Roderick Go v. Eric Holder, Jr. , 744 F.3d 604 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODERICK LIM GO, No. 11-73272
Petitioner,
Agency No.
v. A095-617-600
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 15, 2014—San Francisco, California
Filed March 7, 2014
Before: J. Clifford Wallace and Susan P. Graber, Circuit
Judges, and Richard Mills, Senior District Judge.*
Opinion by Judge Wallace;
Special Concurrence by Judge Wallace
*
The Honorable Richard Mills, Senior District Judge for the U.S.
District Court for the Central District of Illinois, sitting by designation.
2 GO V. HOLDER
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of an untimely motion to reopen
seeking protection under the Convention Against Torture
based on changed country conditions in the Philippines.
The panel rejected petitioner’s contention that the specific
time and number limitations on motions to reopen, set forth
at 8 C.F.R. § 1003.2(c), do not apply to motions that arise
under the Convention Against Torture. The panel explained
that the Convention is not violated by the imposition of
reasonable procedural requirements on the adjudication of a
petitioner’s claims.
The panel held that the Board did not abuse its discretion
in concluding that petitioner failed to show that the changed
circumstances exception to the bar on untimely motions to
reopen applied to this case.
Specially concurring, Judge Wallace wrote separately to
bring to the court’s attention an intracircuit split concerning
the amount of deference owed under Auer v. Robbins,
519 U.S. 452 (1997), to a single-member, non-precedential
Board decision interpreting its own regulations.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GO V. HOLDER 3
COUNSEL
Stacy Tolchin (argued), Law Offices of Stacy Tolchin, Los
Angeles, California, for Petitioner.
Stuart F. Delery, Principal Deputy Assistant Attorney
General; Blair T. O’Connor, Assistant Director; Don G.
Scroggin, and Matthew B. George (argued), Trial Attorneys,
United States Department of Justice, Office of Immigration
Litigation, Washington, D.C., for Respondent.
OPINION
WALLACE, Senior Circuit Judge:
Roderick Lim Go petitions us to review the Board of
Immigration Appeals’ (Board) denial of his motion to reopen
under the Convention Against Torture (CAT). Go contends
that the Board erroneously applied 8 C.F.R. § 1003.2(c), the
regulation governing motions to reopen, even though this
regulation “makes no reference” to the CAT. Go also
contends that the Board abused its discretion in concluding
that certain “new evidence” presented in his motion to reopen
was not material.
We have jurisdiction under 8 U.S.C. § 1252(a), and we
deny the petition. In a separately filed unpublished
disposition, we address the petition of Grace Tan Go, which
presents the same arguments as are presented here.
4 GO V. HOLDER
I.
In a previous proceeding, Go applied for asylum,
withholding of removal, and protection under the CAT. After
the Board denied those claims, we denied Go’s petition for
review in a published opinion. See Go v. Holder, 640 F.3d
1047 (9th Cir. 2011). Here, we briefly recapitulate the
background of this case, insofar as it is pertinent to the
present appeal.
As we explained in our prior opinion, Go’s application for
asylum and other forms of relief was predicated on his
allegation that he would be “subject to a sham criminal
prosecution in the Philippines if removed to that country.” Id.
at 1050. He alleged that he and his wife had been “falsely
charged with kidnapping” a prominent individual in the
Philippines, and that they had fled to the United States to
escape prosecution and avoid being retaliated against by
members of that individual’s family. Id. With respect to the
CAT, Go alleged that he “would be subject to torture if he
were held in a Philippine detention facility pending his trial
for kidnapping.” Id.An immigration judge (IJ) found that Go was ineligible
for asylum and withholding of removal because of his
admission that he was “involved in an illegal drug-trafficking
scheme.” Id. As to the CAT claim, the IJ concluded that Go
had “failed to carry his burden of demonstrating eligibility for
relief.” Id. This conclusion was predicated on testimony
from a “government witness” who had “testified that Go
would not be tortured in a Philippine detention facility while
awaiting trial.” Id. In two separate orders, the Board denied
Go’s appeal. Id. The first of these orders affirmed the IJ’s
conclusion that Go was statutorily ineligible for asylum and
GO V. HOLDER 5
withholding of removal. Id. However, the CAT claim was
remanded for further proceedings. Id. After the IJ held
proceedings to address that claim more fully, the Board
issued its second order, which rejected Go’s claim for relief
under the CAT. Id. at 1051. In this order, the Board
considered several items of evidence that had been presented
before the IJ, including: (1) the fact that “one of Go’s co-
defendants in the kidnapping . . . had not been tortured or
otherwise mistreated”; (2) the testimony of Cezar Tajanlangit,
a former prosecutor in the Philippines, “who testified that
torture was uncommon in the facility where Go would be
detained”; (3) the “notoriety” of the case, which made it
“unlikely that an ill-intentioned officer would believe that he
could abuse [Go] without being reported in the press”; and
(4) a resolution issued by the Philippine Justice Department
that called for dismissal of the kidnapping charges against
Go. Id.We denied Go’s petition to review the Board’s orders. As
to the CAT claim, we held that “substantial evidence
support[ed] the Board’s conclusion that Go is not likely to be
tortured upon return to the Philippines.” Id. at 1054. We
emphasized several aspects of the evidence that led to this
conclusion. First, we observed that one of Go’s “alleged
accomplices has been detained for some time without harm
or incident,” and that although several of his family members
had also been charged with participating in his alleged
crimes, none of them had been taken into government
custody, much less tortured. Id. at 1053. Second, we pointed
out that the Philippine government had ordered that the
kidnapping charges against Go be dismissed, and said that if
he is “no longer subject to a criminal prosecution in the
Philippines, it follows that he is unlikely to be detained, let
alone tortured.” Id. Finally, we stated that “even if the
6 GO V. HOLDER
kidnapping charges [were to] go forward,” there was still
additional evidence that Go was unlikely to be tortured. Id.
at 1054. We first highlighted that Tajanlangit, the former
prosecutor, had testified that torture was “not common” in the
facility where Go would be detained and that the
controversial nature of Go’s case would “increase public
scrutiny over the government’s conduct.” Id. We also
considered country reports stating that Philippine officials are
more likely to follow correct procedures where a criminal
suspect is from “an influential position or is of a higher social
status.” Id. “Viewing the record as a whole,” we upheld the
Board’s determination that Go was not likely to be tortured
upon return to the Philippines. Id.Following our decision, Go filed a motion before the
Board to reopen for protection under the CAT. Go’s motion
to reopen was predicated upon “new and previously
unavailable evidence,” which Go alleged “call[ed] into
question” the testimony offered by Tajanlangit before the IJ.
The Board denied Go’s motion to reopen as untimely, citing
8 C.F.R. § 1003.2(c) in support of this conclusion. It also
held that the “additional evidence regarding [Tajanlangit]
does not affect the reliability or veracity of his testimony in
this proceeding,” while the other “additional background
evidence” submitted in connection with the motion to reopen
did not “indicate that conditions are worsening or
deteriorating in the Philippines in a manner material” to Go’s
claim.
II.
The regulations governing motions to reopen before the
Board appear at 8 C.F.R. § 1003.2. These regulations provide
that a party may file only one motion to reopen, and that such
GO V. HOLDER 7
a motion “must be filed no later than 90 days after the date on
which the final administrative decision was rendered in the
proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2).
There are several exceptions to these limitations on a party’s
eligibility to file a motion to reopen, including an exception
for motions to reopen “based on changed circumstances
arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and
was not available and could not have been discovered or
presented at the previous hearing.” Id. § 1003.2(c)(3)(ii).
Go’s principal argument is that the regulations governing
motions to reopen at 8 C.F.R. § 1003.2(c) do not apply to
motions that arise under the CAT, insofar as the language of
these regulations “makes no reference to either the [CAT] or
to deferral of removal.” This is an argument that we have
repeatedly rejected in a series of unpublished decisions. See,
e.g., Singh v. Holder, 444 F. App’x 167, 167 (9th Cir. 2011)
(rejecting the petitioner’s “contention that there are no time
limits for filing a motion to reopen to apply for CAT relief,”
and citing 8 C.F.R. § 1003.2(c)(2) in support of that
conclusion); Chen Chen v. Holder, 388 F. App’x 608, 609
(9th Cir. 2010) (same); Flores v. Holder, 362 F. App’x 773,
774 (9th Cir. 2010) (same); Lopez Hernandez v. Holder,
339 F. App’x 781, 782 (9th Cir. 2009) (same).
That conclusion is also supported by the logic of our
precedents and by holdings from our sister circuits.1 Our
1
Although the Board in this case held that § 1003.2 applies, we do not
defer to that decision, because it is a “one-member, non-precedential,
[Board] order” and, therefore, “does not reflect the agency’s fair and
considered judgment on the matter in question.” Lezama-Garcia v.
8 GO V. HOLDER
decision in Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008),
is instructive. In Chen, we upheld a decision of the Board
holding that a petitioner’s motion to reopen was “time- and
number-barred . . . under 8 C.F.R. § 1003.2(c)(2).” Id. at
1030–31. The petitioner in that case argued that her removal
would violate the CAT. Id. at 1033. We rejected that
contention, stating that the petitioner had “failed to show how
[the CAT] is violated by the application of reasonable
procedural requirements for the adjudication of [a
petitioner’s] claims.” Id.In support of that conclusion, we cited with approval the
First Circuit’s decision in Foroglou v. Reno, 241 F.3d 111(1st Cir. 2001). As the First Circuit explained in Foroglou:
[The petitioner’s] main argument is that the
Board’s time limit on petitions to reopen is
itself invalid because it would result in
denying relief to deportees who might then
suffer torture, contrary to the [CAT] and to
the policies embodied in federal legislation
and regulations that implement the [CAT] or
otherwise protect the rights of aliens. The
short answer to this argument is that [the
petitioner] points to nothing in [the CAT] or
legislation that precludes the United States
from setting reasonable time limits on the
assertion of claims under [the CAT] in
connection with an ongoing proceeding or an
already effective order of deportation. Even
Holder, 666 F.3d 518, 532 (9th Cir. 2011) (internal quotation marks and
citation omitted).
GO V. HOLDER 9
in criminal cases, constitutional and other
rights must be asserted in a timely fashion.
Id. at 113.
Go’s argument, in a nutshell, is that there cannot be any
“regulatory limitation” on motions to reopen under the CAT.
But as we concluded in Chen, and as the First Circuit
explained in Foroglou, this is not the case. Rather, as we
held in Chen, the CAT is not violated by the imposition of
“reasonable procedural requirements” on the adjudication of
a petitioner’s claims. Chen, 524 F.3d at 1033. Indeed, in
Chen we implicitly held that the specific time and number
limitations on motions to reopen set forth in 8 C.F.R.
§ 1003.2(c)(2) could be applied to CAT claims, a holding we
make explicit in this opinion. Id. Go points to nothing in the
CAT itself, or in legislation implementing the CAT, that
would preclude the Board from setting reasonable procedural
requirements on motions to reopen under the CAT. See
Foroglou, 241 F.3d at 113. Moreover, Go points to no other
statute or regulation governing motions to reopen for CAT
claims. Thus, if 8 C.F.R. § 1003.2(c) did not apply to CAT
claims, there would be no mechanism for applicants under the
CAT to file a motion to reopen.
Finally, although we are aware of no published opinion
from another circuit that expressly holds that 8 C.F.R.
§ 1003.2(c) applies to CAT claims, it appears that every
circuit to have considered the question has concluded that it
does. See, e.g., Zheng v. Bureau of Citizenship &
Immigration Servs., 472 F. App’x 91, 92 (2d Cir. 2012)
(holding that “there is no merit to the petitioner’s argument
that motions to reopen seeking relief under the [CAT] are
excused from the applicable time and numerical limitations”);
10 GO V. HOLDER
Thomas v. Att’y Gen. of the U.S., 308 F. App’x 587, 591–92
(3d Cir. 2009) (concluding that a motion to reopen brought
under the CAT is governed by the time and number
limitations of 8 C.F.R. § 1003.2(c)); Sunarto v. Mukasey,
306 F. App’x 957, 961–62 (6th Cir. 2009) (concluding that a
motion to reopen that included a CAT claim was required to
meet the requirements of 8 C.F.R. § 1003.2(c)); Ding v. U.S.
Att’y Gen., 507 F. App’x 845, 847–48 (11th Cir. 2013)
(applying the timeliness limitation of 8 C.F.R. § 1003.2(c) to
a motion to reopen that included a CAT claim). As we have
repeatedly explained, in the immigration context the “need
for national uniformity is paramount,” because the power to
regulate immigration is “unquestionably exclusively a federal
power.” Ferreira v. Ashcroft, 382 F.3d 1045, 1050 (9th Cir.
2004) (internal quotation marks omitted); see also
Kaganovich v. Gonzales, 470 F.3d 894, 897–98 (9th Cir.
2006) (same). Thus, the uniformity among the circuits as to
the applicability of 8 C.F.R. § 1003.2(c) to CAT claims also
militates in favor of our holding.
Accordingly, we hold that the procedural requirements
specified in 8 C.F.R. § 1003.2(c) apply to CAT claims.
III.
Given that Go’s motion to reopen was governed by
8 C.F.R. § 1003.2(c), and therefore untimely, the Board
concluded that the motion could be granted only if it was
“based on changed circumstances arising in the country of
nationality” and predicated on “material” evidence of such
“changed circumstances” that was “not available and could
not have been discovered or presented at the previous
hearing.” The Board held that neither of the two types of
additional evidence presented in the motion to reopen met
GO V. HOLDER 11
this description. First, the Board considered additional
evidence regarding Tajanlangit, the former prosecutor from
the Philippines, and concluded that this evidence did not
“challenge or affect the credibility, reliability or veracity” of
his testimony. Second, the Board considered “additional
background evidence” about the Philippines. However, the
Board concluded that this evidence did not demonstrate
“worsening country conditions,” insofar as the record
“already contained generalized evidence suggesting a
relatively high level of mistreatment and abuse” in the
Philippines.
We review the Board’s denial of a motion to reopen for
abuse of discretion. Bhasin v. Gonzales, 423 F.3d 977, 983
(9th Cir. 2005). Under this standard, the Board’s decision
may only be reversed if it is “arbitrary, irrational, or contrary
to law.” Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008)
(internal quotation marks omitted). We hold that the Board
did not abuse its discretion in concluding that Go’s additional
evidence was immaterial. First, as to Tajanlangit, Go offered
evidence that he was “admonished” by a court in a case
involving a disgruntled former client, as well as evidence
regarding a bounced check allegedly issued by the
prosecutor’s office. The Board did not abuse its discretion in
concluding that this evidence did not undermine the
“credibility, reliability or veracity” of Tajanlangit’s
statements in this proceeding. Second, Go offered evidence
showing that there is corruption and killing in the relevant
area of the Philippines. The Board did not abuse its
discretion in concluding that the evidence of “mistreatment
and abuse” presented by Go did not constitute evidence of
“worsening” country conditions, which means that this
evidence was insufficient to show that the “changed
12 GO V. HOLDER
circumstances” exception to the bar on untimely motions to
reopen applies to this case.
IV.
Finally, Go argues that the Board should have granted his
motion to reopen sua sponte pursuant to 8 C.F.R. § 1003.2(a).
However, we lack jurisdiction to review the Board’s decision
not to invoke its sua sponte authority to reopen proceedings.
See, e.g., Sharma v. Holder, 633 F.3d 865, 874 (9th Cir.
2011).
PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
WALLACE, Senior Circuit Judge, concurring specially:
I write separately to call attention to an unfortunate
confusion in our precedents.
Our opinion makes the following assertion: “Although the
Board in this case held that § 1003.2 applies, we do not defer
to that decision, because it is a ‘one-member, non-
precedential, [Board] order’ and, therefore, does not reflect
the agency’s fair and considered judgment on the matter in
question.” Supra at 7 n.1., quoting Lezama-Garcia v. Holder,
666 F.3d 518, 532 (9th Cir. 2011) (internal quotation marks
and citation omitted). I accept this statement, because it
correctly reflects the holding in Lezama-Garcia. In my view,
however, Lezama-Garcia was wrongly decided. Worse, its
erroneous interpretation of Auer deference has created an
intracircuit split as to the type of deference owed to certain
GO V. HOLDER 13
agency pronouncements–namely, the one-member, non-
precedential Board decisions at issue here.
The outcome of this case is unaffected by this confusion,
insofar as Go did not raise the issue of the proper deference
to be accorded to the Board’s interpretation of the relevant
regulation, and thus waived any argument as to the issue. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Nonetheless, I write separately to call this issue to the
attention of our court.
I.
The confusion addressed in this concurrence arises from
a misunderstanding of a crucial distinction in administrative
law. That distinction is between the proper deference owed
to an agency’s interpretation of a statute and the proper
deference owed to an agency’s interpretation of its own
regulations. The principles of Chevron deference apply to
the former. See, e.g., Gonzalez v. Oregon, 546 U.S. 243,
255–56 (2006), discussing Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984). By contrast, the
principles of Auer deference apply to the latter. See, e.g., id.,discussing Auer v. Robbins, 519 U.S. 452 (1997); see also
Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820,
828–29 (9th Cir. 2012) (explaining that Auer stands for the
“principle that agencies’ interpretations of their own
regulations are entitled to deference, even when their
interpretation of statutes is not,” whereas Chevron deference
applies to an agency’s statutory interpretations).
In this case, the issue is the Board’s interpretation of its
own regulations–namely, 8 C.F.R. § 1003.2. Thus, Auer
deference should apply.
14 GO V. HOLDER
“Agencies are entitled to deference to their interpretation
of their own regulations.” Native Ecosystems Council v. U.S.
Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005). Under our
precedents,“where an agency interprets its own regulation,
even if through an informal process, its interpretation of an
ambiguous regulation is controlling under Auer unless
‘plainly erroneous or inconsistent with the regulation.’”
Bassiri v. Xerox Corp., 463 F.3d 927, 930 (9th Cir. 2006),
citing Auer, 519 U.S. at 461 (emphases added). This is
correct as a matter of administrative law. See Auer, 519 U.S.
at 461–62 (deferring to the interpretation of a regulation
presented in an amicus brief filed by the Department of
Labor). Thus, it is unsurprising that we have followed this
principle in a wide variety of contexts. See, e.g., Public
Lands for the People, Inc. v. U.S. Dept. of Agric., 697 F.3d
1192, 1199 (9th Cir. 2012) (according “wide deference” to
the Forest Service Manual’s interpretation of a regulation);
Barboza v. Cal. Ass’n of Prof’l Firefighters, 651 F.3d 1073,
1076, 1079 (9th Cir. 2011) (deferring to the interpretation of
a regulation advanced in an amicus brief by the Department
of Labor); Siskiyou Reg’l Educ. Project v. U.S. Forest Serv.,
565 F.3d 545, 548, 554–57 (9th Cir. 2009) (deferring to the
interpretation of a “mining-related directive” set forth in a
“Memorandum to Regional Foresters” issued by the Forest
Service); Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001,
1005 n.1 (9th Cir. 2008) (deferring to an Office of Thrift
Supervision legal opinion interpreting a regulation); L.A.
Closeout, Inc. v. Dep’t of Homeland Sec., 513 F.3d 940,
941–42 (9th Cir. 2008) (deferring to an internal memorandum
used by the Department of Homeland Security in interpreting
a regulation). As these cases make clear, an agency’s
interpretation of an ambiguous regulation–no matter how
informal the pronouncement in which the agency advances its
GO V. HOLDER 15
interpretation–is controlling, unless that interpretation is
plainly erroneous or inconsistent with the regulation itself.
Recently, however, we misread this long line of
precedent. See Lezama-Garcia v. Holder, 666 F.3d 518 (9th
Cir. 2011). In Lezama-Garcia, the majority announced that
a single-member, non-precedential decision of the Board “is
entitled to no deference under Auer as an agency
interpretation of a regulation.” Id. at 532. Regrettably,
Lezama-Garcia has since led other panels within our Circuit
astray. See Errera v. Holder, 492 F. App’x 782, 791 (9th Cir.
2012) (Bennett, J., concurring).
The erroneous nature of this statement was correctly
pointed out by the dissent in Lezama-Garcia. 666 F.3d at
538–39 (Rawlinson, J., dissenting) (explaining that the
majority had erred, inter alia, by “giv[ing] absolutely no
deference to the agency’s interpretation of its regulation”).
The refusal of the majority in Lezama-Garcia to accord
deference, under Auer, to a non-precedential decision of the
Board is irreconcilable with Bassiri, which holds that even an
“informal” agency interpretation must be afforded Auer
deference. Bassiri, 463 F.3d at 930.
In support of its conclusion, the majority in Lezama-
Garcia cited a case from the Seventh Circuit, rather than
considering Bassiri or its progeny within the Ninth Circuit.
See Lezama-Garcia, 666 F.3d at 532, citing Joseph v. Holder,
579 F.3d 827, 833–35 (7th Cir. 2009). To make this already
confusing situation even more confounded, the reasoning of
the Seventh Circuit has been rejected by both the Second and
Eighth Circuits. Compare Joseph, 579 F.3d at 832–33
(deciding to afford lesser deference to a non-precedential,
one-member decision of the Board) with Mansour v. Holder,
16 GO V. HOLDER
739 F.3d 412, 414–15 (8th Cir. 2014) (holding that “[t]o the
extent the [unpublished Board] decision interprets its own
regulations, the interpretation is controlling unless ‘plainly
erroneous or inconsistent with the regulation’”) and Linares
Huarcaya v. Mukasey, 550 F.3d 224, 228–30 (2d Cir. 2008)
(giving “substantial deference” under Auer to a non-
precedential Board decision interpreting Justice Department
regulations).
In any event, and regardless of the contrary
misinterpretations proffered by us in Lezama-Garcia and by
the Seventh Circuit in Joseph, the law of our circuit is clear:
“where an agency interprets its own regulation, even if
through an informal process, its interpretation of an
ambiguous regulation is controlling under Auer unless
‘plainly erroneous or inconsistent with the regulation.’”
Bassiri, 463 F.3d at 930.
II.
The distinction between the type of deference owed to an
agency’s interpretation of a statute and that owed to its
interpretation of its own regulations is critical to
understanding the case on which Lezama-Garcia relied. In
Garcia-Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006),
we considered whether unpublished, non-precedential
decisions of the Board should be afforded Chevron deference.
Id. at 1012–13. The question of whether Chevron deference
should be afforded to the Board’s decision was appropriate,
because the court in Garcia-Quintero was considering the
Board’s interpretation of “the cancellation of removal statute,
8 U.S.C. § 1229b.” Id. at 1009. The holding of Garcia-
Quintero was strictly that Chevron deference should not be
afforded to unpublished, non-precedential decisions of the
GO V. HOLDER 17
Board. Id. at 1014. Garcia-Quintero says nothing about
Auer deference.
Lezama-Garcia, which relied upon Garcia-Quintero,
crucially failed to apprehend that the latter case was
considering an agency’s interpretations of a statute, and thus
solely dealt with Chevron deference. Lezama-Garcia begins
by observing that Garcia-Quintero had held that a “single-
member [Board] decision interpreting a statutory provision”
is entitled only to deference “in proportion to [its] power to
persuade.” Lezama-Garcia, 666 F.3d at 532. So far, so good.
The opinion in Lezama-Garcia then falls into error, however,
when it goes on to hold that “[f]or a similar reason, [a single-
member Board decision] is entitled to no deference under
Auer as an agency interpretation of a regulation.” Id. The
error, again, is in failing to recognize that Chevron and Auer
deference are significantly different, and that the reasons for
deferring (or not deferring) under Chevron are not relevantly
“similar” to the reasons for deferring (or not deferring) under
Auer.
The relevant difference between Chevron and Auer
deference is well explained by Judge Berzon in her recent
opinion in Price. There, she discusses the distinction
between “an agency’s informal interpretations of its own
regulations [which are entitled to Auer deference] and of its
governing statute [which are entitled to Chevron deference].”
Price, 697 F.3d at 829. As she explains, the “rigors of
rulemaking” are pertinent to an understanding of why, in the
context of an agency’s statutory interpretation, courts are to
apply principles of Chevron deference. Id. By contrast, once
an agency has “undertake[n] careful deliberation about how
best to effectuate statutory policies during the demanding
process of promulgating regulations”–a process during which,
18 GO V. HOLDER
importantly, “agencies are held accountable to the public
through the formal rulemaking process”–it makes sense to
demand “[l]ess formality” of an agency’s “subsequent
interpretation” of its own regulations. Id. at 829–30. Thus,
in the latter context, the principles of Auer deference are
appropriate.
As this discussion indicates, it does not follow, from the
fact that we would afford no Chevron deference to a single-
member Board interpretation of a statute, that we would
therefore also afford no Auer deference to such an
interpretation of a regulation. See Lezama-Garcia, 666 F.3d
at 532. If Lezama-Garcia had applied Bassiri and its
progeny, this error would have been avoided.
III.
One might try to salvage the holding in Lezama-Garcia
by arguing that Auer does not mandate deference to a one-
member, unpublished decision of the Board, insofar as such
a decision is not legally binding on the agency itself. Such an
argument, however, would be unfounded. I know of no case
in which we have held that the general principles of Auer
deference, as articulated in such cases as Bassiri, should not
be followed if the pronouncement in which the agency
articulates its interpretation of a regulation is not legally
binding on that agency.
In fact, our court has afforded Auer deference to agency
documents that are not legally binding on the agency that
issued them. In Public Lands for the People, Inc. v. U.S.
Department of Agriculture, 697 F.3d 1192, 1199 (9th Cir.
2012), we gave “wide deference” under Auer to the Forest
Service Manual’s interpretation of a regulation. But in
GO V. HOLDER 19
Western Radio Services Co., Inc. v. Espy, 79 F.3d 896 (9th
Cir. 1996), we held that the Forest Service Manual does not
have the force and effect of law, insofar as it is “not
substantive in nature,” is “not promulgated in accordance
with the procedural requirements of the Administrative
Procedure Act,” and is not “promulgated pursuant to an
independent congressional authority.” Id. at 901. Therefore,
we held that the Forest Service Manual cannot be binding on
the agency that promulgated it. Id. at 901–02.
Thus, even though we have expressly held that the Forest
Service Manual does not have the force of law and is not
binding on the agency that promulgated it, our court has
nonetheless given Auer deference to the interpretation of a
regulation set forth by that Manual. Public Lands, 697 F.3d
at 1199. Under the same logic, and under Bassiri and its
progeny, we must give Auer deference to an unpublished
decision by the Board, even though such a decision lacks the
force of law and is not binding on the Board.
IV.
Although I agree with the outcome arrived at by our
opinion, a more straightforward way to reach that outcome
would have been through the principles of Auer deference.
Those principles, as articulated by this court’s precedents,
teach that we should regard as “controlling” the Board’s
decision to address motions to reopen that present CAT
claims under 8 C.F.R. § 1003.2(c). Bassiri, 463 F.3d at 930(9th Cir. 2006). When considering whether to defer under
Auer, we begin by determining whether the regulation is
ambiguous. Id. at 931 (citation omitted). If the regulation is
ambiguous, the agency’s interpretation is controlling unless
that interpretation is “plainly erroneous or inconsistent with
20 GO V. HOLDER
the regulation.” Id. (citations omitted). “Under this standard,
we defer to the agency’s interpretation of its regulation unless
an alternative reading is compelled by the regulation’s plain
language or by other indications of the [agency’s] intent at the
time of the regulation’s promulgation.” Id. (internal
quotation marks and citation omitted).
Applying this standard, we should defer to the Board’s
interpretation of 8 C.F.R. § 1003.2(c). First, the regulation is
ambiguous. Although the regulation does not expressly refer
to the CAT, there is also nothing in the language of the
regulation that precludes applying it to CAT claims. Indeed,
as our opinion observes, this court has repeatedly taken for
granted that it does apply to CAT claims. Thus, the
regulation is ambiguous as to this issue. Accordingly, under
Auer, we must defer to the Board’s interpretation unless an
alternative interpretation is “compelled by the regulation’s
plain language” or by other indications of the Board’s intent
at the time the regulation was promulgated. Id. As discussed
above, 8 C.F.R. § 1003.2(c) is silent as to CAT claims; thus,
the plain language of the regulation does not compel us to
reject the Board’s interpretation that it applies to such claims.
Nor does Go point to any indications that the Board intended
for the regulation not to apply to CAT claims at the time it
was promulgated. Therefore, the Board’s interpretation that
8 C.F.R. § 1003.2(c) applies to CAT claims is controlling,
and we should defer to that interpretation.1
1
Go does not argue that the regulation at issue, 8 C.F.R. § 1003.2(c), is
itself an improper interpretation of the Immigration and Nationality Act.
In any event, such an argument would fail. See Vega v. Holder, 611 F.3d
1168, 1170–71 (9th Cir. 2010).
GO V. HOLDER 21
V.
In general, the “appropriate mechanism for resolving an
irreconcilable conflict [between our decisions] is an en banc
decision.” United States v. Hardesty, 977 F.2d 1347, 1348
(9th Cir. 1992) (en banc) (per curiam). However, we have
also held that even where the “orderly development” of our
case law “might benefit from an en banc review,” it is not
necessary to engage in such review if a particular case does
not “compel[]” us to do so. Vasquez v. Astrue, 572 F.3d 586,
593 n.5 (9th Cir. 2008) (explaining that we may “avoid a
choice among rules which [the] case does not require”).
Here, because of Go’s waiver of the issue, and because we
arrive at the same result regardless of the level of deference
provided to the Board’s interpretation of 8 C.F.R.
§ 1003.2(c), this case does not require us to call for en banc
review to resolve the tension between Bassiri and its progeny
and the inconsistent view expressed in Lezama-Garcia. Thus,
it will fall to a future panel of our court to address this
confusion and correct the error of Lezama-Garcia.