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IMMIGRATION MARCH 08, 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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