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IMMIGRATION                                                           MARCH 01, 2024       |  The Indian Eye 44




                Board of Immigration Appeals in Matter of


              Aguilar Hernandez Provides Glimpse of How


              Statutes and Regulations Will Be Interpreted


                         Without Deference to Government





        BY CYRUS D. MEHTA AND      Immigration Judge denied  the IJ denied his motion to   that INA 239(a)(1) requires  deference to an agency’s in-
        KAITLYN BOX                his motion. In October 2022,  terminate once again, with-  one “single document” in  terpretation of its own am-
                                   Mr.   Aguilar   Hernandez  out issuing a decision con-  Niz-Chavez, and rejected the  biguous regulation.  In Agu-
               n January 31, 2024,   again moved to terminate the  cerning DHS’ submission of   idea that DHS could provide  ilar  Hernandez  it  does  not
               the  Board  of  Im-
        Omigration        Appeals  removal proceedings due to  the Form I-261. Mr. Aguilar   adequate notice by issuing  appear that the BIA thought
                                                                                                                     that 8 C.F.R. § 1003.30 was
                                                                                          multiple successive  docu-
                                                              Hernandez then appealed to
                                   the defective NTA. The De-
        (BIA) issued a decision in   partment of Homeland Se-  the BIA.                   ments containing the rele-  ambiguous, and so it did not
        Matter of Aguilar Hernan-  curity objected, arguing that   The BIA held that      vant  information.  See  Niz-  even need to defer to the
        dez.                       the IJ  had the  discretion  to  “DHS cannot remedy a no-  Chavez, 593 U.S. at 160-61.  government’s interpretation
            Mr. Aguilar Hernandez,
                                                                                             Matter of Aguilar Her-
        a  noncitizen  from  Mexico,   allow it to cure the defective  tice to appear that lacks the   nandez  is  a  victory  for  non-  of this regulation even under
                                   NTA rather than terminating  date and time of the initial
                                                                                                                     the narrower standard as set
        had been served a Notice to   removal proceedings. DHS  hearing before the Immigra-  citizens seeking to terminate  forth in Kisor v. Wilkie. The
        Appear (NTA) in 2019 that   filed  a  Form  I-261  contain-  tion  Judge  by  filing  a  Form   removal proceedings on the  plain language of 8 C.F.R. §
        did not list the date and time   ing the date and time of the  I-261 because this remedy is   basis of a defective NTA, but  1003.30 did not support an
        of his individual hearing. He   next hearing, and also list-  contrary to the plain text of   it is interesting for another  expansive reading that would
        objected that this NTA was   ing the date and time of the  8 C.F.R. § 1003.30 and in-  reason, as well – it represents  allow the government to cure
        defective at both his individ-  original  hearing,  and  served  consistent with the Supreme   one of the rare instances in  a defective NTA by amend-
        ual hearing and moved to   this form on Mr. Aguilar  Court’s  decision  in  Niz-  which the BIA has cited Ki-  ing it through the submission
        terminate the removal pro-  Hernandez.  Over  Mr.  Agu-  Chavez.”  In  Niz-Chavez  v.   sor v. Wilkie. As prior blogs  of an I-261. An I-261 under 8
        ceedings against him, but the
                                   ilar  Hernandez’s  objections,  Garland, 593 U.S. 155, 160-  have noted (here, here, and  C.F.R. § 1003.30 only allows
                                                                  62 (2021), the Supreme   here) Kisor v. Wilkie laid  the government to add or
                                                                  Court held that DHS     out a three-step test for how  substitute charges in an NTA
                                                                  cannot  cure a  defective   it would view an agency’s in-  or to add or substitute factual
                                                                  NTA by issuing a hear-  terpretation of its own  genu-  allegations.
                                                                  ing notice that contains   inely  ambiguous  regulation..   The requirement that
                                                                  the date and time of the   Under this test,  the court  the government interprets
                                                                  initial hearing in remov-  must determine (i) that the  the plain meaning of the reg-
                                                                  al proceedings. The BIA   regulation is “genuinely am-  ulation is part of a trend. The
                                                                  also cited to Pereira v.   biguous” — the court should  “Auer deference” standard as
                                                                  Sessions, 138 S. Ct. 2015   reach this conclusion after  modified  by  Kisor  v.  Wilkie
                                                                  (2018), in which the Su-  exhausting  all the “tradi-  is quite similar to “Chevron
                                                                  preme Court held that   tional tools” of construction;  deference”, which holds that
                                                                  the “stop-time rule” at   (ii) if the regulation is gen-  courts will give deference to
                                                                  INA 240A(d)(1) is not   uinely  ambiguous,  whether  a federal agency’s interpreta-
                                                                  triggered  by  an  NTA   the agency’s interpretation  tion of an ambiguous feder-
                                                                  that does not contain the   is reasonable; and (iii) even  al statute. Chevron U.S.A.,
                                                                  time and place of a hear-  if it is a reasonable inter-  Inc. v. Natural Resources
                                                                  ing in removal proceed-  pretation, whether it meets  Defense Council, 467 U.S.
                                                                  ings. The BIA reasoned   the “minimum threshold”  837 (1984). However, when a
                                                                  that “The plain text of   to grant Auer deference, re-  statute is not ambiguous, the
                                                                  8 C.F.R. § 1003.30 does   quiring the court to conduct  court does not need to even
                                                                  not support DHS’ argu-  an “independent inquiry”  rely on Chevron deference
                     m of                                         ment, because it does   into whether (a) it is an au-  and can side step the analysis
          CYRUS D. MEHTA & PARTNERS PLLC                          not allow amendment     thoritative or official position  all together.  While requir-
                                                                  of the date and time on   of the agency; (b) it reflects  ing an agency to adhere to

          
                          
  	                            
             the notice to appear by   the agency’s substantive ex-  the plain meaning of a stat-
                                                                  using a Form I-261. See,   pertise; and (c) the agency’s  ute or regulation helped the
             	                                 
                            e.g., Kisor v. Wilkie, 139   interpretation of the rule re-  respondent  in  Aguilar  Her-
                                                   
             ­
               €   
              ‚                                                     S. Ct. 2400, 2415 (2019)   flects “its fair and considered  nandez,  it  may  not  always
                                                                  (requiring agencies to   judgment.” In Kisor, the Su-  come to the aid of plaintiffs.
                                                                  follow the plain lan-   preme Court narrowed the  For instance,  the DC Circuit
                                                                  guage of a regulation).”   previous standard set forth  Court of Appeals in Wang v.
                                                                  The BIA noted that the   in Auer v. Robbins, which  Blinken  held that it was clear
          2              6th Floor
           
     
        	
     
         
                Supreme Court had held   held  that  courts  would  give  that INA 203(d) required the


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