Esmelda Ruiz v. U.S. Attorney General

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10445
____________________
ESMELDA RUIZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A096-091-552
____________________
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2 Opinion of the Court 22-10445
Before JILL PRYOR, NEWSOM, and GRANT, Circuit Judges.
NEWSOM, Circuit Judge:
Esmelda Ruiz, a native and citizen of Peru, appeals the
Board of Immigration Appeals’ determination that she is ineligible
for relief under 8 U.S.C. § 1229b(b)(2), a provision whose language
was originally adopted as part of the Violence Against Women Act
of 1994 and that outlines the conditions under which certain “bat-
tered spouse[s] or child[ren]” qualify for discretionary cancellation
of removal. As relevant here, it requires a petitioning alien to show
that she “has been battered or subjected to extreme cruelty” by her
spouse or parent. 8 U.S.C. § 1229b(b)(2)(A)(i).
Ruiz contends that the Immigration Judge and the BIA made
two errors in refusing her cancellation request. First, she maintains
that, as a matter of law, they misinterpreted the statutory term “ex-
treme cruelty” to require proof of physical—as distinguished from
mental or emotional—abuse. And second, she asserts that, having
misread the law, the IJ and the BIA wrongly concluded that she
doesn’t qualify for discretionary relief.
We agree with Ruiz that the IJ and the BIA misinterpreted
§ 1229b(b)(2) and thereby applied an erroneous legal standard in
evaluating her request for cancellation of removal. Accordingly,
we grant her petition for review and remand to the BIA for further
consideration.
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22-10445 Opinion of the Court 3
I
A
Esmelda Ruiz entered the United States with her son on a
six-month nonimmigrant visa in 2001. Shortly thereafter, she mar-
ried Gavin Blanco. Only a year into her marriage, Ruiz was diag-
nosed with breast cancer. She received chemotherapy and, as a re-
sult, lost her hair and broke out in hives. Ruiz testified that follow-
ing her diagnosis Blanco’s attitude toward her changed, and he be-
came “rude” and “obnoxious.” He told her that “if they remove[d]
[her] breast, that was the end of it.” After she underwent a mastec-
tomy, he “got [her] out of [the] bed” in “a cruel way,” grabbed her
arm, forced her in front of a mirror, and said, “You are not a
woman for me anymore.” Ruiz’s son, Cristian, corroborated that
incident and testified that, in general, Blanco “scream[ed] at” her.
Cristian also reported that he once heard “something break” while
Ruiz and Blanco were arguing.
Following Ruiz’s mastectomy, Blanco filed for divorce,
sought a restraining order against her, and, she says, took $2,500
from their joint bank account. Save for the one instance in which
he grabbed her arm, Ruiz has not alleged that Blanco physically
abused her. She has alleged, however, that as a result of Blanco’s
treatment of her, she suffered from post-traumatic stress disorder
and required psychotherapy. Happily, Ruiz is now cancer-free.
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4 Opinion of the Court 22-10445
B
In 2009, the government initiated removal proceedings
against Ruiz on the ground that she had long overstayed the six
months that her nonimmigrant visa allowed her to stay in the
United States. 1 She filed for cancellation of removal under 8 U.S.C.
§ 1229b(b)(2), which is titled “Special rule for battered spouse or
child.” The cancellation proceedings have been ongoing ever since.
Congress enacted what is now § 1229b(b)(2) as part of the
Violence Against Women Act to enable certain victims of domestic
abuse to obtain discretionary deportation relief. See Bedoya-Melen-
dez v. U.S. Att’y Gen., 680 F.3d 1321, 1326 (11th Cir. 2012), overruled
on other grounds by Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1278 (11th
Cir. 2020) (en banc). To qualify for cancellation of removal under
§ 1229b(b)(2), an alien must establish five prerequisites: (1) that she
has been “battered or subjected to extreme cruelty” by a spouse or
parent; (2) that she has been continuously present in the United
States for at least three years immediately preceding her applica-
tion; (3) that she has been a person of good moral character during
that period; (4) that she doesn’t have any disqualifying criminal con-
victions or other specified grounds of inadmissibility or deportabil-
ity; and (5) that removal would result in extreme hardship to her,
her child, or her parent. 8 U.S.C. § 1229b(b)(2)(A)(i)–(v). The lone
1 Ruiz had earlier applied to adjust her immigration status based on her mar-
riage to Blanco, but her application was denied on the ground that she had
married “for the primary purpose of circumventing the immigration laws of
the United States.”
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22-10445 Opinion of the Court 5
dispute here is whether Ruiz was “battered or subjected to extreme
cruelty” within the meaning of the statute.
The IJ concluded that although Ruiz met the statute’s other
requirements, she hadn’t been “battered or subjected to extreme
cruelty.” He explained his determination as follows:
Even taking into account Cristian’s testimony that Re-
spondent and Mr. Blanco would often fight after she
was diagnosed with cancer, and that he once heard
something break when they were fighting, there is
still no indication of physical violence or physical
harm to Respondent. Additionally, Respondent has
failed to submit any documentary evidence that sup-
ports her contention of abuse, aside from her own
written statement and a letter from a mental health
counselor stating that she is attending psychotherapy
sessions as of July 2015 as “ordered” by the court and
that she suffers from posttraumatic stress disorder.
Both of these documents fail to indicate additional
facts of physical abuse or violent harm that would
support Respondent’s claims.
Ruiz appealed the IJ’s decision to the BIA. Specifically, she
argued that the IJ improperly interpreted § 1229b(b)(2)’s phrase
“extreme cruelty” to require proof of physical violence and to ex-
clude mental or emotional abuse. In a non-precedential single-
judge order, the BIA “adopt[ed] and affirm[ed]” the IJ’s decision
and expressly “disagree[d] that the [IJ] used the wrong standard in
this case.” The BIA went on to explain itself as follows:
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6 Opinion of the Court 22-10445
[W]e concur with the Immigration Judge that the re-
spondent did not establish extreme cruelty at the
hands of her former husband. The primary issue here
is that the respondent’s former husband abandoned
the respondent once she became ill. He was no
longer willing to act in support of the respondent and
made hurtful comments to her about this fact. His
rejection of her when she was ill and especially after
her mastectomy is exceedingly unfortunate. How-
ever, this kind of abandonment is not the type of
treatment that we generally consider to be “extreme
cruelty” for purposes of the VAWA. See Matter of A-
M-, 25 I&N Dec. 66, 72 (BIA 2009) (explaining that
“[a]ccording to the legislative history, the purpose of
the VAWA provisions amending the Act was to permit
battered spouses to leave their abusers without fear of
deportation or other immigration consequences.”).
The Immigration Judge properly considered the “in-
sults and lack of support [the respondent] endured
during such a difficult time.” Like the Immigration
Judge, we are not unsympathetic with the respond-
ent’s situation. Nevertheless, we concur that the re-
spondent did not establish eligibility for cancellation
of removal under the VAWA.
Ruiz timely petitioned this Court for review of the BIA’s de-
cision.
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22-10445 Opinion of the Court 7
II
First things first: The government contends that we lack ju-
risdiction over Ruiz’s petition under 8 U.S.C. § 1252(a)(2). That
statute contains two relevant subsections. The first is a jurisdic-
tion-stripping provision. In pertinent part, it states that “[n]otwith-
standing any other provision of law . . . no court shall have jurisdic-
tion to review . . . any judgment regarding the granting of relief un-
der section . . . 1229b . . . of this title.” Id. § 1252(a)(2)(B)(i). The
second, as relevant here, preserves jurisdiction over “questions of
law”: “Nothing in subparagraph (B) . . . which limits or eliminates
judicial review, shall be construed as precluding review of consti-
tutional claims or questions of law raised upon a petition for review
. . . .” Id. § 1252(a)(2)(D).
In support of its jurisdictional argument, the government
cites our decision in Bedoya-Melendez v. U.S. Attorney General, in
which we held that § 1252(a)(2) precludes review of the BIA’s de-
termination whether an alien qualifies for relief under
§ 1229b(b)(2). See 680 F.3d 1321, 1325–28 (11th Cir. 2012). Sitting
en banc, though, we recently overruled Bedoya-Melendez in Patel v.
U.S. Attorney General, 971 F.3d 1258, 1278 (11th Cir. 2020) (en banc).
The Supreme Court thereafter granted certiorari in Patel and af-
firmed our decision. See Patel v. Garland, 142 S. Ct. 1614 (2022).
Importantly for present purposes, in so doing, the Supreme Court
echoed the distinction that we had drawn between questions of
fact, over which we lack jurisdiction, and questions of law, over
which we retain it. See id. at 1623.
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8 Opinion of the Court 22-10445
It remains to apply § 1252(a)(2)’s fact-law distinction—and
the logic of Patel—to each of Ruiz’s two challenges. We conclude
that we have jurisdiction to consider Ruiz’s threshold contention
that the IJ and BIA misinterpreted § 1229b(b)(2) to require proof of
physical abuse as a precondition to showing “extreme cruelty.” To
be sure, “part[ies] may not dress up a claim with legal or constitu-
tional clothing to invoke our jurisdiction.” Patel, 971 F.3d at 1272.
But Ruiz’s first argument—about “the meaning of a statutory
. . . provision”—presents a quintessential “question of law.” McFar-
lin v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir. 2004) (dis-
tinguishing purely legal questions from questions about “the appli-
cation of settled law to fact”).
Having said that, whether Ruiz’s particular case meets the
statutory standard is not a reviewable “question of law.” As we held
in Patel, “all eligibility determinations for the five enumerated cat-
egories of discretionary relief” in § 1252(a)(2)(B)(i) “are barred from
review.” 971 F.3d at 1279. Section 1229b is one of the five “enu-
merated categories of discretionary relief” that Patel described—it
provides that “the Attorney General may cancel removal” provided
that certain prerequisites are satisfied. 8 U.S.C. § 1229b(b)(2)(A)
(emphasis added). In Patel, we squarely rejected the petitioner’s
contention that eligibility determinations are necessarily reviewa-
ble questions of law. 971 F.3d at 1279. So too here, we lack juris-
diction to consider Ruiz’s fact-based contention that the circum-
stances of her case qualify her for relief under § 1229b(b)(2).
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22-10445 Opinion of the Court 9
Accordingly, we conclude that we have jurisdiction to con-
sider Ruiz’s purely legal challenge to the BIA’s interpretation of
§ 1229b(b)(2) but that we lack jurisdiction to decide her claim that
the facts of her case qualify her for discretionary relief.
III
We proceed, then, to consider Ruiz’s contention that the
BIA misinterpreted the phrase “extreme cruelty” in § 1229b(b)(2)
to require proof of physical abuse.
A
As an initial matter, the parties dispute whether the BIA so
construed the statute: Ruiz, of course, contends that it did; the gov-
ernment insists that it didn’t. Needless to say, if the government is
right, and in fact the BIA didn’t interpret the term “extreme cru-
elty” to require proof of physical abuse, then we needn’t consider
whether such an interpretation would be improper. For reasons
we will explain, though, we agree with Ruiz that the BIA’s decision
is best understood to impose the sort of physical-abuse prerequisite
about which she complains.
Because the BIA expressly “adopt[ed] and affirm[ed] the Im-
migration Judge’s decision,” we begin with the IJ’s opinion. See,
e.g., Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013)
(holding that when the BIA’s decision adopts the IJ’s, we review
both). It seems perfectly clear to us that the IJ imposed a physical-
abuse requirement. Here’s the key paragraph of the IJ’s opinion
once again, this time with our emphasis:
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10 Opinion of the Court 22-10445
Even taking into account Cristian’s testimony that Re-
spondent and Mr. Blanco would often fight after she
was diagnosed with cancer, and that he once heard
something break when they were fighting, there is still
no indication of physical violence or physical harm to Re-
spondent. Additionally, Respondent has failed to sub-
mit any documentary evidence that supports her con-
tention of abuse, aside from her own written state-
ment and a letter from a mental health counselor stat-
ing that she is attending psychotherapy sessions as of
July 2015 as “ordered” by the court and that she suf-
fers from posttraumatic stress disorder. Both of these
documents fail to indicate additional facts of physical
abuse or violent harm that would support Respondent’s
claims.
By its terms, the IJ’s opinion requires a petitioner to come forward
with proof of “physical violence,” “physical harm,” or “physical
abuse” in order to meet § 1229b(b)(2)’s “extreme cruelty” standard.
The BIA’s summary, 1½-page opinion leaves a lot to be de-
sired and, to boot, sends mixed messages regarding the meaning of
“extreme cruelty.” On the one hand, the BIA said that “[t]he pri-
mary issue . . . is that [Blanco] abandoned [Ruiz] once she became
ill,” refused to “support” her, “made hurtful comments to her,” and
“reject[ed] her when she was ill”—and that “this kind of abandon-
ment is not the type of treatment that we generally consider to be
‘extreme cruelty’ for purposes of the VAWA.” Those comments
might be understood to suggest that while non-physical, emotional
abuse can generally suffice to establish “extreme cruelty” within
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22-10445 Opinion of the Court 11
the meaning of § 1229b(b)(2), the particular mistreatment that Ruiz
suffered doesn’t qualify. On the other hand, though, the BIA cited
one of its earlier decisions referring to the “purpose of the
VAWA”—of which, again, § 1229b(b)(2)’s operative language was
part—as protecting “battered spouses.” That invocation would
seem to indicate a focus on physical abuse.
In any event, the BIA ultimately, and explicitly, “adopt[ed]
and affirm[ed]” the IJ’s decision—which, as we have explained,
clearly interpreted the term “extreme cruelty” to require a showing
of physical violence, harm, or abuse—and expressly “disagree[d]
that the Immigration Judge used the wrong standard.” Accord-
ingly, we conclude that the BIA’s opinion is best understood, like
the IJ’s opinion that it affirms, to require a showing of physical
abuse as a prerequisite to a finding of “extreme cruelty.”
B
We come, then, to the pivotal legal question that underlies
Ruiz’s petition: Is the term “extreme cruelty” in § 1229b(b)(2)
properly interpreted to require proof of physical violence and to
exclude mental or emotional abuse? And because we are reviewing
the BIA’s interpretation, we must first consider a threshold ques-
tion: Is the BIA’s reading of the statute entitled to deference, and,
if so, what kind?
1
In its brief to us, the government urged us to defer to the
BIA’s interpretation under Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837 (1984). As we pointed out to the parties
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12 Opinion of the Court 22-10445
in a pre-argument notice, however, the BIA’s decision in this case
is memorialized in a non-precedential single-member order. And
we have been clear that such an order merits Chevron deference only
when it “relie[s] on” existing federal-court or BIA precedent—and,
in turn, that such an order will be deemed to “rel[y] on” existing
precedent only when it is “actually dictated” or “compelled” by that
precedent. See Barton v. U.S. Att’y Gen., 904 F.3d 1294, 1302 n.5
(11th Cir. 2018) (citing Quinchia v. U.S. Att’y Gen., 552 F.3d 1255(11th Cir. 2008)), aff’d sub nom. Barton v. Barr, 140 S. Ct. 1442 (2020).
As already noted, the BIA’s order here does cite one of its
earlier decisions, as follows: “See Matter of A-M-, 25 I&N Dec. 66, 72
(BIA 2009) (explaining that ‘[a]ccording to the legislative history,
the purpose of the VAWA provisions amending the Act was to per-
mit battered spouses to leave their abusers without fear of depor-
tation or other immigration consequences.’).” The question for
Chevron purposes, therefore, is whether the BIA’s interpretation of
§ 1229b(b)(2) in this case was “actually dictated” or “compelled” by
Matter of A-M-. See Barton, 904 F.3d at 1302 n.5. It was not. Matter
of A-M- held (1) that lawful permanent residents are eligible for
§ 1229b(b)(2) relief but (2) that a woman who had already escaped
an abusive relationship didn’t qualify because VAWA’s “purpose”
was to “enable aliens to leave their abusive citizen or lawful per-
manent resident spouses who may use the threat of deportation or
sponsorship for an immigration benefit to maintain control over
them.” Matter of A-M-, 25 I. & N. Dec. at 76–78. As the government
has acknowledged, the issues there had little (if anything) to do
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22-10445 Opinion of the Court 13
with those here, and they certainly didn’t dictate or compel the
BIA’s decision in this case. 2
So, no Chevron deference. In Chevron’s absence, we review
the BIA’s decision through the lens of Skidmore v. Swift & Co., 323
U.S. 134 (1944), and “defer” to it only to the extent that it has the
“power to persuade.” Quinchia, 552 F.3d at 1259 (quoting Skidmore,
2 To its credit, when confronted at oral argument with Barton and Quinchia,
the government abandoned its contention that the BIA’s single-judge order in
this case warrants Chevron deference:
The Court: Do you think this single-member, unpublished
BIA opinion is entitled to Chevron deference?
Government: No, your Honor. As you discussed previously,
in order for a single-board-member decision to get Chevron def-
erence, that decision either needs to rely on a precedential
Board decision or a precedential Board decision [needs to be]
subsequently issued.
Court: So you acknowledge that the citation to Matter of A-M-
in the BIA’s decision is not reliance, as we described in Barton
and Quinchia—not good enough, and so we are out of Chevron
and into Skidmore.
Government: Correct, your Honor. Because while Matter of
A-M- supports the Board’s decision, it does not control or dic-
tate the outcome, which would be necessary for this case to
merit Chevron deference.
Oral Arg. at 13:30–14:25.
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14 Opinion of the Court 22-10445
323 U.S. at 140); accord Serrano v. U.S. Att’y Gen., 655 F.3d 1260, 1266
(11th Cir. 2011). 3
2
At last, therefore, the merits of the interpretive question.
For the reasons that follow, we find ourselves un-“persuade[d],” see
Skidmore, 323 U.S. at 140, by the BIA’s reading of § 1229b(b)(2) to
require proof of physical abuse as a prerequisite to “extreme cru-
elty.”
VAWA-era dictionary definitions4 demonstrate that the
term “cruelty” both (1) has an ordinary meaning that generally en-
tails both physical and mental abuse and (2) more specifically, is a
term of art in the family-law context that plainly encompasses both.
3 There is one loose Chevron-related end. The portion of the Immigration and
Nationality Act that includes § 1229b is subject to a general provision, 8 U.S.C.
§ 1103(a)(1), which states, in part, that “determination[s] and ruling[s] by the
Attorney General with respect to all questions of law shall be controlling.”
Although, on one reading, § 1103(a)(1) might appear on its face to embody a
freestanding rule of deference (or even obeisance) to BIA interpretations of
immigration-related statutes, in practice the provision has been cited only as a
basis for applying ordinary Chevron principles. See, e.g., Negusie v. Holder, 555
U.S. 511, 517 (2009); INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999); Amez-
cua-Preciado v. U.S. Att’y Gen., 943 F.3d 1337, 1341–42 (11th Cir. 2019). As we
have already explained—and as the government concedes—Chevron deference
doesn’t apply in this case, and no one has suggested that § 1103(a)(1) does an-
ything to change that. See Oral Arg. at 25:00–25:30 (government’s lawyer con-
ceding that § 1103(a)(1) doesn’t require deference independently of, or in ad-
dition to, Chevron).
4Congress enacted the Violence Against Women Act—and again, the lan-
guage later recodified in § 1229b(b)(2)—in 1994.
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22-10445 Opinion of the Court 15
Here, for instance, is how the Sixth Edition of Black’s defines “cru-
elty”:
The intentional and malicious infliction of physical or
mental suffering upon living creatures, particularly hu-
man beings; or, as applied to the latter, the wanton,
malicious, and unnecessary infliction of pain upon
the body, or the feelings and emotions; abusive treat-
ment; inhumanity; outrage. Chiefly used in the law
of divorce, in such phrases as “cruel and abusive treat-
ment,” “cruel and barbarous treatment,” or “cruel
and inhuman treatment.” In domestic relations, term
includes mental injury as well as physical.
Cruelty, Black’s Law Dictionary 377 (6th ed. 1990) (emphasis added)
(internal citations omitted). Webster’s Third says much the same
thing. As particularly relevant here, it defines the term “cruelty” to
mean the “[c]onduct of either party in a divorce action that endan-
gers the life or health of the other; also: acts that cause mental suffer-
ing or fear.” Cruelty, Webster’s Third New International Dictionary
186 (1981) (emphasis added).
Even more to the point, Black’s defines the full statutory
phrase “extreme cruelty” as a term of art that denotes a ground for
divorce and that specifically includes mental injury:
Extreme cruelty: As grounds for divorce, may consist
of personal injury or physical violence or it may be acts
or omissions of such character as to destroy peace of mind
or impair bodily or mental health of person upon whom in-
flicted or be such as to destroy the objects of matri-
mony.
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16 Opinion of the Court 22-10445
Extreme Cruelty, Black’s Law Dictionary, supra at 588 (emphasis
added).
The ordinary meaning of the term “cruelty” and the term-
of-art understanding of the phrase “extreme cruelty” not only cor-
roborate one another, but are also themselves corroborated by ev-
idence from the larger corpus juris. Ruiz, for instance, points to 8
C.F.R. § 204.2(c)(1)(vi). Although that regulation was promulgated
under different statutes, 8 U.S.C. §§ 1154 and 1255, it defines an al-
most identical phrase, “[b]attery or extreme cruelty.” Cf. Bedoya-
Melendez, 680 F.3d at 1326–28. It says, with our emphasis added—
For the purpose of this chapter, the phrase “was bat-
tered by or was the subject of extreme cruelty” in-
cludes, but is not limited to, being the victim of any
act or threatened act of violence, including any force-
ful detention, which results or threatens to result in
physical or mental injury. Psychological or sexual abuse
or exploitation, including rape, molestation, incest (if
the victim is a minor), or forced prostitution shall be
considered acts of violence.
8 C.F.R. § 204.2(c)(1)(vi). The regulation thus expressly defines the
phrase “was battered or was the subject of extreme cruelty” to in-
clude “act[s] of violence” and, in turn, expressly defines the phrase
“act[s] of violence” to include “[p]sychological . . . abuse.” Again,
§ 204.2(c)(1)(vi) applies by its terms only to the particular chapter
of the C.F.R. under which it was promulgated, but it confirms the
plain-language understanding of the term “extreme cruelty” as en-
compassing mental and emotional abuse.
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22-10445 Opinion of the Court 17
As does 42 U.S.C. § 608, even if from somewhat further
afield. That statute prescribes certain conditions regarding federal
grants to states providing welfare assistance to needy families. One
of its provisions generally prohibits a state from using federal funds
to assist a family for more than five years. Id. § 608(a)(7)(A). It
carves out an exception, though, for families that include an indi-
vidual who has been “battered or subjected to extreme cruelty.” Id.
§ 608(a)(7)(C)(i). The statute, in turn, expressly “define[s]” that
phrase to include not only “physical acts” that threaten or result in
“physical injury” but also, as relevant here, “mental abuse.” Id.
§ 608(a)(7)(C)(iii)(I)–(VI).
The evidence, we think—both textual and contextual—over-
whelmingly demonstrates that the term “extreme cruelty” is best
understood to include mental and emotional, as well as physical,
abuse. We therefore conclude that the BIA’s contrary interpreta-
tion is unpersuasive, undeserving of Skidmore deference, and erro-
neous.
IV
For the foregoing reasons, we agree with Ruiz—and hold—
that the BIA misinterpreted 8 U.S.C. § 1229b(b)(2). The term “ex-
treme cruelty” does not require a petitioning alien to prove that she
suffered physical abuse in order to qualify for discretionary cancel-
lation of removal; proof of mental or emotional abuse is sufficient
to satisfy the “extreme cruelty” prong of § 1229b(b)(2)’s five-prong
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18 Opinion of the Court 22-10445
standard. We therefore GRANT the petition in part and REMAND
to the BIA for further proceedings consistent with this opinion. 5
5 Because we lack jurisdiction to decide whether the facts of Ruiz’s particular
case satisfy the correct legal standard, we express no view on that question.
See supra at 9.
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22-10445 Newsom, J., Concurring 1
NEWSOM, Circuit Judge, concurring:
I’d like to briefly investigate the curious case of 8 U.S.C.
§ 1103(a)(1). As the majority opinion explains, see Maj. Op. at 14
n.3, that subsection—and in particular its concluding proviso
“[t]hat determination[s] and ruling[s] by the Attorney General with
respect to all questions of law shall be controlling”—has tradition-
ally been cited as support for the ho-hum proposition that princi-
ples of Chevron deference apply in immigration-related cases. See
INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (“It is clear that prin-
ciples of Chevron deference are applicable to this statutory scheme.
The INA provides that . . . the ‘determination and ruling by the At-
torney General with respect to all questions of law shall be control-
ling.’ 8 U.S.C. § 1103(a)(1) (1994 ed., Supp. III).”); accord, e.g., Ne-
gusie v. Holder, 555 U.S. 511, 517 (2009) (same). That, it seems to
me, is the one thing that § 1103(a)(1) almost certainly does not
mean. Let me explain.
Here’s § 1103(a)(1)’s full text:
(a) Secretary of Homeland Security
(1) The Secretary of Homeland Security shall be
charged with the administration and enforcement of
this chapter and all other laws relating to the immi-
gration and naturalization of aliens, except insofar as
this chapter or such laws relate to the powers, func-
tions, and duties conferred upon the President, Attor-
ney General, the Secretary of State, the officers of the
Department of State, or diplomatic or consular offic-
ers: Provided, however, That determination and ruling by
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2 Newsom, J., Concurring 22-10445
the Attorney General with respect to all questions of law
shall be controlling.
8 U.S.C. § 1103(a)(1) (emphasis added).
The way I see it, there are two plausible readings of
§ 1103(a)(1)’s proviso. First, it could mean that the Attorney Gen-
eral’s legal determinations are “controlling” vis-à-vis the other Ex-
ecutive Branch officials mentioned in § 1103(a)(1)—the President,
Secretary of State, diplomatic and consular officers, etc. On that
understanding, the proviso has nothing to say about—nothing to
do with—the question of how reviewing courts should treat the At-
torney General’s legal determinations. Second, the proviso could
(at least as a linguistic matter) mean that the Attorney General’s
legal determinations are “controlling” more generally—including
on the judiciary. For reasons I’ll explain, the former seems to me
the far more natural reading; the latter seems both strained and
quite likely unconstitutional.
I
Before we get there, though, what about the mushy-middle,
in-between interpretation that some of the Supreme Court’s cita-
tions would appear to suggest—i.e., that § 1103(a)(1)’s proviso is
just support (code, really) for the application of ordinary Chevron-
deference principles? That reading, I submit, is neither convincing
as a matter of semantics nor sensible in the larger scheme of admin-
istrative law.
As for language, here’s how Black’s defined the word “con-
trol” when § 1103(a)(1) was enacted: “To exercise restraining or
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22-10445 Newsom, J., Concurring 3
directing influence over. To regulate; restrain; dominate; curb; to
hold from action; overpower; counteract; govern.” Control, Black’s
Law Dictionary 329 (6th ed. 1990). That hardly describes the Chev-
ron inquiry. Under Chevron’s familiar framework, a reviewing court
must first decide whether a particular statute is ambiguous and
then, if it is, assess the agency’s interpretation to determine
whether it represents a “permissible,” “reasonable” reading—and
then, if it does, but only if it does, defer to it. See Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984).
Ultimately, the courts are in charge; they exercise “directing influ-
ence” over agencies, not the other way around. Not even the most
ardent Chevron enthusiast would contend that it requires a court
not just to defer to an agency’s interpretation, but to mindlessly
acquiesce in it.
Moreover, understood as a directive that reviewing courts
should give the Attorney General’s legal determinations ordinary
Chevron deference, § 1103(a)(1) is superfluous—effectively mean-
ingless. Presumably, the Board of Immigration Appeals—as the At-
torney General’s designee for immigration-related adjudications—
either is or isn’t entitled to Chevron deference to the same extent
that any other administrative agency is. But that’s a determination
made by reference to the usual administrative-law criteria—for ex-
ample, whether the agency has been either explicitly or implicitly
delegated authority to interpret a particular statute, see Chevron, 467
U.S. at 843–44, and whether the regulation or adjudication in ques-
tion has “the force of law,” United States v. Mead Corp., 533 U.S. 218,
231–32 (2001). And indeed, that’s exactly how the Supreme Court
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4 Newsom, J., Concurring 22-10445
has often approached the question of Chevron deference in immi-
gration-related cases—i.e., by diving right in, rather than pausing
to check the § 1101(a)(3) box. See, e.g., Mellouli v. Lynch, 575 U.S.
798 (2015) (declining to defer under Chevron to the BIA’s interpre-
tation of 8 U.S.C. § 1227(a)(2)(B)(i) without reference to
§ 1103(a)(1)); Scialabba v. Cuellar de Osorio, 573 U.S. 41 (2014) (defer-
ring under Chevron to the BIA’s interpretation of 8 U.S.C. § 1153without reference to § 1103(a)(1)). 1 The Court has bypassed
§ 1103(a)(1) for good reason—as I’ll explain next, whatever else it
is, § 1103(a)(1) is not an explicit (or even implicit) delegation of gen-
eral interpretive authority to the Attorney General or his designees
vis-à-vis the courts.
II
So we know—or, speaking only for myself, I think I know—
what § 1103(a)(1)’s proviso is not: It is not the one thing it has been
(vaguely) suggested to be. But what is it, then? Again, I think there
are two ways that one might possibly understand the proviso—one
more modest, the other much more robust. The proviso either
means—and means only—that the Attorney General’s
1 To be sure, in Negusie v. Holder, the Court said (in what has become an oft-
quoted dictum) that “[j]udicial deference in the immigration context is of spe-
cial importance, for executive officials ‘exercise especially sensitive political
functions that implicate questions of foreign relations.’” 555 U.S. at 517. Even
there, though, the Court applied only ordinary Chevron deference. See id. at
516–17. We have followed suit, quoting Negusie’s dictum while applying plain-
old Chevron principles. See, e.g., Edwards v. U.S. Att’y Gen., 56 F.4th 951, 962
(11th Cir. 2022).
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22-10445 Newsom, J., Concurring 5
“determination[s]” regarding “questions of law” are “controlling”
as against the other Executive Branch officials mentioned in
§ 1103(a)(1), or it means that the Attorney General’s legal determi-
nations are “controlling” more broadly, including on reviewing
courts.
The former, I submit, is the far better reading—more faith-
ful to § 1103(a)(1)’s text, context, and history. The latter is both less
defensible on its own terms and quite likely unconstitutional. I’ll
consider each possibility in turn.
A
Section 1103(a)(1)’s proviso is best understood, I submit, to
empower the Attorney General to make legal determinations that
are “controlling” vis-à-vis other Executive-Branch actors—but not
vis-à-vis the courts. I say so for at least three reasons.
First, and most importantly, that’s the best understanding of
§ 1103(a)(1) on its own terms. The provision opens by “charg[ing]”
the Secretary of Homeland Security with the duty to “administ[er]
and enforce[]” the Immigration and Nationality Act and all other
immigration- and naturalization-related laws, “except insofar as
[they] relate to the powers, functions, and duties” of other desig-
nated Executive-Branch officers—the President, Secretary of State,
diplomatic and consular officials, etc. The statute thus carves out
of the Secretary of Homeland Security’s general purview preroga-
tives that are reserved to other executive officials. All of these intra-
branch allocations, though, are subject to the subsection’s conclud-
ing proviso: “Provided, however, [t]hat determination and ruling by
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6 Newsom, J., Concurring 22-10445
the Attorney General with respect to all questions of law shall be
controlling.” The upshot seems clear: As against the various Ex-
ecutive Branch officers who might play a role in the administration
of the country’s immigration laws, the Attorney General may
make “determination[s]” regarding “questions of law” that are
“controlling”—i.e., binding on those officers.
Second, the context in which § 1103(a)(1) is situated con-
firms that plain-meaning interpretation. Nearly every subsection
that follows § 1103(a)(1) explains the circumstances in which the
Secretary of Homeland Security may delegate his powers to, or
otherwise arrange duties among, officials within the Executive
Branch. See, e.g., 8 U.S.C. § 1103(a)(4) (giving the Secretary the abil-
ity to “require or authorize any employee of the [Immigration] Ser-
vice or the Department of Justice” to perform any of the Secretary’s
duties); id. § 1103(a)(6) (authorizing similar delegation to “any em-
ployee of the United States, with the consent of the head of the
Department”); id. § 1103(a)(7)–(9) (empowering the Secretary to
“establish offices” for immigration enforcement in foreign coun-
tries “with the concurrence of the Secretary of State,” station for-
eign countries’ officers in the United States to enforce their immi-
gration laws, and make reciprocal agreements with foreign coun-
tries to these effects); cf. also, e.g., id. § 1103(a)(10) (authorizing the
Attorney General to delegate his powers to “any State or local law
enforcement officer,” with the “consent” of his or her supervising
entity, to address “an actual or imminent mass influx of aliens ar-
riving” at the border). Put simply, § 1103(a)(1)’s statutory neigh-
bors seem to underscore that the entire section’s thrust is allocating
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22-10445 Newsom, J., Concurring 7
functions within the Executive Branch and among its various of-
fices and officers.
Finally, § 1103(a)(1)’s unique history suggests the very same
thing. Congress amended § 1103 in 2003, just a year after creating
the Department of Homeland Security. See Homeland Security
Act Amendments of 2003, Pub. L. No. 108–7, § 1102(2), 117 Stat.
526, 531 (West); History, Dep’t of Homeland Security, https://
www.dhs.gov/history (2022). It made two notable alterations.
Section 1103(a)(1) was kept exactly as-was, save for one change: To
reflect that the head of the newly created Department would as-
sume principal responsibility for administering the country’s immi-
gration laws, Congress replaced the words (and office) “Attorney
General” with the words (and office) “Secretary of Homeland Se-
curity” in both the title and the prefatory clause:
(a) Attorney General Secretary of Homeland Se-
curity
The Attorney General Secretary of Homeland Se-
curity shall be charged with the administration
and enforcement of this chapter and all other laws
relating to the immigration and naturalization of
aliens, except insofar as this chapter or such laws
relate to the powers, functions, and duties con-
ferred upon the President, the Secretary of State,
the officers of the Department of State, or diplo-
matic or consular officers: Provided, however, That
determination and ruling by the Attorney General
with respect to all questions of law shall be con-
trolling.
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8 Newsom, J., Concurring 22-10445
Id. See 8 U.S.C. § 1103(a)(1).
In conjunction with its establishment of the Department of
Homeland Security and its revision of § 1103(a)(1), Congress also
enacted a new subsection, § 1103(g), which remains in the statute
today:
(g) Attorney General
(1) In general
The Attorney General shall have such authorities
and functions under this chapter and all other laws
relating to the immigration and naturalization of
aliens as were exercised by the Executive Office for
Immigration Review, or by the Attorney General
with respect to the Executive Office for Immigra-
tion Review, on the day before the effective date of
the Immigration Reform, Accountability and Se-
curity Enhancement Act of 2002.
Id. § 1103(g)(1). See Homeland Security Act of 2002, Pub. L. 107-
296, § 1102, 116 Stat. 2135, 2274.
So, when Congress created DHS, amended § 1103(a)(1) to
specify the respective roles of (among others) the Secretary of
Homeland Security and the Attorney General, and added § 1103(g),
it specified that the Attorney General’s “authorities and func-
tions”—presumably including his authority to issue “controlling”
legal determinations—extended only as far as the Executive Office
for Immigration Review’s authority had previously reached. Be-
fore 2002, as today, the EOIR included the Immigration Judges and
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22-10445 Newsom, J., Concurring 9
the Board of Immigration Appeals. See About the Office, U.S. D.O.J.,
https://www.justice.gov/eoir/about-office (2022). The BIA’s le-
gal determinations did not then and do not now “control[]”judicial
interpretations; rather, as today’s majority opinion explains, the
courts review the IJs’ and BIA’s legal decisions, as appropriate, un-
der the various deference regimes. See Maj. Op. at 11–14. So, if the
Attorney General has “such authorities and functions” as the EOIR,
which includes the IJs and the BIA, and those administrative enti-
ties don’t “[]”control court dispositions, then neither does the At-
torney General. Reading § 1103(a)(1) to vest the Attorney Gen-
eral’s legal determinations with “controlling” force vis-à-vis the
courts would flatly contravene § 1103(g).
In sum, § 1103(a)(1)’s plain text, the statutory context in
which it’s situated, and its unique history all counsel the same con-
clusion: The statute empowers the Attorney General to render
“determination[s]” on “questions of law” that are “controlling” as
against other Executive Branch officials. But it says nothing
about—and has nothing to do with—the weight that the Attorney
General’s legal determinations are due in court.
B
On a contrary reading, § 1103(a)(1)’s proviso purports to
make the Attorney General’s legal determinations “controlling” as
a general matter—including on reviewing courts. That far more
sweeping construction, while linguistically plausible—and
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10 Newsom, J., Concurring 22-10445
perhaps (?) even suggested in Supreme Court dicta 2—suffers from
two significant problems. Initially, as a matter of pure statutory
interpretation, it wrenches the proviso out of context and thereby
elevates literalism over proper textualism. See, e.g., Bostock v. Clay-
ton Cnty., 140 S. Ct. 1731, 1825 (2020) (Kavanaugh, J., dissenting)
(“As Justice Scalia explained, ‘the good textualist is not a literalist.’”
(quoting Antonin Scalia, A Matter of Interpretation 24 (1997))).
Moreover, so reading § 1103(a)(1) would almost certainly render it
unconstitutional. I say that for several related reasons.
First, and most obviously, for more than 200 years now, it
has been “emphatically the province and duty of the judicial de-
partment to say what the law is.” Marbury v. Madison, 5 U.S. (1
Cranch) 137, 177 (1803). No need to gild that lily: A reading of
§ 1103(a)(1) that would make the Attorney General’s legal determi-
nations “controlling” on reviewing courts would impermissibly di-
vest the judiciary of its authority to “say what the law is”—and, in
the doing, lodge that power in the executive. And it should go
without saying that Congress can’t mend that separation-of-pow-
ers breach simply by waving a wand and purporting to vest binding
interpretive authority in the Executive Branch. In fact, to do so
would be to commit the sin of Hayburn’s Case, only in reverse.
There, the Court held that Congress couldn’t imbue judicial offic-
ers with executive authority because “neither the legislative nor
the executive branches, can constitutionally assign to the judicial
any duties, but such as are properly judicial, and to be performed
2 See, e.g., Negusie, 555 U.S. at 516–17; see also supra note 1.
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22-10445 Newsom, J., Concurring 11
in a judicial manner.” 2 U.S. (2 Dall.) 408, 410 (1792). In so holding,
the Court explained that “the legislative, executive and judicial de-
partments are each formed in a separate and independent manner
. . . .” Id. Infusing the Executive Branch with judicial authority—
as § 1103(a)(1) would if it made the Attorney General’s legal deter-
minations of law binding on courts—would be no less unconstitu-
tional.
Second, giving the Attorney General’s legal determinations
“controlling” force vis-à-vis reviewing courts would transgress the
limits that Article III places on the activities of so-called non-Article-
III tribunals. In Stern v. Marshall, for instance, the Supreme Court
emphasized that “Article III could neither serve its purpose . . . nor
preserve the integrity of judicial decisionmaking if the other
branches of the Federal Government could confer the Govern-
ment’s ‘judicial Power’ on entities outside Article III.” 564 U.S. 462,
484 (2011); see also id. at 483 (“[T]here is no liberty if the power of
judging be not separated from the legislative and executive pow-
ers.”) (quoting The Federalist No. 78, at 466 (Alexander Hamilton)
(Clinton Rossiter, ed. 1961)). Indeed, in Stern, the Court invali-
dated a bankruptcy court’s exercise of jurisdiction even though its
decision was subject to “ordinary appellate review” by Article III
courts. Id. at 494 (quoting Thomas v. Carbide, 473 U.S. 568, 584
(1985)). Needless to say, an interpretation of § 1103(a)(1) that ac-
corded the Attorney General’s legal determinations “controlling”
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12 Newsom, J., Concurring 22-10445
weight in court wouldn’t allow for anything approaching—indeed,
would positively thwart—“ordinary appellate review.” 3
Finally, reading § 1103(a)(1) to give the Attorney General’s
determinations of law “controlling” force vis-à-vis courts would ex-
acerbate already-existing concerns about unlawful delegations of
judicial power. As matters stand, even ordinary Chevron deference
is on thin non-delegation ice. See Gundy v. United States, 139 S. Ct.
2116, 2131–48 (Gorsuch, J., dissenting). If Executive Branch actors
were freed from the obligation to provide even a “reasonable” in-
terpretation to get their way, that ice would surely break.
* * *
Section 1103(a)(1) is something of a mystery to me. The Su-
preme Court has invoked it as a warrant for applying Chevron-def-
erence principles in immigration-related cases—but for reasons
I’ve explained, I don’t think that’s a particularly good fit. Read (hy-
per)literally, § 1103(a)(1)’s proviso might seem to make the Attor-
ney General’s determinations of law “controlling” in some sort of
general, absolute sense—but as I’ve said, I don’t think that can pos-
sibly be right. By far the best understanding of § 1103(a)(1), it
3This lack of Article III supervision would be particularly pronounced—and
problematic—in cases involving questions about citizenship. Section
1103(a)(1) applies to Chapter 12 of Title 8, which contains subchapters con-
cerning nationality and naturalization. E.g., 8 U.S.C. § 1422 (“Eligibility for
naturalization”); id. § 1435 (“Former citizens regaining citizenship”). The Su-
preme Court has held that citizenship claims are constitutional questions that
must be adjudicated by Article III courts, not agencies. See Ng Fung Ho v. White,
259 U.S. 276, 284–85 (1922).
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22-10445 Newsom, J., Concurring 13
seems to me, is that it really has nothing to do with the weight or
deference that reviewing courts should give to the Attorney Gen-
eral’s legal determinations. Instead, it simply divides immigration-
related labor among various Executive Branch officials and, as be-
tween them—and them only—authorizes the Attorney General to
make binding legal determinations. That’s all.
The real problem is that no one really knows what
§ 1103(a)(1) means—or, to be more precise, the Supreme Court
(even while invoking it) has never really told us what it means. I,
for one, would welcome the explanation.