When a court concludes that an agency’s decision is erroneous, the ordinary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). The Supreme Court arguably first articulated this ordinary remand rule in the Chenery decisions in the 1940s. As I explore elsewhere, the Court further fleshed out the remand rule in a trilogy of immigration adjudication decisions in the 2000s. The last of those decisions — Negusie v. Holder — was decided in 2009, the Term I clerked for Justice Kennedy. As I explain more below, in Negusie the Court applied the ordinary remand rule and sent the case back to the agency for reconsideration.
Fast forward nine years(!), and just last week the Board of Immigration Appeals issued its interim decision on remand, recognizing a narrow exception for duress to the statutory persecutor bar to asylum relief but finding that Negusie himself did not meet the newly articulated standard. In this post I offer a few quick reactions to the agency’s decision on remand, but first a little background on the case.
In Negusie v. Holder, the Supreme Court was asked to consider whether the agency’s interpretation of a persecutor bar to asylum relief in the Immigration and Nationality Act was owed Chevron deference. The agency had interpreted the statutory provision to require denial of asylum to any otherwise qualifying noncitizen if he had persecuted others in his native country — regardless of whether that participation in persecution was voluntary. The Court concluded that Chevron deference did not apply because the agency had misread prior Supreme Court precedent and erroneously concluded it was bound by that precedent at Chevron step one.
In other words, the agency had not exercised any discretion to which Chevron deference would apply. Instead of reaching the question itself, however, the Court remanded the question to the agency to consider in the first instance, reiterating the ordinary remand rule: “Having concluded that the BIA has not yet exercised its Chevron discretion to interpret the statute in question, ‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”
Justice Stevens, joined by Justice Breyer, dissented in part, arguing that the Court should answer the question presented, holding that the statutory persecutor bar does not foreclose a duress exception and then remanding the case to the agency to flesh out the duress exception standard. Justice Scalia, joined by Justice Alito, concurred, noting that on remand the agency could still reach the same substantive conclusion that there is no duress exception to the persecutor bar. Finally, Justice Thomas dissented, finding that the statute foreclosed any duress exception to the persecutor bar.
The Supreme Court’s Negusie decision issued on March 2, 2009. The Board of Immigration Appeals interim decision on remand issued on June 28, 2018. Over nine years! Wow.* I will see if I can find out more details about why the decision on remand took that long. But here are a few quick reactions to the decision on remand:
First, it’s noteworthy and impressive that the prominent appellate litigator who argued the case before the Supreme Court — Andrew Pincus — continued to represent Negusie before the agency on remand. His advocacy no doubt helped the Board of Immigration Appeals craft a duress exception to the persecutor bar.
Second, even though Negusie did not ultimately obtain asylum relief from removal, the Board did recognize a narrow duress exception to the persecutor bar. In this interim decision, the Board set forth the threshold standard for considering the duress exception (at 363):
While we need not define the precise boundaries of a duress standard in the context of this case, at a minimum the applicant must establish by a preponderance of the evidence that he (1) acted under an imminent threat of death or serious bodily injury to himself or others; (2) reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) had no reasonable opportunity to escape or otherwise frustrate the threat; (4) did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others. Only if the applicant establishes each element by a preponderance of the evidence would it be appropriate to consider whether the duress defense applies.
I’m guessing this is a much narrower approach than Justice Stevens was envisioning, but I’ll defer to the immigration law scholars on the substantive law.
Third, in the context of the ordinary remand rule, we often think of the agency as an it, instead of they. Indeed, the interaction between Justice Kennedy’s opinion for the Negusie Court and the dueling separate opinions of Justices Scalia and Stevens underscores this unitary agency vision. But the interim decision on remand complicates the picture. On remand, one agency — the Department of Homeland Security — seems to have adopted Justice Thomas’s approach, arguing (at 350-351) for a “bright-line” persecutor bar to asylum relief that recognizes no duress exception. By contrast, the Board of Immigration Appeals, which is located within the Justice Department’s Executive Office for Immigration Review, recognized a narrow duress decision in its interim decision.
To complicate things even further, the Attorney General has final decision-making authority at the Justice Department and could refer the case to himself for decision. Indeed, last month Attorney General Sessions did just that with respect to another Board decision, ultimately holding that being a victim of private criminal activity generally does not constitute a cognizable “particular social group” for purposes of asylum relief or withholding of removal unless the applicant can show that “flight from her country is necessary because her home government is unwilling or unable to protect her.”
In other words, when courts remand cases to an agency and attempt to engage in a dialogue with the agency on remand, it’s important to understand that the “agency” often consists of various separate listeners. DHS clearly considered the separate opinions by Justices Scalia and Thomas when arguing against a duress exception, whereas it’s pretty clear from the interim decision that the Board of Immigration Appeals carefully considered Justice Stevens’s separate opinion.
Fourth and finally, is the ordinary remand rule actually doing important work here? My coblogger Nick Bagley and I have had our fair share of debates about whether courts should exercise more remedial restraint in administrative law, with Nick arguing for restraint and me against it. The obvious argument against remand here is that it took so long — over nine years — for the Board to reach an interim decision. That is a long time!
On the flip side, I’m not sure how the Supreme Court would have ruled if it had not remanded the statutory interpretation question. It is not clear at all from the opinions if the Court had a majority to recognize a duress exception. And even under Justice Stevens’s approach, the Court would have remanded the case to the agency to flesh out the scope of the duress standard. In its interim decision, the Board also seems to exercise its comparative expertise of weighing the policy tradeoffs of a duress exception and tailoring a standard that it believes strikes the right balance.
Still, that’s over nine years on remand for Negusie to learn that he has been denied aslyum relief and for the agency to craft a narrow duress exception to the statutory persecutor bar to asylum relief. Based on my limited research via FOIA on immigration adjudication remand decisions, this strikes me as exceptionally long. But I’m curious if others have better data on the outcomes and duration of remands.
* Personal Note: During that same time period, I worked three years at a law firm, joined the Ohio State law faculty, and received tenure a couple years back. I also got married, and we have since welcomed four children into our home. A lot of life has been lived during the time between the Supreme Court’s opinion and the Board’s interim decision on remand.