We typically limit this blog to BIA decisions and discussion, but a decision from the Ninth Circuit today has significant implications on the amount of deference the Ninth Circuit will give to published BIA decisions.

In Garfias-Rodriguez v. Holder, the Ninth Circuit has apparently uttered the last word in a long and twisted series of decisions about how a waiver under former section 245(i) should be applied when a person is inadmissible under the permanent bar in INA 212(a)(9)(C). The court recognized that there is a tension between former INA section 245(i) and INA 212(a)(9)(C), because the former allowed adjustment of status for individuals who had entered without permission while the latter made some individuals who had entered without permission to be permanently ineligible for adjustment of status.  Because an ambiguity exists, the courts must then determine whether the agency’s interpretation of the ambiguous statute is reasonable  under the Supreme Court’s decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984).  The courts are supposed to defer to reasonable agency interpretations even when they conflict with the prior holding of a federal circuit court.  National Cable & Telecommunications Ass’n v. Brand X Internet Services,  545 U.S. 967, 982-83 (2005).  On this question, the Ninth Circuit recognized that every other circuit to have considered it had decided that the BIA’s interpretation of the statute was reasonable, and it joined those circuits. The court concluded that although this change in policy was retroactive, it still applied to the petitioner.

In an unrelated issue, the court concluded that it lacked the equitable authority to stay an order of voluntary departure. And it joined the Sixth Circuit in holding that 8 C.F.R.§ 1240.26(i), which terminates a grant of voluntary departure upon the filing of a petition for review if the person does not leave the country within 30 days, is a permissible use of the discretion delegated to the Attorney General by Congress.