Attorney General Cannot Prevent Judges From Suspending Immigration Proceedings
In 2018, the U.S. Attorney General’s office under Jeff Sessions reversed longstanding precedent in holding that immigration judges and the Board of Immigration Appeals do not have the authority to suspend immigration proceedings. The decision, Castro-Tum, made it harder for judges to use discretion in dismissing cases. It was also a departure from the traditional limited government, hands-off principles of the Republican party, of whom Jeff Sessions is, of course, a prominent member.
Should Courts Defer to the Attorney General on This?
Unsurprisingly, the decision was challenged. Still, an important principle in administrative law is that courts should give deference to federal agencies in interpreting their own regulations when those regulations are ambiguous. This is known as Auer deference. Last year, it was widely expected that the Supreme Court would overturn Auer, since the court had a conservative majority. But it survived, with a plurality of justices in Kiser v. Wilkie keeping the doctrine alive.
The question before the Fourth Circuit, then, was whether Auer deference applies to Castro-Tum.
Judges G. Steven Agee and Henry F. Floyd, appointed by President George W. Bush, and Stephanie D. Thacker, appointed by President Barack Obama, unanimously agreed that Castro-Tum should not get Auer deference.
What Does “Any” Mean Anyway?
While Auer deference is still precedential in the wake of Kiser, the 4th Circuit found that Auer deference did not apply since the plain meaning of 8 C.F.R. § 1003.10(b) and 8 C.F.R. § 1003.1(d)(1)(ii) gave immigration judges the right to suspend proceedings.
Section 1003.10(b) gives immigration judges the right to “… take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” Judge G. Steven Agee, writing for the unanimous panel, found this statute to give clear authority to IJs and the BIA to suspend proceedings when doing so was appropriate and necessary.
Judge Agee then goes on to define – painfully – what “any” means.
Dictum and Unfair Surprises
While the Fourth Circuit’s plain reading resolves the matter, in dictum the court went on to explain that even if the regulation had been ambiguous, the 4th Circuit still would not have given Auer deference to the AG’s decision in Castro-Tum. Judge Agee wrote that the “unfair surprise” exception would apply, since IJs and the BIA have had the ability to suspend proceedings for decades and were not given fair warning that ability would be changing prior to Castro-Tum.
For the same reason, when evaluating Castro-Tum based on its validity, consistency and ability to persuade, the Fourth Circuit found it lacking.
While some have argued that Auer deference may have staying power, as the dictum illustrates, Auer deference is by no means a bulletproof defense for federal agencies.
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