BRAND X IN IMMIGRATION CASES

ARCHIVED ISSUE PAGE (LAST UPDATED JULY 2012)

The Supreme Court's Brand X decision allows agencies to offer an interpretation of a statute that differs from a published circuit court decision. An agency may do so, however, only where the underlying statute is ambiguous. This Litigation Issue Page provides an overview of the Supreme Court's holding and identifies circuit court immigration decisions that have applied Brand X and immigration agency decisions that have addressed Brand X.

What is Brand X?|Application of Brand X in Circuit Court Immigration Cases|Discussion of Brand X in Agency Cases and Rules|Court Remands and Brand X

What is Brand X?

Brand X is a Supreme Court decision that deals with whether the courts must defer to an agency interpretation of a statute that conflicts with a circuit court's prior interpretation of a statute. The full case name and citation is National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005). According to Brand X, in limited circumstances, an agency may disagree with a circuit court decision and offer a different interpretation of a statute. However, it may do so only where the statute is ambiguous. In a situation where the court of appeals' decision is based on the unambiguous reading of the statute (decided under step I of the Chevron analysis), an agency interpretation that is contrary to a prior circuit court decision will not trump the circuit decision in that circuit.

Case Summary of Brand X: Petitioners sought review of a March 2002 FCC declaratory ruling that broadband cable modem service was an "information service," not a "telecommunications service," and as such, was not subject to mandatory common carrier regulation under the Telecommunications Act [47 USC §151 et. seq.]. The Ninth Circuit Court of Appeals, relying on the precedential effect of an earlier Ninth Circuit case, vacated the FCC ruling that cable modem service was not a "telecommunications service." See AT&T Corp. v. Portland, 216 F.3d 871 (9th Cir. 2000). On certiorari, the Supreme Court reversed and remanded. The Court found that instead of following its own precedent, the Ninth Circuit should have applied the deferential framework set forth in Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984). Under Chevron, ambiguities in statutes administered under an agency's jurisdiction are to be interpreted by the agency and given deference by the federal courts as long as they are reasonable. 467 U.S. at 843-44.

The Court held that where an agency's construction is otherwise entitled to Chevron deference, a court's prior interpretation will trump the agency's interpretation only if the prior court decision was based on an unambiguous reading of the statute. In Portland, the Ninth Circuit concluded that the "best" reading of the statute was that cable modem service was a "telecommunications service," not that the only permissible reading of the Communications Act was that cable modem service was a "telecommunications service." Therefore, the Court held that the Ninth Circuit erred in refusing to apply Chevron. The Court went on to find the term "telecommunications service" ambiguous under the statute and concluded that the FCC's construction was a reasonable policy decision permissible under Chevron.

Application of Brand X in Circuit Court Immigration Cases

In the following cases, the court held that Brand X does not mandate deference to a subsequent agency interpretation that is contrary to circuit law.

Irigoyen-Briones v. Holder, 644 F.3d 943 (9th Cir. 2011).

• Agency Interpretation: Matter of Liadov, 23 I&N Dec. 990 (BIA 2006).
• Prior Circuit Court Decision: Oh v. Gonzales, 406 F.3d 611 (9th Cir. 2005).
• Issue: Whether the thirty-day filing deadline for filing a notice of appeal with the BIA is jurisdictional and thus not subject to equitable exceptions.
• Note: The court concluded that “[t]here is no ambiguous statute that would entitle the agency to deference under Brand X and Chevron, just an administrative claim-processing rule that must be treated as non-jurisdictional.”

Jean-Louis v. Att’y Gen., 582 F.3d 462 (3d Cir. 2009)

• Attorney General Interpretation: Matter of Silva-Trevino, 24 I&N Dec. 687 (BIA 2008).
• Prior Circuit Court Decision: DeLeon-Reynoso v. Ashcroft, 293 F.3d 633 (3d Cir. 2002).
• Issue: Whether an immigration judge may look beyond the record of conviction to determine whether the crime is a crime involving moral turpitude..
• Note: The court found that its prior precedent compelled the conclusion that an immigration judge should look to the statutory elements of a state law conviction only, not the alien’s specific conduct, for the purpose of determining whether a conviction is a crime involving moral turpitude. The court held that the Attorney General’s contrary ruling could not be upheld because Brand X does not permit an agency to adopt an interpretation which the circuit court already rejected as “unreasonable.”

In the following cases, the courts applied Brand X and deferred to a subsequent agency interpretation of the statute despite governing circuit case law.

Garfias-Rodriguez v. Holder, 649 F.3d 942 (9th Cir. 2011) reh’g en banc granted, 672 F.3d 1125 (9th Cir. 2012).

• Agency Interpretation: Matter of Briones, 24 I&N Dec. 355 (BIA 2007).
• Prior Circuit Court Decision: Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006).
• Issue: Whether a noncitizen who is inadmissible under INA §212(a)(9)(C)(i)(I) (reentered after unlawfully present in the United States for more than one year) is eligible for adjustment of status under INA §245(i).
• Note: On rehearing, the en banc court is considering both the merits of the case as well as whether the panel’s decision (if upheld) applies retroactively.  The en banc court heard oral arguments on June 20, 2012.

Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. 2010).

• Agency Interpretation: Matter of N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007).
• Prior Circuit Court Decision: Morales v. Gonzales, 578 F.3d 972 (9th Cir. 2007).
• Issue: Whether an IJ can consider evidence outside the record of conviction to determine whether an offense constitutes a “particularly serious crime” under INA § 241(b)(3)(B)(ii).

Ali v. Mukasey, 521 F.3d 737 (7th Cir. 2008)

• Agency Interpretation: Matter of Babaisakov, 24 I&N Dec. 306 (2007)
• Prior Circuit Court Decision: Hashish v. Gonzales, 442 F.3d 572 (7th Cir. 2006) and Padilla v. Gonzales, 397 F.3d 1016 (7th Cir. 2005)
• Issue: Whether IJ/BIA may consider evidence beyond the charging document and record of conviction when determining whether a conviction constitutes a crime involving moral turpitude.

Zhang v. Mukasey, 543 F.3d 851 (6th Cir. 2008)

• Agency Interpretation: Matter of C-W-L-, 24 I&N Dec. 346 (BIA 2007)
• Prior Circuit Court Decision: Haddad v. Gonzales, 437 F.3d 515 (6th Cir. 2006)
• Issue: Whether a noncitizen under a final order of removal is barred from filing a second application for asylum independent of a motion to reopen the removal proceedings.
• Note: The court found that Haddad was not directly on point, but also stated that, even if it had meant to rule directly on the issue, under Brand X, the court must now defer to the BIA's contrary ruling because the statutory language is ambiguous.

Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008)

• Agency Interpretation: 8 C.F.R. §241.14 (interim rule published in Continued Detention of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56,967 (Nov. 14, 2001))
• Prior Court Decisions: Zadvydas v. Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S. 371 (2005)
• Issue: whether the Supreme Court's decisions construing INA § 241(a)(6), which addresses detention beyond the 90-day removal period, foreclosed the BIA's contrary interpretation of this provision in subsequent regulations.
• Note: The Tenth Circuit framed the issue as strictly a Brand X one and held that Brand X applies even where the conflicting court decision is from the Supreme Court. There is an argument that the court erred in treating this as strictly a Brand X issue. Arguably, the agency regulations at issue are not directly contrary to the Supreme Court's holdings, but rather a further interpretation of the statute in light of the constitutional limitations raised by the Supreme Court.

Fernandez v. Keisler, 502 F.3d 337 (4th Cir. 2007)

• Agency Interpretation: Matter of Navas-Acosta, 23 I&N Dec. 586 (BIA 2003).
• Prior Circuit Court Decision: United States v. Morin, 80 F.3d 124 (4th Cir. 1996).
• Issue: Whether a lawful permanent resident who had applied for U.S. citizenship had demonstrated "permanent allegiance to the United States" and is a U.S. national under INA § 101(a)(22).
• Note: One judge dissented, noting that Brand X governs only if deference under Chevron applies. The dissent explained that every court that has reached the question has held, either explicitly or implicitly, that Chevron does not apply to the BIA's interpretation of INA §101(a)(22). See, e.g., Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir. 2004); Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (9th Cir. 2003); Sebastian-Soler v. United States AG, 409 F.3d 1280 (11th Cir. 2005) (per curiam). See also Dragenice v. Gonzales, 470 F.3d 183, 187-89 (4th Cir. 2006).

Duran Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007)

• Agency Interpretation: Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006)
• Prior Circuit Court Decision: Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004)
• Issue: Whether a previously removed person unlawfully present in the U.S. (INA § 212(a)(9)(C)(i)(II)) may adjust status under §245(i) provided that he or she file an I-212 waiver prior to the initiation of reinstatement proceedings.
• Note: The 9th Circuit held that this case correctly followed Torres-Garcia based on Brand X and the opinion applies retroactively as well as prospectively.  Duran Gonzales v. DHS, 659 F.3d 930 (9th Cir. 2011).

Discussion of Brand X in Agency Cases and Rules

Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)

• Conflicting Circuit Court Decision: Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006)
• Issue: Whether adjustment of status under INA §245(i) is available to a person who is inadmissible under INA §212(a)(9)(C)(i)(I) for reentering or attempting to reenter the U.S. without being admitted following an aggregate period of more than one year of unlawful presence.
• Note: In an earlier decision, Matter of Briones, the BIA held that adjustment of status is not available to a person who is inadmissible for reentering or attempting to reenter without inspection pursuant to INA §212(a)(9)(C)(i)(I). Matter of Briones, however, arose in the 5th Circuit and so there was no direct conflict with case law. Here, the court found that it was not bound by the Ninth Circuit’s contrary holding in Acosta because that case was substantially undermined by Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007). The court commented that the Ninth Circuit would likely give deference to Briones, as the Second, Sixth and Seventh Circuits already have, if the issue were appealed.

Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008)

• Conflicting Circuit Court Decisions: Various aspects of the decision arguably conflict with numerous circuit court decisions.
• Issue: What analysis should the IJ/BIA employ in determining whether a criminal court conviction qualifies as a crime involving moral turpitude. The decision addresses the application and applicability of the categorical approach and what evidence the IJ and BIA may consider in making a CIMT determination.

Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008)

• Conflicting Circuit Court Decisions: Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007); Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007); William v. Gonzales, 499 F.3d 329 (4th Cir. 2007)
• Issue: Whether the BIA has the authority to reopen removal, deportation or exclusion proceedings if the noncitizen has departed the U.S. after those proceedings were completed.
• Note: Although this case arose in the Fifth Circuit, the BIA said it would not follow Lin and Reynoso-Cisneros even in the Ninth Circuit. However, the BIA stated that it would follow William in cases arising within the Fourth Circuit. In William, the court held that the motion to reopen statute is unambiguous and therefore, under Brand X, the BIA's contrary reading of the statute would not trump the circuit decision.

Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008)

• Conflicting Circuit Court Decision: Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2007)
• Issue: Whether a parent's period of residence can be imputed to a child for purposes of calculating the seven years of continuous residence necessary for cancellation of removal under INA §240A(a)(2).
• Note: This case arose in the Ninth Circuit and the BIA held that it would apply its interpretation of the statute to cases arising both in and out of the Ninth Circuit, thus declining to follow Cuevas-Gaspar. Subsequently, in Mercado-Zazueta v. Holder (discussed above), the Ninth Circuit rejected the BIA’s contention that Matter of Ramirez trumps circuit law and said that Cuevas-Gaspar continues to govern in the Ninth Circuit.

Matter of Briones, 24 I&N Dec. 355 (BIA 2007)

• Conflicting Circuit Court Decisions: Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006), and Padilla-Caldera v. Gonzales, 453 F.3d 1237 (10th Cir. 2005)
• Issue: Whether adjustment of status under INA §245(i) is available to a person who is inadmissible under INA §212(a)(9)(C)(i)(I) for reentering or attempting to reenter the U.S. without being admitted following an aggregate period of more than one year of unlawful presence.
• Note: This case arose in the Fifth Circuit. Because of that, the BIA stated that it need not decide whether, in light of Brand X, it would apply its holding to subsequent cases arising in Ninth and Tenth Circuits.

Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007)

• Conflicting Circuit Court Decision: Alaka v. Att'y Gen., 456 F.3d 88 (3d Cir. 2006)
• Issue: Whether an offense must be an aggravated felony as defined by INA §101(a)(43) to be considered a "particularly serious crime" for purposes of withholding of removal under INA §241(b)(3)(B)(ii).
• Note: This case arose in the Tenth Circuit. Because of that, the BIA stated that it need not decide whether, in light of Brand X, it would follow Alaka in subsequent cases arising in the Third Circuit.

Voluntary Departure: Effect of a Motion to Reopen or Reconsider or a Petition for Review, 72 Fed. Reg. 67674 (proposed Nov. 30, 2007) (to be codified at 8 CFR pts. 1240 and 1241)

• Conflicting Circuit Court Decisions: Kanivets v. Gonzales, 424 F.3d 330, 331 (3d Cir. 2005); Sidikhouya v. Gonzales, 407 F.3d 950, 952 (8th Cir. 2005); Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir. 2005); Ugokwe v. United States Att'y Gen., 453 F.3d 1325, 1331 (11th Cir. 2006); Barroso v. Gonzales, 429 F.3d 1195 (9th Cir. 2005)
• Issue: Proposed amendment to the voluntary departure regulations such that the filing of a motion to reopen or reconsider, or a petition for review prior to the expiration of a voluntary departure period granted by the IJ or BIA, would have the effect of automatically terminating the grant of voluntary departure.
• Note: The preamble to the proposed rule cites Brand X and states that DOJ is not bound by the circuit court cases, cited above, which hold that a motion to reopen or reconsider filed prior to expiration of the voluntary departure period automatically tolls the voluntary departure period. See 72 Fed. Reg. at 67678. Subsequent to issuance of this proposed regulation, the Supreme Court, in Dada v. Mukasey, 128 S. Ct. 2307 (U.S. 2008), overruled these decisions.

Court Remands and Brand X

The Supreme Court and the Second Circuit have cited Brand X in support of remands in cases that involve an ambiguous statute which the BIA has not interpreted.

Negusie v. Holder, 129 U.S. 1159 (2009)

• Issue: Whether the persecutor bar to asylum applies even if a person's assistance in persecution is coerced or the product of duress.
• Note: After reviewing BIA cases on the issue, the Court concluded that the BIA "ha[d] not yet exercised Chevron discretion to interpret the statute in question," but instead had applied a Supreme Court case which it believed was controlling. The Court found that this case was not controlling and, citing Brand X, remanded for the BIA to interpret the persecutor bar provision in the first instance. In his partial concurrence and partial dissent, Justice Stevens posited that it was the Court's job to determine first whether the bar applied to persecution carried out under duress, as a matter of "pure statutory construction." If the Court found that it did not, then courts should defer to the BIA's determination of what circumstances established duress or coercion in individual cases.

Ucelo-Gomez v. Gonzales, 464 F.3d 163 (2d Cir. 2006)

• Issue: Whether affluent Guatemalans constitute a "particular social group" under INA §101(a)(42)(A) for purposes of asylum.
• Note: The court noted that the BIA's guidance on what constitutes a "social group" was general and "insufficient to meet the purposes of appellate review." The court explained that under Brand X, a precedential BIA opinion on the matter will be granted deference "assuming the basic requirements of Chevron are met." However, the court emphasized that it did not intend to adopt a per se rule, and that if the court "can state with assured confidence …. that a group would or would not under any reasonable scenario qualify as a 'particular social group,' [the court] need not remand, and may rule on the issue in the first instance."

Liu v. DOJ, 455 F.3d 106 (2d Cir. 2006)

• Issue: What are the standards for deciding whether an asylum application is frivolous under the INA?
• Note: The court remanded the case to give the BIA the opportunity in the first instance to formulate such standards. The court noted the dearth of case law on the issue and concluded that without a set of standards it could not reasonably ascertain the proper outcome in this case. Citing Brand X, the court found that the complete lack of Second Circuit case law on the subject of frivolousness made remand to the BIA desirable because the lack of case law eliminates any "concern that our decision to [remand] (a) would countermand the approach taken in binding circuit precedent, or (b) would create needless conflict between circuit holdings and agency law."

Mirzoyan v. Gonzales, 457 F.3d 217 (2d Cir. 2006)

• Issue: What the standard is for finding economic persecution in an asylum case.

Note: The court remanded to the BIA for clarification of a governing standard for economic persecution claims because, in past cases, the BIA neglected to apply a consistent standard. In a footnote, the court noted that in Guan Shan Liao v. DOJ, 293 F.3d 61 (2d Cir. 2002), the court addressed "for purposes of completeness" an economic persecution claim that had apparently been waived, and applied the "deliberate imposition of substantial economic disadvantage" standard from Kovac v. INS, 407 F.2d 102 (9th Cir. 1969). However, citing Brand X, the court concluded that it was unnecessary to determine whether the use of the Kovac standard was necessary to the result in Guan Shan Liao and therefore binding on the court "because a finding by this Court that a statutory interpretation is permissible does not bind the agency to adopt that interpretation."