Yanez Piedra and Statutory Stare Decisis After Loper Bright 

One of the more doctrinally vexing passages in Loper Bright Enterprises v. Raimondo is the Supreme Court’s admonition that, notwithstanding the significant doctrinal change caused by the overruling of Chevron, “holdings of those cases” previously decided under that interpretive framework would “still [be] subject to statutory stare decisis.”  As Chief Justice Roberts explained, “[m]ere reliance on Chevron cannot substitute a ‘special justification’ for overruling” a prior holding, “because to say a precedent relied on Chevron is, at best ‘just an argument that the precedent was wrongly decided.’”  These statements left much unanswered, and two years later, the lower courts continue to grapple with how to apply the principle of stare decisis to Chevron Step-Two precedents.  The Fourth Circuit’s recent decision in Yanez Piedra v. Blanche provides an interesting illustration of how one court has sought to resolve such questions while simultaneously highlighting various possible interpretations of the Supreme Court’s instructions. 

Background 

The Immigration and Nationality Act (“INA”) provides that, subject to limited exceptions, aliens who admit to or are “convicted of” certain offenses—namely, crimes involving moral turpitude or controlled substances—shall be ineligible for admission to the United States.  Implementation of that provision seems like it should be straightforward enough.  But what happens if an alien’s conviction is vacated?  Is that alien still inadmissible? 

Ms. Yanez Piedra is a Mexican national who, shortly after becoming a lawful permanent resident, was convicted of forgery and possession of marijuana in a North Carolina state court.  After completing her non-custodial sentences, she travelled to Mexico and was denied readmission to the United States based on her prior state-law conviction.  After conceding inadmissibility and seeking a waiver in immigration court, Ms. Yanez successfully petitioned a North Carolina judge to vacate her marijuana conviction.  Armed with that vacatur, she moved the Board of Immigration Appeals (“BIA”) to reconsider her case. 

BIA denied Mr. Yanez Piedra’s request, relying on its own precedent, In re Pickering, a 2003 case that established a framework for determining when vacated convictions have “immigration effect.”  Under Pickering, a conviction vacated due to a “procedural or substantive defect in the underlying proceedings” can no longer be used to deny admission to an alien, but a conviction vacated for other reasons, “such as rehabilitation or immigration hardships,” is still a qualifying ground for purposes of 8 U.S.C. § 1182(a)(2)(A)(i).  BIA justified this varied approach based, among other things, on the First Circuit’s interpretation of that provision, which attended to the “emphasis that Congress placed on the original admission of guilt.”  Such guilt is hardly vitiated by the quashing of a conviction, at least for reasons unrelated to the merits or other defects in the underlying criminal process. 

Judge Richardson’s Opinion 

In an opinion authored by Judge Julius Richardson, the Fourth Circuit sided with Ms. Yanez Piedra and rejected BIA’s “reason-for-vacatur” framework as inconsistent with the “best reading” of the INA.  The Court addressed at least two issues worth exploring here. 

First, it rejected the agency’s request for deferential treatment based on earlier circuit application of the Pickering framework—a sort of stare decisis argument.  In Phan v. Holder, another Fourth Circuit panel had agreed to apply Pickering in a case involving USCIS and its denial of an application for naturalization under 8 U.S.C. § 1101(f)(8).  The Phan court noted, at the time, that Pickering enjoyed “broad support” in other jurisdictions.  Yet Judge Richardson made clear Phan was not binding, especially in the present case, which dealt with a “materially different statute and a different set of facts involving a different agency.” 

Second, turning to the plain meaning of Section 1182, the Court proposed two possible readings of the phrase “any alien convicted.”  It could alternatively be understood to refer to “any alien who currently stands convicted” of an offense—what the Court termed the “legal-status reading”—or “any alien who at any time has been convicted”—the “historical-fact reading.”  The former approach was deemed best: 

[T]he term “convicted” is acting as a past particle.  Consider how other past participles—like “married,” “licensed,” or “employed”—might be understood in various contexts. . . .  In each example, the text and context . . . suggest that the relevant characteristic must currently apply. 

This common-sense reading was supported by other considerations, such as statutory context and “background legal principles.”  For example, the Court noted the Supreme Court has articulated an important “presumption,” namely, “that vacated court orders are void ab initio and thus lack any prospective legal effect.”  Once a conviction is vacated, regardless of the reasons for that vacatur, the formerly convicted person is no longer “convicted of” anything.  The government’s attempts to divert the Court’s attention with some “special federal usage” of “conviction” were unpersuasive, having no basis in historical practice let alone the statutory definition of that term. 

Given that Section 1182, on its best reading, refers to an alien who currently stands convicted, the Pickering framework makes little sense.  It did not matter whether “most federal circuits have adopted” it.  As the Court explained, “after Loper Bright, our job is neither to count judicial noses nor to defer to an agency’s statutory interpretation.”  Thus, regardless of the policy justifications for Pickering, the statutory text controlled and did not leave room for any inquiry to the “motive” driving any court’s decision to vacate a conviction. 

Footnote Three of the Panel Opinion 

Again, Judge Richardson rejected the government’s attempted stare decisis argument, which relied on earlier circuit application of Pickering.  Although he distinguished that earlier precedent on various grounds—a different agency, a different provision of the INA, and a different set of factual circumstances—he provided an interesting aside in a footnote, in which he identified some of the most pressing open questions vis-à-vis Loper Bright’s reference to statutory stare decisis and the fate of cases previously decided at Chevron Step Two. 

We could read the Court’s instructions in one of several ways.  First, we might give precedential effect broadly to the reasoning underlying a decision that relied on Chevron.  Under this view, if a prior decision found reasonable an agency’s interpretation of a statute, we would be bound to continue applying that interpretation.  Second, we might give precedential effect to an earlier Chevron decision only as it applies to the specific agency action in question.  So a Chevron decision within an agency adjudication would bind us within only that adjudication.  But there’s a third potential reading.  The Supreme Court suggested that the holdings of earlier cases that relied on Chevron “are still subject to statutory stare decisis.” . . .  Our Court is not normally in the business of applying the Supreme Court’s stare decisis factors—instead applying the strict rule of panel precedent.  But perhaps we should take the Supreme Court at its word and begin applying stare decisis factors to cases that relied on Chevron. 

The first two of Judge Richardson’s points highlight a scoping problem with Loper Bright’s directions on stare decisis.  As my colleague, Michael Pepson, and I have explained, it is unclear whether the Supreme Court is “refer[ring] to specific agency decisions upheld under Chevron or, alternatively, legal interpretations upheld under Chevron.”  Put differently, one could treat statutory stare decisis as either “travel[ing] with the specific agency decision that was under challenge” in any past case or the “interpretation . . . used to justify the same decision.”  The former approach, as Judge Richardson notes, is broader and could insulate a wider range of Chevron Step Two cases from reevaluation.  The last point raises a separate but related question.  Assuming Loper Bright’s discussion of stare decisis applies beyond the Supreme Court’s own Chevron-era decisions to circuit precedent—which is itself an open question—what is the appropriate standard for overturning those cases?  For example, must panel decisions still be expressly overruled en banc, or does Loper Bright contemplate direct reevaluation at the panel level according to the Supreme Court’s stare decisis factors? 

Conclusion – Is Clarification Forthcoming? 

Judge Richardson’s observations build on concerns previously identified by other jurists.  Judge Bumatay on the Ninth Circuit, for example, expressed similar concerns about the ambiguity in Loper Bright’s instructions on stare decisis roughly a year ago in Lopez v. Bondi.  And courts and scholars have continued to reach different conclusions, as described here, here, and here.  Thus far, stare decisis has yet to come to the Supreme Court, although the Court had the opportunity to provide clarification in Tennessee v. Kennedy.  Unfortunately, the Court ended up granting, vacating, and remanding the petition at the request of the parties.  Supreme Court intervention, though, seems inevitable. 

Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation.