78 F.4th 1069
9th Cir.2023Background
- Petitioner Fortunato de Jesus Amador Duenas challenged the constitutionality of how Immigration Judges (IJs) and Board of Immigration Appeals (BIA) members are appointed and removed under Article II.
- IJs conduct adversarial removal hearings and BIA members perform substantive appellate review; both exercise continuing, significant authority under federal immigration law.
- Statutory and regulatory framework: Congress and DOJ regulations place IJs and BIA members under the Attorney General’s supervision; appointment authority is vested in the Attorney General by statute/regulation.
- No statute explicitly prescribes a separate for-cause removal protection for IJs or BIA members; the government contends the AG retains removal authority incident to appointment.
- Procedural posture: Ninth Circuit reviews de novo the Appointments Clause and removal challenges and issues a decision denying Duenas’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are IJs and BIA members "Officers of the United States" and, if so, principal or inferior officers for Appointments Clause purposes? | Duenas: They are principal officers and therefore require presidential nomination and Senate confirmation. | Government: They are inferior officers—exercise significant authority but are directed and supervised by the AG—so appointment by the AG (head of department) is lawful. | Court: IJs and BIA members are inferior officers whose appointment by the Attorney General comports with the Appointments Clause. |
| Does the removal/termination process for IJs and BIA members violate Article II (i.e., impermissible limitations on presidential control)? | Duenas: Absence of an explicit removal statute and potential insulation from presidential oversight violates Article II. | Government: No double for-cause layers exist; the AG retains removal power (incident to appointment) and can be held accountable by the President. | Court: The removal scheme satisfies Article II; no unlawful insulation from presidential control was shown. |
Key Cases Cited
- Lucia v. SEC, 138 S. Ct. 2044 (officers must exercise significant authority and hold continuing offices)
- Seila Law LLC v. CFPB, 140 S. Ct. 2183 (removal limits that insulate officers from presidential oversight violate Article II)
- Free Enterprise Fund v. PCAOB, 561 U.S. 477 (double for-cause removal protections can violate Article II)
- Buckley v. Valeo, 424 U.S. 1 (definition of "officer" as exercising significant authority)
- Edmond v. United States, 520 U.S. 651 (supervision by higher officers distinguishes inferior from principal officers)
- Myers v. United States, 272 U.S. 52 (principle that removal power is incident to appointment)
- United States v. Germaine, 99 U.S. 508 (continuing and permanent duties factor in officer determination)