Academic journal article Harvard Law Review

Administrative Law - Chevron and Brand X - Tenth Circuit Holds That Certain Agency Interpretations Have No Legal Effect until Courts Approve - Gutierrez-Brizuela V. Lynch

Academic journal article Harvard Law Review

Administrative Law - Chevron and Brand X - Tenth Circuit Holds That Certain Agency Interpretations Have No Legal Effect until Courts Approve - Gutierrez-Brizuela V. Lynch

Article excerpt

ADMINISTRATIVE LAW--CHEVRON AND BRAND X--TENTH CIRCUIT HOLDS THAT CERTAIN AGENCY INTERPRETATIONS HAVE NO LEGAL EFFECT UNTIL COURTS APPROVE.--Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016).

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., (1) the Supreme Court held that an agency's interpretation of a statute it administers should prevail if the statute is ambiguous and the agency's interpretation is reasonable. (2) In National Cable & Telecommunications Ass'n v. Brand X Internet Services, (3) the Court went a step further and held that, if the Chevron two-step is satisfied, an agency's interpretation should prevail even when a court has adopted a contrary interpretation in the past. (4) In effect, then, Brand X permits agencies to overrule courts when the circumstances are right. This fact invites a question: in a Brand X case, when does an agency's interpretation displace a court's and become the applicable law? Recently, in Gutierrez-Brizuela v. Lynch, (5) the Tenth Circuit decided that an agency's interpretation must wait for a court's say-so--that an agency's interpretation is not "legally effective" until a court, in deference to the agency, overrules itself. (6) But the Tenth Circuit's decision invites its own questions. The most basic, perhaps, is whether the court's position is tenable, even by its own lights. Put simply, the problem is that the court's premises appear to be at odds with its conclusion. Because the court's opinion does not resolve this tension, Gutierrez-Brizuela rests on unsecured foundations.

Gutierrez-Brizuela starts with two hard-to-reconcile provisions of U.S. immigration law. The first, in 8 U.S.C. [section] 1255, implies that certain people who have illegally reentered the United States can gain lawful residency at any time, provided that the Attorney General grants them adjusted status. (7) But the second, in 8 U.S.C. [section] 1182, states that these same people can't gain lawful residency unless they first leave the country and wait ten years. (8) In 2006, in Padilla-Caldera v. Gonzales (9) (Padilla-Caldera I), the Tenth Circuit attempted to reconcile these provisions. It held that the Attorney General could grant adjusted status to people who would otherwise have to wait. (10) In 2007, however, the Board of Immigration Appeals (BIA) considered the question in In re Briones (11) and reached the opposite conclusion. (12) In 2011, in Padilla-Caldera v. Holder (13) (Padilla-Caldera II), the Tenth Circuit considered the question again. This time, the Tenth Circuit held that the BIA's decision in Briones was entitled to Chevron deference, and, invoking Brand X, the court adopted the Briones rule and overruled Padilla-Caldera I. (14)

As this legal backdrop moved into place, Hugo Gutierrez-Brizuela, a native and citizen of Mexico, found himself forced to choose between these paths to lawful residency. (15) In 2009--after the BIA's ruling in Briones but before the Tenth Circuit's in Padilla-Caldera II-Gutierrez-Brizuela sought adjusted status. (16) Then he waited. Finally, in 2013, an immigration judge pretermitted his application for adjustment of status. (17) Gutierrez-Brizuela appealed that decision to the BIA, which dismissed his appeal. (18) The BIA concluded that the Briones rule governed GutierrezBrizuela's application, and that he was therefore ineligible for adjustment of status. (19) The BIA rejected Gutierrez-Brizuela's argument that this was an impermissible retroactive application of Padilla-Caldera II. (20) Gutierrez-Brizuela petitioned the Tenth Circuit for review.

The Tenth Circuit granted Gutierrez-Brizuela's petition for review and remanded the case to the BIA. (21) Writing for the panel, Judge Gorsuch (22) held that Gutierrez-Brizuela was eligible for adjustment of status because Padilla-Caldera I, not Briones or Padilla-Caldera II, governed his 2009 application for adjusted status. (23) Judge Gorsuch explained that De Niz Robles v. …

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