July 18, 2019

Tenth Circuit: Agency Decision Presumed to Apply Prospectively Only

The Tenth Circuit Court of Appeals issued its opinion in De Niz Robles v. Lynch on Tuesday, October 20, 2015.

Alfonzo De Niz Robles filed a petition for adjustment of status in 2007, relying on the Tenth Circuit’s opinion in Padilla-Caldera v. Gonzales (Padilla Caldera I), 426 F.3d 1294, 1300-01 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237, 1244 (10th Cir. 2006), which held that 8 U.S.C. §§ 1255(i)(2)(A) allowed the Attorney General discretion in affording relief from removability under § 1182(a)(9)(C)(i)(I). After De Niz Robles filed his petition, the BIA issued In re Briones, 24 I. & N. Dec. 355 (BIA 2007), which overturned the Tenth Circuit’s decision in Padilla Caldera I. In 2013, the BIA ruled that De Niz Robles was categorically ineligible for relief due to its Briones decision, which it applied retroactively. De Niz Robles appealed to the Tenth Circuit.

Applying the Chevron test and guided by the Supreme Court’s ruling in National Cable & Telecommunications Ass’n v. Brand X Internet Services (Brand X), 545 U.S. 967 (2005), the Tenth Circuit determined it was required to decide whether Briones could reasonably apply retroactively, thereby overruling Tenth Circuit precedent. The Tenth Circuit analyzed the separation of powers doctrine, noting that judicial decisions are presumed to apply retroactively due to the impartial nature of the judiciary, whereas Congressional rule-making is presumably prospective only unless otherwise specifically stated. Because administrative rulemaking is a delegation of Congressional power, the Tenth Circuit found that administrative rules are presumptively prospective in application. However, when confronted with a situation where an administrative agency acts in a quasi-judicial capacity, such as the BIA did in Briones, the Tenth Circuit examined whether the administrative action is more akin to judicial function or legislative function.

The Tenth Circuit determined that, in applying its rules pursuant to a Congressional delegation of power, the BIA was acting in a quasi-legislative capacity. Examining due process and equal protection concerns, the Tenth Circuit determined it would contravene Supreme Court precedent and constitutional safeguards to allow the BIA’s decision to be applied retroactively. The Tenth Circuit therefore overturned the BIA’s refusal to consider De Niz Robles’ petition. The Tenth Circuit noted that at the time De Niz Robles filed his petition, Padilla Caldera I was the existing circuit precedent, and he was justified in his reliance on that precedent. The BIA argued that De Niz Robles should have understood that there was a conflict between § 1255 and § 1182, and that there was a chance the conflict would be resolved against De Niz Robles’ position. The Tenth Circuit found that approach illogical, noting that a litigant is justified in relying on the law at the time a petition is filed.

The Tenth Circuit remanded to the BIA for further proceedings consistent with its opinion.

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