Ninth Circuit Applies Skidmore Deference to CIMT Determination

The Ninth Circuit has determined that Skidmore deference is the appropriate level of deference to apply to the agency’s determination that a conviction constitutes a crime involving moral turpitude. Under Skidmore, the agency’s decision is entitled to “due respect,” but not binding deference. Applying this standard, the Court determined that the agency’s abolition of the distinction between permanent takings and certain less-than-permanent takings in Matter of Diaz-Lizarraga is entitled to deference. With that definition, the Court agreed that a conviction for theft under the Reno Municipal Code is a crime involving moral turpitude. The Court also deferred to the decision in Matter of Nolan, finding that the non existence of a pardon for a municipal offense does not preclude its classification as a conviction. Finally, with respect to prior interpretations of what crimes involving moral turpitude “arise from a single scheme,” the Court noted that it had deferred under Chevron to Matter of Adetiba in Szonyi v. Whitaker. Although Chevron deference has been abolished, the Court found it was still bound by precedent in Szonyi.

The full text of Lopez v Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/09/11/23-870.pdf

Fourth Circuit Finds that IJs Have Inherent Authority to Terminate Removal Proceedings

The Fourth Circuit has concluded that Immigration Judges have the inherent authority to terminate removal proceedings, and that the Attorney General’s contrary decision in Matter of S-O-G- & F-D-B- is not entitled to deference.

The full text of Chavez Gonzalez v. Garland can be found here: https://www.ca4.uscourts.gov/Opinions/201924.P.pdf

Fifth Circuit Defers to Matter of A-B-

The Fifth Circuit has deferred to the Attorney General’s decision in Matter of A-B-, and rejected a domestic violence-based protection claim. The court also determined that the injunction in Grace v. Whitaker only enjoins the application of Matter of A-B- in credible fear interviews, not in removal proceedings. Thus, the injunction poses no impediment to the Fifth Circuit evaluating the validity of the decision in the context of a removal proceeding.

The full text of Gonzalez-Veliz v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60174-CV0.pdf

SCOTUS Limits Deference to Agency Interpretation of Regulations

The Supreme Court has limited the instances in which deference will be owed to an agency’s interpretation of its own regulations (known as Auer deference).

“The possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation. Still more, not all reasonable agency constructions of those truly ambiguous rules are entitled to deference. As just explained, we presume that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules.But when the reasons for that presumption do not apply, or countervailing reasons outweigh them, courts should not give deference to an agency’s reading, except to the extent it has the ‘power to persuade.’” “And although the limits of Auer deference are not susceptible to any rigid test, we have noted various circumstances in which such deference is ‘unwarranted.’ In particular, that will be so when a court concludes that an interpretation does not reflect an agency’s authoritative, expertise-based, fair, or considered judgment.”

Recognizing that not all regulations are ambiguous, the Court implored lower courts to “make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.”

The Court suggested that interpretation of legal terminology may fall outside an agency’s expertise. “When the agency has no comparative expertise in resolving a regulatory ambiguity, Congress presumably would not grant it that authority.”

“And a court may not defer to a new interpretation, whether or not introduced in litigation, that creates 'unfair surprise’ to regulated parties. That disruption of expectations may occur when an agency substitutes one view of a rule for another. We have therefore only rarely given Auer deference to an agency construction conflicting with a prior one.

The full text of Kisor v. Wilkie can be found here:

https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf