The Lawletter Vol 46 No 2
It is well-established law that when a federal court reviews a federal agency's construction of a statute it administers, the court will look to whether Congress has addressed the precise question at issue. If the court determines that Congress has not directly addressed the issue, rather than imposing its own construction of the statute, the court will defer to the administrative agency's permissible construction of the statute. This standard of review is called Chevron deference, after the U.S. Supreme Court decision that articulated it. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). While application of Chevron deference frequently results in a decision upholding the agency's interpretation of its own statute, a recent decision from the Fourth Circuit Court of Appeals demonstrates that when the agency's interpretation is unreasonable, its interpretation will not prevail.
In Amaya v. Rosen, No. 19-1619, 2021 WL 232554 (4th Cir. Jan. 25, 2021), a case that will be of interest to immigration practitioners specifically and administrative law practitioners generally—the Fourth Circuit held that even if Chevron deference applies to the Board of Immigration Appeals ("BIA") decisions interpreting provisions of the Immigration and Nationality Act ("INA") on a case-by-case basis, the BIA's interpretation cannot be sustained if it is unreasonable. The relevant statute in that case was § 241 of the INA, 8 U.S.C. § 1231(b)(3)(A), which provides relief from deportation for a noncitizen who can show that there is a clear probability he will suffer persecution in his home country based on, inter alia, his membership in a "particular social group" ("PSG"). Amaya, 2021 WL 232554, at *1. Although the INA does not define particular social group, the BIA has established three criteria that must be satisfied: "(1) immutability, (2) social distinction and (3) particularity." Id. (citing In re M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). At issue in Amaya was whether the particularity criterion had been satisfied, that is, whether the proposed PSG—"former Salvadoran MS-13 members"—had discrete and definable boundaries. Id.
Before addressing the BIA's construction of the statute, the court first pointed out several potential barriers to application of Chevron deference in that particular case. First, the BIA decision in Amaya was a single-member decision, but BIA decisions have precedential value, and therefore the force of law, only if they are issued by a three-member panel or are en banc decisions. See 8 C.F.R. § 1003.1(g). The court concluded, however, that because the single-member opinion relied on a precedential BIA decision addressing an almost identical PSG, In re W-G-R-, 26 I. & N. Dec. 208, 221 (B.I.A. 2014) (considering proposed PSG of "former members of the Mara 18 gang in El Salvador who have renounced their gang membership"), it was appropriate to adhere to the principles of Chevron deference. Amaya, 2021 WL 232554, at *4.
Second, the government did not raise Chevron deference until oral argument. While nonjurisdictional arguments not raised in the brief are considered waived, the Fourth Circuit opined that because circuit precedent holds that standards of review cannot be waived, it would apply Chevron deference, which is a standard of review. Id.
Third, although it was clear that the BIA was owed Chevron deference for its construction of vague statutory terms, such as a PSG, it was less clear that the BIA was entitled to such deference for its own three-part test for defining a PSG. Nonetheless, the court opted in favor of deference to BIA decisions interpreting INA provisions on a case-by-case basis. Id. at *5.
Therefore, the question for the court was whether the BIA's particularity holding in W-G-R-, the precedential decision upon which the BIA relied in Amaya, was reasonable. Under Chevron, an interpretation can be unreasonable if it is "arbitrary, capricious, or manifestly contrary to the statute." 467 U.S. at 844. The Fourth Circuit found that while it was not manifestly contrary to the statute to interpret a PSG to exclude former MS-13 members, that interpretation was arbitrary and capricious in substance. Amaya, 2021 WL 232554, at *6.
The court found the BIA's application of the particularity requirement in W-G-R- was flawed in three ways. First, the BIA impermissibly conflated the particularity requirement with the social distinction requirement. The particularity requirement is intended to ensure an adequate benchmark for setting the boundaries of a proposed PSG. On the other hand, the social distinction addresses whether the PSG is perceived as a group by the relevant society. In W-G-R-, however, the BIA applied the same analysis to the particularity requirement and to the social distinction requirement. Amaya, 2021 WL 232554, at *7. Second, in applying the same analysis to the two criteria, the BIA confused questions of law with questions of fact. Particularity is a question of law. Social distinction is a question of fact. In focusing on whether the proposed PSG was recognized by society, the BIA improperly treated particularity as a question of fact. Id.
Third, the BIA unreasonably grounded its rejection of the PSG in W-G-R-, in part, on the fact that the proposed PSG could be further subdivided into smaller groups. However, the critical inquiry was whether the proposed PSG had clear boundaries, not whether those boundaries were too broad. Id. Those boundaries are no less clear just because of the complexity of the facts, which might make it challenging to determine whether the alien is actually a member of the proposed PSG. Id. at *8.
Finding the BIA's construction of particularity unreasonable, the court remanded the withholding of removal claim to the BIA. Significantly, the Fourth Circuit acknowledged that its conclusion differed from that of the Ninth Circuit, Reyes v. Lynch, 842 F.3d 1125, 1137 (9th Cir. 2016) ("[W]e find that the BIA's articulation of the 'particularity' and 'social distinction' requirements in Matter of W-G-R- is reasonable and entitled to Chevron deference."), and the Eleventh Circuit, Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 405 (11th Cir. 2016) ("Because the BIA decision relied on Matter of E-A-G- [24 I. & N. Dec. 591 (B.I.A. 2008)] and Matter of W-G-R-, both of which were precedential decisions issued by a three-member panel of the BIA, the BIA's determination on both counts is entitled to Chevron deference."). It will be interesting to see whether this split in the circuits is resolved by the agency or whether the question will end up in the U.S. Supreme Court.