of Immigration Appeals interprets ambiguous statutory
terms in the course of ordinary case-by-case adjudication. See INS v. Aguirre-
Aguirre, 526 U.S. 415, 424–25 (1999). But so do Chevron’s limitations.
Accordingly, here as elsewhere, if we determine―employing “traditional tools of
statutory construction”―that “Congress has spoken clearly, we do not defer to
[the] agency’s interpretation of the statute,” because “we must give effect to the
unambiguously expressed intent of Congress.” Fajardo, 659 F.3d at 1307 (quoting
Chevron, 467 U.S. at 842–44).
The threshold question before us, therefore—at Chevron step one, so to
speak—is whether the usual rules of statutory interpretation provide a clear answer
to the following question: Can a lawful-permanent-resident alien who is not
presently seeking admission to the United States nonetheless be “render[ed] …
inadmissible” within the meaning of 8 U.S.C. § 1229b(d)(1)? Although it is
undoubtedly true that “the concept of inadmissibility is generally married to
situations in which an alien is actually seeking admission to the United States,”
Calix v. Lynch, 784 F.3d 1000, 1004 (5th Cir. 2015), for the reasons that follow,
8
Case: 17-13055 Date Filed: 09/25/2018 Page: 9 of 18
we hold that an already-admitted lawful permanent resident—who doesn’t need
and isn’t seeking admission—can be “render[ed] … inadmissible” for stop-time
purposes.
A
Any application of the “traditional tools of statutory construction,” of
course, must begin “with the statutory text, and proceed from the understanding
that unless otherwise defined, statutory terms are generally interpreted in
accordance with their ordinary meaning.” Sebelius v. Cloer, 569 U.S. 369, 376
(2013) (internal quotation marks omitted). At issue here (again) is the stop-time
rule, which (again) terminates the seven years of continuous residence that a lawful
permanent resident must accrue in order to qualify for cancellation of removal. In
relevant part, the stop-time rule provides as follows:
[A]ny period of continuous residence … in the United States shall be
deemed to end … when the alien has committed an offense referred to
in section 1182(a)(2) of this title that renders the alien inadmissible to
the United States under section 1182(a)(2) of this title or removable
from the United States under section 1227(a)(2) or 1227(a)(4) of this
title, whichever is earliest.
8 U.S.C. § 1229b(d)(1).
Because the parties here agree that Barton is not ineligible for cancellation
of removal on account of having committed an offense that rendered him
“removable” under § 1227(a)(2) or § 1227(a)(4), the sole question before us is
whether his 1996 convictions rendered him “inadmissible” under § 1182(a)(2).
9
Case: 17-13055 Date Filed: 09/25/2018 Page: 10 of 18
Barton’s position is simply stated: He says that he “plainly cannot be inadmissible
as a result of any offense, as he is not seeking admission to the United States.” Br.
of Petitioner at 8 (emphasis added). Although Barton’s argument has a certain
intuitive appeal, we conclude that § 1229b(d)(1)’s plain language forecloses it.
We begin our textual analysis where Barton does—with the word
“inadmissible.” Standard English-language dictionaries all seem to define
“inadmissible” in pretty much the same way: “Not admissible; not proper to be
allowed or received.” Webster’s Second New International Dictionary 1254
(1944); see also, e.g., Webster’s Third New International Dictionary 1139 (2002)
(same); Oxford English Dictionary (3d ed. 2011) (“[n]ot admissible; not to be
admitted, entertained, or allowed”). Unsurprisingly, those same dictionaries
similarly define the root word “admissible”: “Capable of being or having the right
to be admitted to a place.” Oxford English; see also, e.g., Webster’s Second at 34
(“[e]ntitled or worthy to be admitted”); Webster’s Third at 28 (same). So, in short,
an alien like Barton is “inadmissible” if he isn’t “proper[ly]”—or doesn’t “hav[e]
the right to be”—present in the United States.
On, then, to the word “renders,” which precedes “inadmissible.” Barton
asserts that Congress’s use of that term—such that the alien must commit an
offense that “renders” him “inadmissible”—“requires certain factual circumstances
to be in existence to be operative,” and thus that it “makes most sense for Congress
10
Case: 17-13055 Date Filed: 09/25/2018 Page: 11 of 18
to have used ‘renders’ inadmissible to apply to those seeking admission ….” Br.
of Petitioner at 12–13. We disagree that the term “renders” necessitates (or even
properly suggests) so narrow a reading. Turning again to the dictionaries, we find
that they almost uniformly define “render” to mean “to cause to be or to become.”
E.g., Webster’s Second New International Dictionary 2109 (1944); Webster’s
Third New International Dictionary 1922 (2002) (same); Oxford English
Dictionary (3d ed. 2011) (same). Some, interestingly—and we think tellingly—go
on to explain that the word “render” can indicate the conferral of a particular
condition, or “state.” Webster’s Second at 2109; Webster’s Third at 1922.
A “state”-based understanding makes particularly good sense here, where
the word that follows “renders” is “inadmissible.” Cf. Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997) (emphasizing that a statutory term’s meaning should be
determined by reference to “the specific context in which [it] is used”). By their
very nature, “able” and “ible” words 1 connote a person’s or thing’s character,
quality, or status—which, importantly for present purposes, exists independent of
any particular facts on the ground, so to speak. Consider, for instance, the
following example, taken from one dictionary’s definition of the word “render”:
“Sewage effluent leaked into a well, grossly contaminating the water and rendering
1
For an explanation of the differences—why sometimes “able” and sometimes “ible”?—see
Catherine Soanes, Do you know your -ibles from your -ables?, Oxford Dictionaries:
OxfordWords (Oct. 23, 2013), https://blog.oxforddictionaries.com/2012/10/23/ibles-and-ables/
(last visited Sept. 15, 2018).
11
Case: 17-13055 Date Filed: 09/25/2018 Page: 12 of 18
it undrinkable for 24 hours.” Oxford English (emphasis added). The described
water isn’t properly drunk for a full day—whether or not anyone is actually trying
to drink it. It is, by its very nature, not drinkable. Here’s another, again from a
dictionary definition of “render”: “[T]he rains rendered his escape impossible.”
Oxford Dictionary of English 1503 (3d ed. 2010) (emphasis added). Because of
the rains, the unidentified captive’s escape couldn’t be made—whether or not he
was actually trying to make it. Similar illustrations abound: A terminal illness
renders its victim untreatable regardless of whether she is actively seeking
treatment; rot renders a piece of fish inedible regardless of whether someone is
trying to eat it; sheer weight renders a car immovable regardless of whether
someone is trying to move it. You get the point. So too here—an alien can be
rendered inadmissible regardless of whether he is actually seeking admission.
We simply cannot discern in § 1229b(d)(1)’s text any indication that in order
to be “render[ed] … inadmissible” within the meaning of the stop-time rule, an
alien must presently be seeking admission. Rather, an alien is “render[ed] …
inadmissible” when he is “cause[d] to be or to become” not “proper[ly]” or
“right[ly]” admitted. In other words, “inadmissib[ility]” is a status that an alien
assumes by virtue of his having been convicted of a qualifying offense under §
1182(a)(2). True, for an alien like Barton, who has already been admitted—and
isn’t currently seeking admission—that status might not immediately produce real-
12
Case: 17-13055 Date Filed: 09/25/2018 Page: 13 of 18
world admission-related consequences. But it isn’t categorically irrelevant to
admission either; rather, it may just be that the otherwise-latent status manifests
somewhere down the road. Barton is of course correct that, as a general rule, an
already-admitted lawful permanent resident needn’t seek readmission to the United
States. There are exceptions, however. For instance, a once-admitted alien may
need readmission if he “has abandoned or relinquished [lawful-permanent-
resident] status,” “has been absent from the United States for a continuous period
in excess of 180 days,” or “has engaged in illegal activity after having departed the
United States.” 8 U.S.C. § 1101(a)(13)(C). (Importantly, the term of
“inadmissib[ility]” imposed by § 1182(a)(2) has no sunset; once an alien is
“render[ed] … inadmissible” under the statute, he retains that status indefinitely.) 2
So as a matter of both linguistics and logic, at least for stop-time purposes, a
lawful permanent resident can—contrary to Barton’s contention—be “render[ed]
… inadmissible” even if he isn’t currently seeking (and for that matter may never
again seek) admission to the United States.
2
In Nguyen, the Ninth Circuit acknowledged that § 1101(a)(13)(C) specifies circumstances in
which a lawful permanent resident might have to seek readmission, but answered that none of
them applied in the case before it. __ F.3d ___, 2018 WL 4016761, at *3. With respect, we
think that misses the point—which isn’t whether the particular alien before the court himself
needs readmission right now, but rather whether a once-admitted alien might someday need
readmission, such that his “inadmissible” status would matter. Clearly he might, such that it
would.
13
Case: 17-13055 Date Filed: 09/25/2018 Page: 14 of 18
B
In resisting this plain-language interpretation, Barton relies principally on
the rule against surplusage―which cautions against needlessly reading a statute in
a way that renders (pun fully intended) certain language superfluous. See, e.g.,
Duncan v. Walker, 533 U.S. 167, 174 (2001). In particular, Barton asserts—
If an offense referred to in 8 U.S.C. § 1182(a)(2), to wit, a [crime
involving moral turpitude], categorically render[s] an alien
inadmissible and trigger[s] the stop-time rule, without respect to
whether that individual is actually seeking admission, then there
would be no need to consider whether, in the alternative, the offense
render[s] the alien removable under 8 U.S.C. § 1227(a)(2) or (a)(4).
Br. of Petitioner at 11.
Although we find Barton’s surplusage-based argument a little hard to follow,
he seems to be saying something like the following. At the outset, he correctly
recognizes that in order to trigger § 1229b(d)(1)’s stop-time rule, two conditions
must be met: first, the alien must have “committed an offense referred to in section
1182(a)(2)”; second, and separately, that offense must “render[] the alien” either
“inadmissible … under section 1182(a)(2)” or “removable … under section
1227(a)(2) or 1227(a)(4) ….” See Heredia v. Sessions, 865 F.3d 60, 66–67 (2d
Cir. 2017) (explaining the “stop-time rule as having two requirements”); Calix, 784
F.3d at 1006 (same). From that starting point, and presumably fastening on the
fact that both § 1229b(d)(1)’s prefatory “referred to” clause and the “inadmissible”
prong of the statute’s operative clause cross-reference § 1182(a)(2), Barton appears
14
Case: 17-13055 Date Filed: 09/25/2018 Page: 15 of 18
to contend that an alien’s commission of any § 1182(a)(2)-based crime that meets
the threshold “referred to” condition will also ipso facto “render[] the alien
inadmissible under section 1182(a)(2).” Thus, he says, there will never be a need
to proceed to determine whether a crime qualifies under the operative clause’s
separate § 1227(a)-based “removable” prong—hence, the argument goes, the
surplusage. Barton’s solution: Courts should read the stop-time rule “so that the
inadmissibility part applies to permanent residents seeking admission, and the
[removability] part applies to those permanent residents in the United States
already, not seeking admission ….” Br. of Petitioner at 11.
We reject Barton’s argument for two reasons. As an initial matter, the
Supreme Court has repeatedly explained that the usual “preference” for “avoiding
surplusage constructions is not absolute” and that “applying the rule against
surplusage is, absent other indications, inappropriate” when it would make an
otherwise unambiguous statute ambiguous. Lamie v. U.S. Trustee, 540 U.S. 526,
536 (2004) (citing Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001)).
Rather, faced with a choice between a plain-text reading that renders a word or
clause superfluous and an interpretation that gives every word independent
meaning but, in the doing, muddies up the statute—courts “should prefer the plain
meaning since that approach respects the words of Congress.” Id. Because, as we
have explained, the statutory language here is clear, it is unnecessary―and in the
15
Case: 17-13055 Date Filed: 09/25/2018 Page: 16 of 18
Supreme Court’s words, would be “inappropriate”―to apply the anti-surplusage
canon here.
Moreover, and in any event, Barton’s surplusage-based argument
misunderstands the stop-time rule’s operation. Contrary to Barton’s assumption,
answering “yes” to the first question—whether the alien has “committed an offense
referred to in section 1182(a)(2)”—does not necessarily require a “yes” to the
second question—whether that offense “renders the alien inadmissible … under
section 1182(a)(2).” The reason is that while the mere “commi[ssion]” of a
qualifying offense satisfies the prefatory clause, actually “render[ing] the alien
inadmissible” demands more. Under § 1182(a)(2), an alien “is inadmissible”—
here, as a result of a “crime involving moral turpitude”—only if he is “convicted
of, or … admits having committed, or … admits committing acts which constitute
the essential elements of” the listed offense. 8 U.S.C. § 1182(a)(2)(A)(i)(I). In
short, while only commission is required at step one, conviction (or admission) is
required at step two. See Calix, 784 F.3d at 1006 (“If an alien has committed an
offense listed [in § 1182(a)(2)], does inadmissibility automatically result? It does
not.”); see also Heredia, 865 F.3d at 66–67 (recognizing commission-conviction
distinction). 3
3
There is one clarification worth making here. Although it is an alien’s conviction of a
qualifying offense that “renders [him] inadmissible” for stop-time purposes, his period of
continuous residence is deemed to terminate on the date he initially committed that offense. So,
16
Case: 17-13055 Date Filed: 09/25/2018 Page: 17 of 18
So contrary to Barton’s contention, there is no surplusage. The statutory
language that he assails as superfluous is in fact the second of two independent
requirements, both of which are necessary to trigger the stop-time rule.4
III
For the foregoing reasons, we hold, per the stop-time provision’s plain
language, that a lawful-permanent-resident alien need not be seeking admission to
the United States in order to be “render[ed] … inadmissible.” Accordingly, the
Board correctly concluded that Barton is ineligible for cancellation of removal
because the stop-time rule―triggered when he committed a crime involving moral
turpitude in January 1996―ended his continuous residence a few months shy of
the required seven-year period.5
in effect, his conviction-based inadmissibility “relates back” (our term) to the date of the crime’s
commission. See, e.g., Heredia, 865 F.3d at 70–71 (“[W]hen a non-citizen is rendered
inadmissible—by a conviction, admission of the criminal conduct, or through some other
means—the stop-time rule may make him ineligible for cancellation of removal, if, as of the date
of his commission of the underlying offense, he had not yet resided in the United States
continuously for seven years. To state it another way: as long as a qualifying offense later does
render the non-citizen inadmissible under 8 U.S.C. § 1182(a)(2), the date of the commission of
the offense governs the computation of a lawful permanent resident’s continuous residency in the
United States.”).
4
Although the Ninth Circuit embraced a version of this surplusage-based argument in Nguyen,
see __ F.3d ___, 2018 WL 4016761, at *3, it failed to account for the fact that while commission
of a crime alone satisfies § 1229b(d)(1)’s prefatory clause, the operative “render[ing]” clause
requires more—either a conviction of or a formal admission to the underlying offense.
5
Because we conclude that the stop-time provision’s statutory language is unambiguous, we
needn’t definitively determine whether, as the government contends, the Board’s decision
here―which the parties agree is a non-precedential single-member order―is entitled to Chevron
deference. See Chevron, 467 U.S. at 842 (“If the intent of Congress is clear, that is the end of the
matter.”). We note, though, that in Quinchia v. U.S. Attorney General, this Court held that
17
Case: 17-13055 Date Filed: 09/25/2018 Page: 18 of 18
PETITION DENIED.
“Chevron deference is not appropriate[ly]” afforded to “a non-precedential decision issued by a
single member of the [Board] that does not rely on existing [Board] or federal court precedent.”
552 F.3d 1255, 1258 (11th Cir. 2008) (emphasis added). Quinchia further indicates that a single-
member Board decision should be deemed to have “rel[ied] on” existing precedent for Chevron
purposes only where it is actually dictated—or “compelled”—by an earlier decision. See id. at
1258 (citing Garcia–Quintero v. Gonzales, 455 F.3d 1006, 1011–14 (9th Cir. 2006), for the
proposition that “Chevron deference may apply where the non-precedential [Board] decision
relied on, and was ‘compelled by’ an earlier precedential decision”); cf. Silva v. United States
Att’y Gen., 448 F.3d 1229, 1243 (11th Cir. 2006) (holding that it is permissible under 8 C.F.R. §
1003.1(e)(4)(i)(A) for the Board to summarily affirm the decision of the immigration judge
without opinion when, among other conditions, the issues “are governed by existing precedent”).
It is true, as the government says, that the single-member opinion here cited
(parenthetically) the Board’s earlier decision in Matter of Jurado-Delgado for the proposition
that “the phrase ‘renders the alien admissible … or removable’ in section [1229b(d)(1)] requires
only that an alien ‘be or become’ inadmissible or removable, i.e., be potentially removable if so
charged,” 24 I. & N. Dec. 29, 31 (B.I.A. 2006). But as the Fifth Circuit has correctly explained,
“[t]he [Board] in Jurado-Delgado clearly answered one narrow question,” which is similar, but
not identical, to the one presented here: “It held that an alien could be charged with removal on
one ground and be ineligible for cancellation of removal because of another ground. The opinion
does not explicitly answer whether a lawful permanent resident who does not need to be
admitted nonetheless has his period of continuous residence stopped by an offense rendering him
inadmissible.” Calix, 784 F.3d at 1009. Because the single-member decision here required an
extension (or at least a refinement) of Jurado-Delgado, we doubt that it qualifies under Quinchia
as one that “rel[ies] on” existing Board precedent.
One of the principal justifications for granting deference to administrative agencies is that
they operate pursuant to regular procedures that ensure thorough consideration and vetting of
interpretive issues. See Chevron, 467 U.S. at 865 (basing policy of deference, in part, on the
conclusion that “the agency considered the matter in a detailed and reasoned fashion”). When,
as here, those procedures are short-circuited, that justification evaporates. Cf. Rotimi v.
Gonzales, 473 F.3d 55, 57–58 (2d Cir. 2007) (refusing to give Chevron deference to a single-
member Board decision because (1) the Board itself affords such decisions no precedential
weight and (2) the Board’s governing regulations provide that it has a duty to provide “clear and
uniform guidance […] on the proper interpretation and administration” of the immigration laws,
which it shall do through precedential decisions) (cited in Quinchia, 552 F.3d at 1258).
18