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IMMIGRATION SEPTEMBER 25, 2026 | The Indian Eye 41

§ 212(a)(2)(A)(i) required the court to same framework. Although the BIA relief is available but the record does The court interpreted the inadmissi-
determine whether the individual pres- could theoretically refer a case to the not establish a constitutional or pro- bility language in INA § 212(a)(2)(A)
ently stood “convicted of” the relevant Attorney General, such referral was cedural defect of the type contemplat- (i); it did not purport to resolve every
offense. discretionary. It was not an administra- ed by Pickering. A noncitizen may be INA provision that turns on a convic-
Loper Bright also cautioned that tive remedy available to the petitioner able to obtain a state-court vacatur and tion. Other provisions may use different
overruling Chevron does not, by itself, as of right .INA 242(d)(1), the court dismissal without being able to satisfy language or implicate circuit precedent
unsettle prior decisions upholding par- reasoned, does not require a noncitizen Pickering’s reason-for-vacatur test. Ya- that cannot be distinguished as Phan
ticular agency actions. Those decisions to pursue a discretionary referral mech- nez Piedra suggests that, at least under was here.
remain subject to ordinary principles of anism before obtaining judicial review. § 212(a)(2)(A)(i) in the Fourth Circuit, The government may also argue
statutory stare decisis, and reliance on Requiring such a step would effectively that distinction is beside the point. outside the Fourth Circuit that existing
Chevron alone is not a “special justifica- turn exhaustion into a demand that a The decision also offers a broad- precedent adopting Pickering remains
tion” for overruling them. The Fourth petitioner pursue a discretionary and er litigation strategy in the post-Loper binding unless and until reconsidered by
Circuit, though, concluded that it did potentially futile procedural maneuver. Bright era: identify the precise statutory the relevant court sitting en banc or by
not need to decide how that principle Within the Fourth Circuit, Yanez language at issue, determine whether the Supreme Court. And a state-court
would apply to a prior decision that Piedra gives practitioners a significant existing circuit precedent actually con- order must actually vacate the convic-
actually resolved the same statutory argument that a fully vacated convic- strued that language, and insist on inde- tion. A pardon, expungement, deferred
question. Phan did not do so. The par- tion cannot support inadmissibility pendent judicial interpretation rather disposition, etc. may not suffice.
ties in Phan had assumed that Pickering under INA § 212(a)(2)(A)(i), regard- than reflexive reliance on pre-Loper
supplied the governing framework, and less of why the state court granted the Bright agency doctrine. At the same *Kaitlyn Box is a Partner at Cyrus D.
the court had not considered—much vacatur. That can be particularly con- time, the holding should not be read Mehta & Partners PLLC.
less decided—whether the distinct sequential where state post-conviction more broadly than the opinion permits.
phrase “any alien convicted of” in INA ________________________________________________________________________________________________________________________________________________________________________________________________
§ 212(a)(2)(A)(i) permitted the BIA’s Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
reason-for-vacatur distinction. Because & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
an issue that merely “lurks” in the re- mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
cord is not resolved by precedent, Phan Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
created no statutory holding to which of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
stare decisis could attach on the ques- Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
tion presented in Yanez Piedra. Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
The court also rejected the gov- on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
ernment’s argument that Yanez Piedra Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
had failed to exhaust her challenge to and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
Pickering under INA § 242(d)(1). The immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
BIA was bound by Pickering, and the the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
Attorney General had endorsed the in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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