10-2986 Arobelidze v. Holder

Listen to this article

Immigration
Judicial review

Non-precedential decisions by the Board of Immigration Appeals that do not rely on binding Board precedent are not afforded Chevron deference.

“Out of all of the circuits to address the question, we are the only one to go the other way. In Gutnik, we determined that these streamlined, non-precedential opinions are given Chevron deference so long as the Board provides us with some reasoning to review. Gutnik v. Gonzales, 469 F.3d 683, 690 (7th Cir. 2006). In doing so, we relied on the Supreme Court’s general statement in Aguirre-Aguirre that ‘“[j]udicial deference to the Executive Branch is especially appropriate in the immigration context.”’ Id. (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 416 (1999)). But Mead came after Aguirre-Aguirre, and it made clear that the sine qua non of Chevron deference is an agency statement carrying the force of law. Mead, 533 U.S. at 226-27. It is for that reason that we have expressed doubts about Gutnik’s vitality. See, e.g., Chen v. Holder, 607 F.3d 511, 514 (7th Cir. 2010); Ghani v. Holder, 557 F.3d 836, 840 (7th Cir. 2009); Joseph, 579 F.3d at 833. Today we hold that non-precedential Board decisions that do not rely on binding Board precedent are not afforded Chevron deference. To the extent that Gutnik is inconsistent with this, it is overruled.”

Petition Granted.

10-2986 Arobelidze v. Holder

Petition for Review of an Order of the Board of Immigration Appeals, Kanne, J.

Full Text