CA10 on Chevron, Brand X and Retroactivity: Gutierrez-Brizuela v. Lynch

Gutierrez-Brizuela v. Lynch, Aug. 23, 2016- "Hugo Gutierrez-Brizuela applied for adjustment of status in reliance on our decision in Padilla-Caldera I during the period it remained on the books.  About that much there is no dispute. But unlike Mr. De Niz Robles, Mr. Gutierrez-Brizuela applied for relief during the period after the BIA’s announcement of its contrary interpretation in Briones yet before Padilla-Caldera II declared Briones controlling and Padilla-Caldera I effectively overruled.  The BIA suggests this factual distinction makes all the legal difference.  But we fail to see how.  Indeed, the government’s position in this appeal seems to us clearly inconsistent with both the rule and reasoning of De Niz Robles. ... [I]f we allowed the BIA to apply Briones here, Mr. Gutierrez-Brizuela would lose the seven years he could’ve spent complying with the BIA’s ten year waiting period and instead have to start that waiting period now.  The due process concerns are obvious: when Mr. Gutierrez-Brizuela made his choice, he had no notice of the law the BIA now seeks to apply.  And the equal protection problems are obvious too: if the agency were free to change the law retroactively based on shifting political winds, it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter. ... Chevron step two and Brand X may mean that agencies exercising delegated legislative power can effectively overrule judicial precedents.  But that does not necessarily mean their decisions must or should presumptively apply retroactively to conduct completed before they take legal effect.  If anything, and as we’ve seen in De Niz Robles and again today, the opposite presumption should apply.  The petition for review is granted and the case remanded to the BIA for further proceedings consistent with this opinion."  [Hats off to Timothy L. Cook!]