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General Immigration 11th Circuit Declines to Apply Chevron Deference to Non-Precedential Single-Member BIA Decision | 11th Circuit Declines to Apply Chevron Deference to Non-Precedential Single-Member BIA Decision |
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| Monday, 11 August 2008 | |||||||||||||||
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Quinchia v. U.S. Att’y General, No 07-12248, (11th Cir.) August 7, 2008 SILER, Anderson, Hull
In Quinchia, the petitioner sought review of the BIA’s finding that he did not meet the seven years’ continuous lawful residence requirement for a discretionary waiver under INA § 212(h); 8 USC § 1182(h). Quinchia had become a lawful permanent resident in January of 1998 and was subsequently convicted of robbery in June of 2002. Thereafter, he traveled and was paroled into the United States after traveling in January of 2004. A Notice to Appear (NTA) was issued in May of 2004.
Quinchia argued that his lawful residence began as of the time he applied for adjustment of status, in April of 1997, rather than on January of 1998 when he was actually granted lawful permanent resident status. The BIA disagreed and his appeal was dismissed by a single board member in an unpublished decision.
The Eleventh Circuit first examined whether it would apply Chevron deference to a non-precedential BIA decision decided by a single member that did not rely on existing BIA or federal court precedent. Joining the Second and Ninth Circuits, the Eleventh Circuit found that such decisions do not indeed merit Chevron deference. Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. 2007); Quintero v. Gonzales, 455 F.3d 1006 (9th Cir. 2006). The Court distinguished cases in which it applied Chevron deference to non-binding BIA decision decided by a sole member, stating that in those cases, the single board member had relied on existing BIA or federal court precedent. Silva v. United States Att’y General, 448 F3d 1229 (11th Cir. 2006). But that was not the case here.
Next, the Eleventh Circuit turned to the merits of Quinchia’s appeal – whether he had met the seven years’ continuous lawful residence. The Court gave itself two options: decide the issue itself, applying the lesser standard of deference under Skidmore v. Swift & Co., 323 US 134 (1944), or remand the case to the BIA for a three-member panel to decide the case. The Eleventh Circuit agreed with the conslusion reached by the Second Circuit in Rotimi and chose the latter option, declining to consider the merits of Quinchia’s appeal without first allowing the BIA to do so.
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