The Revival of Reliance and Prospectivity: Chevron Oil in the Immigration Context

• Publication year: 2012

Washington Law ReviewVolume 36, No. 1, Fall 2012

The Revival of Reliance and Prospectivity: Chevron Oil in the Immigration Context

Elliot Watson(fn*)

I. Introduction

In 1889, the Supreme Court recognized Congress's plenary power to regulate immigration.(fn1) In 1952, Congress passed the Immigration and Nationality Act (INA), which Congress has continually revised subject to the political and economic norms of the period.(fn2) The INA is a highly technical statute and its provisions have prompted much litigation. According to one judge, immigration cases make up forty-six percent of the Ninth Circuit's workload.(fn3) Through the INA, "Congress has developed a complex scheme governing admission to our nation and status within our borders,"(fn4) which has led to the present intricate and changeable nature of immigration law.(fn5)

In addition to its complexities, immigration law may result in severe consequences that oftentimes exceed the punishments in criminal law. While being present in the United States without permission is not a "crime,"(fn6) a removal order often triggers greater hardship than a criminal sentence. Families are separated, lives are dismantled, and frequently, the deportee is not permitted to return to the United States.(fn7) The Supreme Court has "long recognized that deportation is a particularly severe penalty,"(fn8) and there are a string of Supreme Court and circuit court decisions affirming the criminal and punitive nature of deportation.(fn9)

Regardless, deportation is not a criminal punishment, but a "civil sanction."(fn10) The civil nature of immigration proceedings means that various constitutional protections that apply in the context of a criminal trial are absent in a removal hearing.(fn11) This includes the Constitution's absolute prohibition against ex post facto laws-laws that apply retroactively.(fn12) The Constitution's bar on ex post facto laws and the presumption against retroactive legislation are rooted in Supreme Court jurisprudence.(fn13) It reflects a basic notion of fairness that individuals will not be punished for relying on prior legislative acts, that they will have an opportunity to know what the law is, and that they will have the ability to conform their conduct accordingly.(fn14) A presumption against retroactive legislation exists in the civil setting as well, but varying exceptions and Supreme Court inconsistencies and discrepancies make this area of law unpredictable.(fn15) The technical complexities, the conflicting agency and circuit court decisions, and the punitive nature of deportation make retro-activity within immigration law even more convoluted.

A hypothetical may help demonstrate the unique dangers that detrimental reliance and conflicting rules of law pose in the immigration context: a Mexican couple and their ten-year-old child cross the border illegally near the Tijuana San Ysidro port of entry and begin living in Los Angeles. Because the boy entered illegally, the INA prohibits the child from legalizing his status through most immigrant or nonimmigrant visa processes within the U.S.(fn16) For twelve years the boy works illegally, saves money, and avoids detection. Then, Congress passes a law allowing certain aliens to apply for a waiver and adjust their status without having to return to their country of origin. The statute is ambiguous as to whether aliens, who entered illegally, may also apply for the waiver to adjust their status. The issue goes to the Ninth Circuit and the court rules that the waiver does apply to aliens who entered illegally. After this rule of law is announced, the boy comes out of hiding, hires an immigration attorney, pays the application fee of over $1,000, a fine of $1,000, and a waiver fee of over $500, and applies to adjust his status to that of a Legal Permanent Resident based on the Ninth Circuit's ruling.

Meanwhile, the agency in charge of executing immigration laws, the Board of Immigration Appeals (BIA), reviews the Ninth Circuit decision and issues a conflicting opinion that the waiver does not apply to aliens who entered illegally. Five years after its original decision, the Ninth Circuit revisits the issue and, based on principles of agency deference, gives effect to the BIA's interpretation. Meanwhile, the agency already accepted the boy's application fees, but never adjudicated the application during the five-year period when the controlling interpretation of the law was in his favor. After the subsequent conflicting Ninth Circuit decision, the agency denies the boy's application and instead places him in removal proceedings.

In the five years that passed between the Ninth Circuit's two conflicting opinions, a great number(fn17) of individuals, like the boy, relied on the prior ruling, came out of hiding, spent their life savings on immigration attorneys and fees, and were then placed into removal proceedings after the agency accepted their applications and fees, then denied the applications based on the Court's subsequent decision. By applying the Ninth Circuit's decision retroactively, the boy and potentially hundreds of similarly situated individuals will be removed to their country of origin after acting to their detriment, by paying the thousands of dollars in application fees to the government and coming out of the shadows, in reliance on a previously announced rule of law. The potential unfairness of the retroactive application of law is manifest and contrary to "familiar considerations of fair notice, reasonable reliance, and settled expectations."(fn18)

This hypothetical is based on Gonzales v. U.S. Department of Homeland Security (Duran Gonzales), which, at the time of writing this Comment, is pending petition for rehearing en banc at the Ninth Circuit.(fn19) The Ninth Circuit first reheard Duran Gonzales in light of another recent Ninth Circuit decision, Nunez-Reyes v. Holder, but the three judge panel of Duran Gonzales III ultimately dismissed the plaintiff's action on October 25, 2011, applying the previously announced rule of law retroactively.(fn20) Plaintiffs then filed for a petition for rehearing en banc on December 9, 2011.(fn21) Nunez-Reyes, an en banc decision, addressed the question of when the court may apply a new rule of law to past events in the immigration context.(fn22) While factually distinct from Duran Gonzales, Nunez-Reyes applied a new rule of law to aliens prospectively only and, importantly, required the use of a test laid out in the Supreme Court's decision Chevron Oil Co. v. Huson.(fn23) The Chevron Oil test weighs reliance interests when deciding whether or not to apply an agency decision retroactively.(fn24) The Ninth Circuit's decision to use the Chevron Oil test to assess retroactivity is significant because, for the first time, circuit courts are recognizing that immigration cases do not fit squarely within the traditional civil context. Due to the very high stakes involved in immigration proceedings, upsetting reasonable, settled expectations based on the law in place at the time may result in severe consequences that transcend criminal punishment.(fn25)

Using Duran Gonzales as an example, this Comment discusses how courts determine when and if conflicting rules of law should be applied retroactively to aliens. Specifically, it argues that the holding in Nunez-Reyes and its use of the Chevron Oil test should be applied broadly to limit the retroactive application of law in certain immigration cases. Part II of this Comment gives a brief overview of Supreme Court retroactivity jurisprudence, the discretionary application of adjudicative retroactivity as described in Chevron Oil, and the Court's recent shift toward a more conservative approach. Part III discusses how administrative law affects that framework and how courts apply it after the Supreme Court, in Chevron USA(fn26) and Brand X,(fn27) adopted a policy of extreme agency deference.(fn28) Part IV discusses the Ninth Circuit's Nunez-Reyes decision. Part V traces the complex procedural and factual history of Duran Gon-zales as well as the Ninth Circuit and BIA cases surrounding it. Part VI discusses the Ninth Circuit's recent decision of Duran Gonzales III and explains why it failed to apply Nunez-Reyes appropriately. Finally, Part VII offers a brief conclusion.

II. Overview of Civil Retroactivity

Retroactivity has a tortured history in the Supreme Court. Traditionally, the Court has distinguished between retroactive legislation by Congress and retroactive adjudication by the judiciary.(fn29) An assumption exists that statutes operate prospectively, while court decisions may apply retroactively to the parties under direct review.(fn30) Put simply, while Congress cannot create new laws that presently penalize prior conduct, judges may, through adjudication, issue decisions that affect previous behavior. While the origin of the doctrine traces back to the writing of the Constitution,(fn31) it was not formulated until a series of criminal law decisions in the 1960s.(fn32) Due to similar concerns of finality, fairness, reliance, and stare decisis, retroactivity presents a similar problem in both criminal and civil contexts.(fn33)

The first court to part with the traditional rule of retroactive application was Linkletter v. Walker, a criminal case decided in 1965, which held that a subsequent adjudication is subject to no set "principle of absolute retroactive...