Is the Board of Immigration Appeals Entitled to Chevron Deference When Interpreting What Constitutes Child Abuse?

BACKGROUND

Chevron U.S.A., Inc. v. Natural Resources Defense Council established a framework for determining whether the decisions of administrative bodies are entitled to judicial deference. In very simplified terms, Chevron states that, when a statute is ambiguous, the decisions of administrative agencies should be granted judicial deference unless they are arbitrary or capricious. This determination is made in two steps. First, the court must determine whether the plain language of the statute in question is ambiguous. Second, if the language is determined to be ambiguous, the court must determine whether the administrative agency’s decision was arbitrary or capricious.

The Board of Immigration Appeals (BIA) is the “highest administrative body for interpreting and applying immigration laws,” and has nationwide jurisdiction to hear appeals of decisions rendered by immigration judges. In this capacity, the BIA often finds itself interpreting the Immigration and Naturalization Act (INA) during immigration proceedings.

In the Ninth Circuit case Martinez-Cedillo v. Sessions (2018), Marcelo Martinez-Cedillo was convicted of felony child endangerment under California Penal Code §273a(a). Mr. Martinez-Cedillo was ordered removed from the United States on the grounds that his conviction constituted “a crime of child abuse, child neglect, or child abandonment” under INA §237(a)(2)(E)(i). On appeal, the primary issue—and the source of the circuit split—was whether BIA’s interpretation of “child abuse, child neglect, or child abandonment,” as written in the INA, was entitled to Chevron deference.

THE NINTH CIRCUIT’S CHEVRON ANALYSIS

The Ninth Circuit held, in a 2-1 decision, that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” was entitled to Chevron deference. Writing for the majority, Judge Bybee acknowledged that, regarding Chevron Step One, “every circuit court to have considered [the definition of “a crime of child abuse, child neglect, or child abandonment] noted its ambiguity,” and proceeded to Chevron Step Two without much discussion. Under Chevron Step Two, Judge Bybee determined that the BIA’s interpretation was “reasonable and entitled to deference.”

In dissent, Judge Wardlaw characterized the BIA’s interpretation as “unreasonable,” noting that the BIA’s definition had “inexplicably changed its generic definition three times in the past two decades.” Judge Wardlaw, quoting the Supreme Court in Sessions v. Dimaya (2018), further stated that the BIA’s “generic definition of the ‘crime of child abuse’ is so imprecise, it violates ‘essential’ tenets of due process, most specifically ‘the prohibition of vagueness in criminal statutes.’”

THE CIRCUIT SPLIT

Here, the Ninth Circuit joins the Second, Third, and Eleventh Circuits in holding that the BIA’s interpretation of “a crime of child abuse, child neglect, or child abandonment” should be granted judicial deference under Chevron. On the other hand, the Tenth Circuit held that the BIA’s interpretation should not be granted judicial deference.

In the Second Circuit case Florez v. Holder (2015), the BIA determined that Nilfor Yosel Florez’s action of driving while intoxicated with children in the back seat of his vehicle constituted “a crime of child abuse,” noting that the BIA’s interpretation of what constituted “a crime of child abuse” was “intentionally broad.” Of note in this case, Florez’s children were not harmed during the incident that led to his arrest and order of removal. The court determined that the BIA’s determination that actual injury to a child was not a required element of this definition was a reasonable one.

In the Third Circuit case Mondragon-Gonzales v. Attorney General of the United States (2018), Judge Vanaskie noted that the portion of the INA that listed general categories of crimes “was enacted…as part of an aggressive legislative movement to expand the criminal grounds of deportability … and to create a comprehensive statutory scheme to cover crimes against children in particular.” Similarly, in the Eleventh Circuit case Martinez v. United States Attorney General (2011), the court granted deference to the BIA’s determination that proof of actual harm or injury to the child by the petitioner was not required.

But the Tenth Circuit disagreed—in Ibarra v. Holder (2013), the court refused to grant deference to the BIA’s determination that a Colorado conviction for “child abuse—negligence—no injury” constituted a “crime of child abuse, child neglect, or child abandonment” under the INA. The court noted that the plain language of the statute applied only to crimes, but that not all states criminalize certain acts of child neglect, particularly in the absence of mens rea beyond criminal neglect or in the absence of proof of actual injury to the child. The court reasoned that in effect, the BIA’s interpretation of “a crime of child abuse” and its subsequent application would vary from one jurisdiction to another, depending on whether certain acts of child neglect were criminalized.

LOOKING FORWARD

With at least five circuits speaking to whether the BIA’s interpretation of “a crime of child abuse” should be granted judicial deference, the issue is ripe for review by the Supreme Court. However, these decisions point to a larger problem—the vagueness of some of the language in the INA combined with the latitude granted to the BIA, which often acts as the final voice on deportation decisions, to make broad interpretations of certain portions of the statute. It is especially important to note that these immigration decisions are not limited to undocumented immigrants—for example, Mr. Florez, the defendant in Florez, was a legal permanent resident at the time that his removal was ordered. In today’s climate, where deportation is all but actively encouraged, two additional steps besides eventual Supreme Court review would be particularly helpful: (1) clarification of the language of the statute by Congress, and (2) closer scrutiny by courts as to whether the BIA’s interpretations—not just limited to the BIA’s interpretation of child abuse—have become overly broad, especially in light of the administration’s anti-immigrant stance.

Are We Done Yet ?… The Investigation That Never Ends.

The Issue

Does the EEOC have investigative authority to subpoena employers for information after the EEOC has issued an employee a right-to-sue letter? What about after a court has already entered a judgment on the merits in favor of the employer? The Seventh Circuit says yes. 

The EEOC… What Now?

The Equal Employment Opportunity Commission (EEOC) is an agency that was created by Congress under the Civil Rights Act of 1964. The purpose of the agency is to serve the public interest by enforcing the provisions of Title VII of the Civil Rights Act and other non-discriminatory legislation in the workplace context. Under the Equal Employment Opportunity Act of 1972, the EEOC’s power was magnified to include enforcement through the courts, longer periods of time for administration, and conciliation of charges. Further, Section 706 of this Act lays out the procedures and timing guidelines for claims filed with the agency.

First, an aggrieved employee may file a charge with the EEOC. Thereafter, the agency investigates the claim against the employer. This investigation could include a subpoena for relevant information and ultimately lead to a lawsuit filed by the agency itself. The charging employee has the option to allow the charge to be resolved by the EEOC or to obtain a right-to-sue letter from the EEOC, which is necessary to file a lawsuit in federal court (excluding charges under the Age Discrimination in Employment Act).

The Split

The Seventh Circuit joins the Ninth Circuit in holding that the EEOC has the administrative authority to investigate possible discrimination independent of the employee’s cause of action. In EEOC v. Union Pac. R.R (2017), the Seventh Circuit upheld the EEOC’s ability to continue investigating an employer after issuing a right-to-sue notice to an employee and after the dismissal of the employees’ subsequent civil lawsuit on the merits. The court reasoned that ruling otherwise would erroneously undermine the EEOC’s authority as “merely derivative” of the employee’s right to sue, which would be contrary to the holding of the Supreme Court in EEOC v. Waffle House (2002).

In EEOC v. Fed. Express Corp. (2008), the Ninth Circuit held that the issuance of a right-to-sue letter does not strip the EEOC of authority to continue to process the charge, including an independent investigation of allegations of discrimination on a company-wide basis. They reasoned that “the EEOC’s right of action is independent of the employee’s private action rights” and further that “it is the [EEOC]’s province–not that of the court–to determine whether public resources should be committed” to the continuing investigation of a charge.

However, in EEOC v. Hearst (1997), the Fifth Circuit held that the EEOC “may not continue an administrative investigation based upon an individual’s charge once the charging party has been issued a right to sue letter and has initiated litigation based upon that charge.” They reasoned the time for investigation passes after litigation has commenced.

Looking Forward

The Seventh Circuit’s opinion largely aligned with the US Supreme Court’s holding in EEOC v. Waffle House (2002).  The Supreme Court reasoned that “[t]he statute clearly makes the EEOC the master of its case and confers on the agency the authority to evaluate the strength of the public interest at stake.”

Following the Seventh Circuit’s decision, the EEOC’s investigative authority could be challenged in other circuits and present an opportunity for the Supreme Court to rule on this issue. In particular, the issue of whether a valid, final judgment on the merits presents enough discovered information on the employer’s practices would be a different issue from that of Waffle House. The Supreme Court of the United States may need to more definitively rule on this issue for uniformity of the law across circuits.

One Step Too Far? What to Do With Personal Information Under the Freedom of Information Act

Background

The Freedom of Information Act creates a regulatory mechanism allowing private individuals to request information from the Federal Government. Under 5 U.S.C. §552(a):

“Each agency shall make available to the public information as follows…descriptions of its central and field organization…statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available…rules of procedure…[and] substantive rules of general applicability.”

Freedom of Information Act requests are denied only if the information requested falls under one of the nine exemptions listed in the Act. In particular, 5 U.S.C. 552(b)(6) (affectionately known by yours truly as “Exemption 6”) centers on precluding disclosure of information that infringes on personal privacy. “This section does not apply to matters that are….personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy….” If the disclosure may infringe on the privacy of individuals, the court must balance that invasion with the value of the information to the public.

In its landmark ruling on the privacy exemptions, the Supreme Court in U.S. Dept. of Justice v. Reporter’s Comm. for Freedom of the Press stated that the information requested must reveal what the government is up to constitute a valid public interest. The Court held:

“…As we have repeatedly stated, Congress ‘clearly intended’ the FOIA to ‘give any member of the public as much right to disclosure as one with a special interest [in a particular document]…[but] that purpose…is not fostered by disclosure of information…accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.”

Basic translation—you can’t request information about private individuals from the agency for your own private uses, be they commercial or otherwise. But this raised an interesting question—what if the information did not directly reveal government activity but would allow for additional research?

Ray: The Supreme Court Declines to Rule

The typical example arises when a request seeks the names or contact information of individuals who would be able to provide additional information relating to the government activity.  The names and addresses do not reveal anything about the government, but may allow for interested members of the public to contact those individuals.

In U.S. Dept. of State v. Ray, the Supreme Court confronted such a question, but declined to lay out a rule as to “derivative use” of information. Specifically, the Court held that “There is no need to adopt such a rigid rule [on derivative use]…because there is nothing in the record to suggest that a second series of interviews with the already-interviewed returnees would produce any relevant information that is not set forth in the documents that have already been produced…”

The individuals in that case (Haitian refugees) had already been interviewed, and the findings of those interviews were released as part of the disclosure, so the Court did not feel it necessary to address the broader question of whether such a use would be cognizable.

Justice Scalia concurred in part and addressed the issue head on.  He noted that it did not make sense to allow derivative use on one side of the balance (i.e. to consider the effects of the individuals being contacted as an invasion of their privacy) but not the other. However, he insisted that derivative use should not be permissible with respect to either the privacy and public considerations, stating:

“…[S]ince derivative use on the public-benefits side, and derivative use on the personal-privacy side must surely go together…the Court should have been consistent in its abstention…[where] such matters as the “retaliatory action that might result from a renewed interest in [the interviewees’] aborted attempts to emigrate,” and “the fact that respondents plan to make direct contact with the individual Haitian returnees identified in the reports.”…is unnecessary to the decision since…each of the unredacted documents requested by respondents would disclose that a particular person had agreed, under a pledge of confidentiality, to report to a foreign power concerning the conduct of his own government.”

The Split: D.C. vs. the World

While no court appears to have categorically rejected the derivative use to evaluate the public interest, many circuits have been skeptical of its application, mostly in line with the majority (and with part of Scalia’s dissent) in Ray.  See Union Leader Corp. v. Dept. of Homeland Security (1st Circuit); Long v. OPM (2nd Circuit); Lahr v. Nat’l Trans. Safety Bd. (9th Circuit); and Sheet Metal Workers v. US Air Force (10th Circuit).

The D.C. Circuit, however, has struck a different path, not only allowing derivative use, but giving it a full-throated endorsement.  In Am. Civil Liberties Union v. U.S. Dept. of Justice, Judge Garland wrote that the Supreme Court’s decision not to rule on the derivative use theory left the circuit’s case law intact.

He traced Justice Scalia’s logic but arrived at the opposite conclusion, noting that without the application of derivative use, the agency would not be able to invoke the privacy exemption at all because the disclosure of personal information did not directly reveal anything inherently embarrassing, noting that “…[I]f we may not consider derivative use in determining the impact of disclosure on the public interest side, we also may not consider it in determining disclosure’s impact on privacy interests. And without derivative use, the Department would fail to meet the threshold” to invoke the exemption (because there would be no invasion of privacy)….”

The Future

While the large weight of authority seems to stack up against its approach, it is notable that the D.C. Circuit typically hears more of these cases than other circuits. That may give the Supreme Court something to consider if it finally decides to rule on the issue.

The Inferiority Complex: Hiring v. Appointing at the SEC

 

They hold hearings. They issue subpoenas. They adjudicate. In the 2016 fiscal year, they ordered $12.4 million in disgorgement and $14.5 million in civil penalties. They are the U.S. Securities and Exchange Commission’s (SEC) administrative law judges.

Administrative proceedings are commonly used by agencies to adjudicate claims or enforcement actions quicker than if the agency filed in federal court. Cases are heard before administrative law judges, or ALJs, instead of Article III judges on the federal bench. While the SEC faces numerous challenges to the partiality of its ALJs and its rules of practice, there is a preliminary challenge—are the SEC’s ALJs constitutional at all?

Hiring v. Appointing

Currently, the SEC’s ALJs are selected by the current Chief ALJ of the SEC, subject to the ALJ hiring process set forth by the Office of Personnel Management. Under the view that ALJs are employees of the SEC, this approach is perfectly fine. However, if ALJs are deemed “inferior officers,” then this selection process is unconstitutional.

The issue derives from the Appointment Clause of the Constitution. The Appointment Clause gives the President the power to appoint “primary officers,” subject to confirmation by the Senate. The clause gives Congress the power to vest appointment power for inferior officers in the President, judicial courts, or heads of departments. Thus far, there is no definitive test to determine what positions are inferior officers as opposed to mere employees.

The Split

In Bandimere v. SEC, the Tenth Circuit determined that SEC ALJS are inferior officers under the Appointment Clause. The court relied upon three facts from Freytag v. Commissioner of Internal Revenue, where the Supreme Court determined that the Tax Court’s special trial judges were inferior officers. The court wrote in Bandimere:

Those three characteristics exist here: (1) the position of the SEC ALJ was “established by Law”; (2) “the duties, salary, and means of appointment . . . are specified by statute”; and (3) SEC ALJs “exercise significant discretion” in “carrying out important functions.”

However, the D.C. Circuit reached the opposite result in Raymond J. Lucia Companies v. SEC. Here, the court determined that ALJs were employees of the SEC by primarily focusing on the fact that the ALJs’ decisions were subject to final review by the SEC Commissioners (who are primary officers).

Put otherwise, the Commission’s ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for public benefit.

Looking Forward

So where does this leave the law? Clearly, one circuit on its own cannot change the structure of a federal agency. If the Supreme Court concludes that the SEC’s ALJs are inferior employees, Congress would need to take swift action to create an appropriate avenue to appoint ALJs to avoid overwhelming the federal docket with cases that would have been resolved in administrative proceedings.