Romero v. United States Department of Justice ( 2014 )

Case: 13-20363 Document: 00512542081 Page: 1 Date Filed: 02/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-20363 February 24, 2014
Summary Calendar
Lyle W. Cayce
Clerk
MARIA EUGENIA STANLEY ROMERO,
Plaintiff–Appellant
v.
UNITED STATES DEPARTMENT OF JUSTICE, Eric Holder, Jr., in His
Official Capacity as Attorney General of the United States; EXECUTIVE
OFFICE OF IMMIGRATION REVIEW, Juan P. Osuna, in His Official
Capacity as Director; BOARD OF IMMIGRATION APPEALS, David L. Neal,
in His Official Capacity as Chairman; EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW, OFFICE OF THE GENERAL COUNSEL, Scott
Anderson, Deputy Disciplinary Counsel,
Defendants–Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-359
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellant Maria Eugenia Stanley Romero (“Romero”) appeals
the district court’s dismissal of her claims alleging that the Executive Office
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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for Immigration Review (“EOIR”) violated the Administrative Procedures Act
(“APA”) when it amended the regulations prescribing when law students and
unlicensed law graduates can represent individuals before immigration courts.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Legal Background
The EOIR is the federal agency within the Department of Justice that
oversees immigration courts and supervises the Board of Immigration Appeals
(“BIA”), the Office of the Chief Immigration Judge, and the Office of the Chief
Administrative Hearing Officer. 8 C.F.R. §§ 1003.0(a), 1003.9. On July 30,
2008, the EOIR proposed several changes to the rules and procedures
governing who may appear before immigration judges and the BIA.
Professional Conduct for Practitioners, 73 Fed. Reg. 44,178 (July 30, 2008).
Specifically, the EOIR proposed to amend the language of 8 C.F.R.
§ 1292.1(a)(2), which governs when law students and law graduates not yet
admitted to the bar may appear in a representative capacity before
immigration judges and the BIA. 73 Fed. Reg. at 44,180. The proposed rule
sought “to clarify that law students and law graduates must be students and
graduates of accredited law schools in the United States.” 73 Fed. Reg. at
44,180. In addition, although the existing regulations contained rules
governing disciplinary procedures for practitioners who engaged in unethical
behavior before the EOIR, the proposed rules also sought to “increase the
number of grounds for discipline and improve the clarity and uniformity of the
existing rules while incorporating miscellaneous technical and procedural
changes.” 73 Fed. Reg. at 44,178.
After a comment period, the EOIR published the final rules on December
18, 2008. Professional Conduct for Practitioners, 73 Fed. Reg. 76,914 (Dec. 18,
2008). The final rules included the change to 8 C.F.R. § 1292.1 and required
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that unlicensed law graduates and law students who practiced before the EOIR
be graduates of or students at accredited United States law schools. 73 Fed.
Reg. at 76,927 (to be codified at 8 C.F.R. § 1292.1(a)(2)). Although the amended
rules were published in the Federal Register, an error was made when printing
the new rules in the Code of Federal Regulations (“C.F.R.”). Text relating to
the disclosure of information during preliminary inquiries appeared instead of
the newly clarified rule. After the EOIR discovered the mistake, it printed a
correction to the C.F.R. See Professional Conduct for Practitioners, 76 Fed.
Reg. 81,789 (Dec. 29, 2011).
B. Factual Background 1
Romero is a graduate of a Venezuelan law school, and at the time of the
facts giving rise to this lawsuit, Romero was not licensed to practice law before
any United States jurisdiction. In 2011, the EOIR received a complaint from
the Department of Homeland Security (“DHS”) about Romero’s appearance
before an immigration judge. Also in 2011, the BIA forwarded the EOIR a
letter from Stephen Mock (“Mock”), an attorney licensed to practice in Texas,
seeking to substantiate Romero’s qualifications to appear before the EOIR.
DHS subsequently filed a complaint with the EOIR that Mock was assisting
Romero in the unauthorized practice of law before the EOIR.
After conducting an investigation, the EOIR determined that,
throughout 2010 and 2011, Romero had repeatedly held herself out as an
attorney when appearing before the EOIR representing individuals in removal
proceedings. It concluded that Romero had also entered pleadings, examined
witnesses, and submitted documentation indicating that she was an attorney.
1 As in the district court, Romero does not include a concise recitation of the factual
background in her brief. As the district court did, we rely on the documents Romero
submitted to the district court that are included in the record to piece together the facts giving
rise to her claims.
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After completing its investigation, the EOIR sent Romero a letter informing
her that it had determined she did not meet the requirements in the
regulations to practice before the EOIR. Specifically, the EOIR informed
Romero that, pursuant to 8 C.F.R. § 1292.1(a)(2), law students and unlicensed
law graduates must be students and graduates of an accredited United States
law school in order to appear before the EOIR under the supervision of a
licensed attorney. The EOIR ordered Romero to cease and desist.
C. Procedural Background
On February 7, 2012, Romero, proceeding pro se, filed a complaint
alleging that the EOIR had violated the APA when it amended the rules
governing who can appear before the EOIR. After the Defendants filed a
motion to dismiss, Romero filed an amended complaint. Romero claimed, inter
alia, that the printing error in the C.F.R. deprived her of notice of the amended
rule and, because the EOIR lacked the authority to make the rule change, it
had acted arbitrarily and capriciously and abused its discretion. 2
In its March 21, 2013 order, the district court granted the Defendants’
motion to dismiss for failure to state a claim upon which relief can be granted
for all of Romero’s claims except for her allegation that the EOIR abused its
discretion. The district court found that under the APA, 5 U.S.C. § 553,
administrative agencies are only required to publish final rules in the Federal
Register. Thus, despite Romero’s complaints about the printing error in the
2 Romero also claimed: (1) the changed rule was issued without proper analysis under
the Regulatory Flexibility Act, 5 U.S.C. § 601; (2) the rule was issued without due regard for
Executive Orders 13132 and 13563; and (3) the new rules failed to cite administrative
authority. The district court dismissed all of these allegations for failing to state a claim
upon which relief can be granted. Romero does not press these three arguments on appeal,
and so those arguments are waived. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir.
2008) (“It is a well worn principle that the failure to raise an issue on appeal constitutes
waiver of that argument.” (citing United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.
2000))).
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C.F.R., the EOIR had complied with the APA’s requirements, and so the
district court found that Romero had failed to state a claim upon which she
could be granted relief. Next the district court dismissed Romero’s claims that
the EOIR lacked authority to promulgate the rule requiring that unlicensed
law graduates be graduates of an accredited U.S. law school in order to appear
before the EOIR. Citing Goldsmith v. United States Board of Tax Appeals, 270
U.S. 117 (1926), the district court found that the EOIR has the authority to
govern who can practice before immigration courts. The EOIR derives its
power to control who practices before immigration courts from its power to
oversee the administration of those courts pursuant to 8 U.S.C. §§ 1103 and
1362, and so the district court concluded that Romero could not make out a
valid claim that the EOIR lacked authority to promulgate the rule change. The
district court, however, found that the Defendants had failed to address
Romero’s claims that the EOIR had acted arbitrarily and capriciously, and so
it refused to grant the Defendants’ motion to dismiss as to that claim.
The court subsequently granted the Defendants’ motion for leave to file
additional briefing. After the Defendants submitted their additional briefing,
the district court took up the Defendants’ motion under Federal Rule of Civil
Procedure 12(c) for judgment on the pleadings as to Romero’s claim that the
EOIR abused its discretion and acted arbitrarily and capriciously. In its June
10, 2013 order, the district court granted the motion and dismissed Romero’s
remaining claim. The district court found that Romero failed to provide enough
factual support to put the Defendants on notice of the basis of her substantive
claims. Because the EOIR was simply following and enforcing its own rule,
the district court reasoned, it could not be acting arbitrarily and capriciously.
Further, the EOIR had met the minimal requirement that it provide reasons
for its actions by explaining the rationale underlying the rule change in the
Federal Register. Thus, as a legal matter, even assuming all of Romero’s
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pleadings were true, they did not “give rise to a legal cause of action,” and so
the district dismissed Romero’s remaining claim.
Romero timely appealed.
II. JURISDICTION
The district court provided a detailed discussion of the basis for its
jurisdiction, and we adopt its reasoning here. This is an appeal of a final
judgment from a district court, and so this Court has jurisdiction pursuant to
28 U.S.C. § 1291.
III. STANDARD OF REVIEW
This Court reviews the district court’s grant of a motion to dismiss and
motion for judgment on the pleadings de novo. Jebaco, Inc. v. Harrah’s
Operating Co., 587 F.3d 314, 318 (5th Cir. 2009) (citing Doe v. MySpace, Inc.,
528 F.3d 413, 418 (5th Cir. 2008)). The standard for deciding a 12(b)(6) motion
to dismiss is the same as the standard for deciding a 12(c) motion for judgment
on the pleadings. Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir.
2007). “Viewing the facts as pled in the light most favorable to the nonmovant,
a motion to dismiss or for a judgment on the pleadings should not be granted
if a complaint provides enough facts to state a claim to relief that is plausible
on its face.” Jebaco, 587 F.3d at 318 (citation and internal quotation marks
omitted). The complaint must also do more than allege labels and conclusions.
Id. (citation and internal quotation marks omitted). “[A] formulaic recitation
of the elements of a cause of action will not do, and factual allegations must be
enough to raise a right to relief above the speculative level.” Id. (citation and
internal quotation marks omitted).
IV. DISCUSSION
We construe Romero’s brief as making three arguments on appeal: (1)
the EOIR did not correctly promulgate the change to 8 C.F.R. §1292.1(a)(2); (2)
the EOIR lacked the authority to make the rule change; and (3) the EOIR
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arbitrarily and capriciously accused her of the unauthorized practice of law.
We address each in turn. 3
A. Whether the EOIR correctly promulgated the change to 8
C.F.R. §1292.1She argues that the EOIR failed to promulgate the change to 8 C.F.R.
§ 1292.1(a)(2) correctly and that the change violated several statutes, including
5 U.S.C. §§ 553 and 1105 and 44 U.S.C. §§ 1505 and 1507. As she did before
the district court, Romero also points to the publication error in the C.F.R. and
claims that the printing error deprived her of notice.
We agree with the district court that Romero has failed to state a claim
upon which relief can be granted. The APA’s rule-making requirements appear
in 5 U.S.C. § 553. Those rules make clear that the APA only requires
administrative agencies to publish general notice of proposed rule making in
the Federal Register, see 5 U.S.C. § 553(b), and the EOIR complied with that
rule, see 73 Fed. Reg. at 44,189. While there was an error in printing the final
rule in the C.F.R., the final rule was correctly published in the Federal
Register. See 73 Fed. Reg. at 76,927. Publication in the Federal Register
provides notice to those affected by the rule. See 44 U.S.C. § 1507; see also
Lyng v. Payne, 476 U.S. 926, 942–43 (1986) (explaining that publication in the
Federal Register “was more than ample to satisfy any due process concerns”).
Thus, the EOIR complied with the publication requirements of the APA, and
Romero received notice as a matter of law. The district court properly
dismissed this claim.
B. Whether the EOIR lacked authority to make this rule change
3 Romero also appears to argue before this Court that the change to 8 C.F.R.
§ 1292.1(a)(2) violates the Equal Protection clause. Romero failed to make this argument in
the district court. Following “[t]he general rule of this court . . . that arguments not raised
before the district court are waived,” Celanese Corp. v. Martin K. Eby Constr. Co., 620 F.3d
529, 531 (5th Cir. 2010), we do not consider that argument on appeal.
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Romero also argues that the EOIR lacked the authority to promulgate
the change to 8 C.F.R. § 1292.1(a)(2) requiring that law students and
unlicensed law graduates be students or graduates of a U.S. law school in order
to practice, with a licensed attorney’s supervision, before the EOIR. She claims
that the EOIR has “eliminat[ed] the term or concept of foreign law graduates.”
Romero also argues that the rule change contradicts congressional intent to
gain a pool of qualified practitioners who can appear before immigration
courts. Giving Romero’s pro se brief a liberal construction, we view this as an
argument that the EOIR violated 5 U.S.C. § 706(2)(A) when it made this rule
change. See 5 U.S.C. § 706(2)(A) (directing the reviewing court to “hold
unlawful and set aside agency action” that is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law”).
As the Supreme Court recently explained, “[w]hen an administrative
agency sets policy, it must provide a reasoned explanation for its action. That
is not a high bar, but it is an unwavering one.” Judulang v. Holder, 132 S. .Ct.
476, 479 (2011). When conducting this review, our scope is “narrow,” and we
cannot “substitute [our] judgment for that of the agency.” Id. at 483 (citation
omitted).
We hold that the EOIR did not violate 5 U.S.C. § 706(2)(A) when it made
this rule change. The EOIR gave reasons for its decision to amend the rule
and to require that law students and unlicensed law graduates be students and
graduates of United States law schools in order to appear before the EOIR. See
73 Fed. Reg. at 44,185 (“The rule on appearances by law students and
graduates was promulgated with the intent that such individuals would
provide representation only under proper supervision and within the context
of pro bono representation sponsored by an accredited law school or a non-
profit organization.”); id. (explaining that the original rule “was not intended
to permit graduates of foreign law schools to practice law before EOIR without
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becoming duly licensed in the United States” and that the amended rule would
clarify that); 73 Fed. Reg. at 76,916 (“[T]he [amended] rule will allow EOIR to
investigate and prosecute instances of misconduct more effectively and
efficiently.”). Given the narrow scope of our review and the clear reasons the
EOIR gave for amending the rule, we agree with the district court that Romero
cannot gain relief on this ground.
C. Whether the EOIR acted arbitrarily and capriciously in
accusing Romero of the unauthorized practice of law
Finally, Romero claims that the EOIR acted arbitrarily and capriciously
when it accused her of the unauthorized practice of law and that the EOIR
accused her without investigation and without fact finding. 4 We again agree
with the district court that Romero has failed to state a claim upon which she
can be granted relief. The EOIR has the authority to regulate the conduct of
practitioners who appear before it. See 8 U.S.C. §§ 1103, 1362; see also
Goldsmith, 270 U.S. at 121–23 (holding that an agency, which has the
authority to set general rules governing hearings before it, has the power to
create and enforce rules limiting who can practice and appear before the
agency); Koden v. U.S. Dep’t of Justice, 564 F.2d 228, 235 (7th Cir. 1977)
(holding that the BIA and the Immigration and Naturalization Service have
the authority to bar a practitioner from appearing before it). When the EOIR
sent Romero the cease and desist letter, it was regulating the conduct of those
who appear before it, exactly as it is authorized to do. In addition, Romero’s
only support for her allegation that the EOIR acted arbitrarily and capriciously
is her claim that the EOIR sent her the cease and desist letter without
investigation and fact-finding—but the record shows that the EOIR conducted
4 On appeal, Romero for the first time claims that she is currently enrolled in an
L.L.M. program at an accredited United States law school. Romero’s current enrollment,
however, has no impact on the issues and facts in this appeal.
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an investigation into Romero and gave her time to respond to the allegations.
Thus, the district court was correct to dismiss this claim.
V. CONCLUSION
For the foregoing reasons, we AFFIRM.
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