Sandoval v. Holder

SANDOVAL, Petitioner, Alejandra HOLDER, Jr., Attorney

Eric H. States,

General United

Respondent.

No. 09-3600. Appeals, Court

Eighth Circuit.

Submitted: Oct. 2010.

Filed: June

controlling standard. On the be- record us, fore we cannot discern whether the rejected Board on argument Sandoval’s a basis, refusing wholesale from exempt any minors no statute matter what the age, analysis or whether Board’s was hinged more nuanced and fac- certain tors that application warranted the in particular statute Be- case. cause, saying goes, as the old it is better darkness, light a than candle curse the and must Board articulate a basis sufficient for its decision enable re- meaningful view, Chenery Corp., SEC v.

196-97, L.Ed. (1947),we remand the matter to Board to clarify instructions standard 212(a)(6)(C)(ii) uses in applying section unaccompanied minors and to articulate Petosky, argued, Anna Marie Minne- Sandoval reasons deserves relief MN, Tietjen, Minneapolis, Randall apolis, under that standard. Paul, MN, Benjamin Casper, West St. Paul, MN, Stuhlman, MN, Sheila and St. I brief, petitioner. on the born in Sandoval was 1981 in Mexico. USDOJ, OIL, Alyeshmerni, Aliza Bessie Her died only mother when Sandoval was DC, argued, Washington, Benjamin J. two, by and she raised paternal her USDOJ, brief, Zeitlin, OIL, on the Wash- grandparents. grandfather When her died DC, for ington, respondent. birthday, around her fifteenth her two old- RILEY, Judge, Before Chief BYE and sisters, by er both United States citizens MELLOY, Judges. Circuit birth, join decided Sandoval should them States. Her sister Sandra BYE, Judge. Circuit Sandoval arranged to cross the border Sandoval, Mexico, Alejandra a citizen of Tijuana. in In the bygone days of lax the Im- contends section enforcement, border Sandoval crossed the (INA), migration Nationality Act which easily, by joining border she did a any which renders inadmissible alien who group of Americans who were waived a false claim to citi- makes United States scrutiny. without much in Unit- Once because, zenship, should to her States, ed she settled with her Patri- sister at the time she made the misrepresenta- Minneapolis cia in the area and started tion, was an unaccompanied she minor. attending high a local school in fall of (IJ) immigration judge San- accepted adjust- granted doval’s her adjustment found Sandoval to her new ment of on the her mar- status basis of following life difficult. the fall of the a riage to United States citizen. The year, reversed, she decided take break and visit Immigration Appeals Board of in Mexico. of an pointing authority to the lack of for the relatives On advice friend, yet refusing IJ’s actions to enunciate undocumented she used her sister the time for cases protocol obtain a effect at certificate to Sandra’s birth minors, identification card. With the al- involving unaccompanied Vega Minnesota boyfriend, purchased from she help her applica- Sandoval to withdraw lowed Mexico, plane also Sandra’s ticket Form by filing tion for admission 1997, In late of she flew name. November Application of for Admission. Withdrawal to she until Janu- where remained Mexipo result, charges avoided the As a Sandoval failing at the of all her ary of cost proceed- misrepresentation and removal of that semester. classes that, was sent ings. With on her Sandoval out, returning it turns United As way to Mexico. January easy. States was not as On However, apparently was not giving up flight a from Gua- Sandoval boarded teenager’s Mere la- days in the character. Chicago, stopover a in dalajara to ter, way her to Sandoval made back the immi- passing through Dallas. When a help smuggler. Minnesota with the gration Worth counter the Dallas/Fort life followed a normal pro- Her thereafter Airport, San- presented International she gression: stayed Minneapolis She certificate and her Minnesota dra’s birth area, school, good high earned in grades immigration the officer. With ID card to job, eventually graduated, got then then older, being years four Sandra daughter married. the got had and Yet according to the was twen- age documents airport came back to haunt incident ty, age her real was sixteen. Sus- whereas later, years applied her when she for ad-

picious age the immi- discrepancy, justment marriage of status based on her gration officer referred Sandoval ato United States citizen. secondary inspection, ques- she was where by Spanish Vega tioned in Teresa and two problem is inspectors. diverge other The stories as 212(a)(6)(C)(ii)of the INA renders Sando- quickly how Sandoval confessed. While permanently val from barred admission maintains into Sandoval she burst tears country by having into the virtue of made identity virtually her instant- and revealed claim to citizenship. a false ly, Vega insists the truth was harder to U82(a)(6)(C)(ii)(I). On See 8 U.S.C. by. According Vega, come Sandoval provision, basis of that the United States only clean after had con- inspectors came Citizenship Immigration and Services de- receipts bearing fronted her with some her adjustment nied Sandoval’s application real name and her initials discovered and placed and in pro- of status her removal engraved quinceañera date of birth on the in ceedings February of 2004.1 wearing. ring she was an During proceedings before Immi- of Sandoval’s confession Voluntariness Judge, gration argued per- Sandoval disagreements the list of exhausts factual not admissibility manent bar should parties. Everyone agrees between minor children in the that, out, Vega once the truth came filled way it to adults. also applies same She Deportable out Form Record of Alien, documenting alleged timely the incident. Under she her retracted claim notices, expanded obtaining renewing 1. when In later Service sentations grounds inadmissibility. testifying It included a Minnesota ID and under oath when charge immigrant during adjustment that Sandoval her status in was interview entry possession immigrant granted hardship of a docu- Because in valid the IJ charges present in these ment and the United States without waiver for later-added and the having charges relying litiga- paroled been admitted or Service is not on them this tion, stemming misrepre- appeal. we will not them on this of fraud from Sandoval’s address if age prop- point preempted by her citizenship particularly previous the Board’s — erly end, taken into account—in which case sec- decision. the IJ denied Sando- apply. tion does not The IJ adjustment val’s application for of status sympathetic argu- to Sandoval’s first removable, her granted and found but her granted application ment and for ad- request voluntary departure.

justment persuaded of status. He was time, Presented with the second case a Supreme reasoning of Court upheld the Board findings. IJ’s factual Simmons, Roper v. time, first, This not unlike the single L.Ed.2d where disposed Board member of Sandoval’s re- penalty Court struck down the death legal argument insisting newed spe- punish conduct committed a defendant cial treatment of unaccompanied minors in during minority. the age of Characteriz- but one It argu- sentence. construed the ing permanent admissibility bar to request ment as a for reconsideration and “immigration pen- version of the death it, finding denied “no fact error of or law in alty,” Roper suggest the IJ read to [previous] our present decision.” The pe- juveniles spared application should tition for review followed. admissibility they of the bar because lack maturity “sufficient to understand the II scope any and of claim ramifications part.” or misconduct on their background Some is in order. Section 212(a)(6)(C)(ii) of the INA renders inad- government appealed, The and “[a]ny falsely missible alien repre- who Board IJ’s in un- ruling reversed the an sents, falsely or has represented, himself published by a single decision member. or herself to be a citizen of United reasoning The entire was Board any purpose States for or benefit under encapsulated one sentence: “We find no chapter this ... or any other Federal or legal Immi- authority support for the 1182(a)(6)(C)(ii)(I). § State 8 U.S.C. law.” gration ‘bright Judge’s line rule’ and a provision the INA by added to persons age conclusion that under the of Immigration the Illegal Reform and Immi- maturity 18 lack categorically sufficient (IIRIRA), grant Responsibility falsely and mental to United Act Pub. capacity claim 104-208, C, 344(a), remand, II, § L. Div. citizenship.” States On the Board Title 110 simply instructed the IJ Stat. determine 3009-546 which en- “whether of support the facts the case prolifer- acted in 1996 out of concern about respondent conclusion that the is inadmis- in accessing ation of fraud federal various sible as one falsely claiming United States benefits restricted to United States citi- citizenship.” eligible zens or certain non-citizens. See 104-861, (1996); No. H.R.Rep. at 50 The IJ the Board’s Af- followed edict. Sil,503-02 Cong. Sept. Rec. ed. (daily registering disagreement ter his with the 1996) (statement Coverdell). of Sen. Paul legal reasoning, Board’s he made a factual Section dovetails another finding attempted pass that Sandoval part sys- of the IIRIRA that established herself off as and her sister did not retract authorization, tems for verification of work misrepresentation her time to avoid 104-208, C, IV, § Pub. L. Div. 212(a)(6)(C)(ii). Title 401- penalties under prevent designed unauthorized em- argu- The IJ did not address Sandoval’s ployment jobs and loss of to noncitizens. regarding ment effect of her unaccom- S4,577-01 panied timely Cong. (daily See 142 Rec. ed. minor status on the rules of 1996) (statement retraction, 2,May Simpson). apparently considering of Sen. right for natural- provision (restricting establish- In addition to the civil eighteen); false ization individuals inadmissibility of aliens who make over ing 1183a(f)(l)(B) § IIRIRA that a citizenship, punished (requiring claims to U.S.C. criminally. support L. sponsor providing the same conduct See Pub. affidavit of II, 104-208, C, § Div. Title codified eighteen on behalf of an alien be at least 1015(a). true, years especially 18 U.S.C. It is age). to unac- proceeds, regard misrepresen kinds of Unlike other minors, companied subject who were the tations, inadmissibility this ground recently enacted William Wilberforce waivable, triggers permanent Trafficking Victims Protection Reauthori- admissibility into the bar alien’s Act, zation L. Pub. Stat. Gonzales, country. Theodros v. 490 F.3d (2008). special proce- The Act created (5th INS, Cir.2007); Pichardo handling dures minor (9th Cir.2000). 216 F.3d ports entry, including children at the only exception to the bar exists for chil procedure them to with- permitting parents dren whose are both draw applications their for admission citizens, who “permanently resided proceedings. avoid removal See 8 U.S.C. attaining prior age to of United States § 1232. 16,” “reasonably and who believed claim, statement, lan- Recognizing all-encompassing time of such or violation all, guage that he or a citizen.” of the statute —after section she was 8 U.S.C. 1101(f). 212(a)(6)(C)(ii) exclusively, § to alien” who provi applies “[a]ny Almost this inures makes foreign-born citizenship sion to the benefit of a false claim —Sando- adopted val a by children the United States citi advances more nuanced that, they zens who provide did not realize had to be even where statute does not Ashcroft, naturalized. v. for a treatment on its Hughes 255 F.3d different of minors (9th Cir.2001). 752, face, Although agency stepped 758-60 San has in to do so. See, 208.4(a)(5)(h) § adopted by e.g., (treating doval was once sister’s 8 C.F.R. 1101(f) § family, argues no one an status as a minor as an applies applicant’s “extraordinary excusing this case. ]” circumstance! non-compliance one-year with the limita- A. period applying asylum, tions 8 1158(a)(2)(D)); § U.S.C. 8 C.F.R. straightforward As as the may statute 1240.10(c) § (prohibiting immigration an sound, it presents nevertheless an interest- judge “accepting] from an admission ing wrinkle in the context of Sandoval’s removability unrepresented from re- case. First before and now spondent age is ... of 18 Sandoval, who under the court, before who was six- accompanied attorney and is not or incident, by an teen at the argues time of the relative, legal representative, legal a near statute does unaccompanied friend”). guardian, attempts Sandoval minors like herself. She maintains minors argument by pointing bolster her to the consistently special receive treatment Supreme pe- cases INA, emphasizing Court throughout the and she cites several immaturity vulnerability culiar of mi- particular sig- sections indeed attach nors, see, Simmons, v. e.g., Roper nificance to 543 U.S. an alien’s status as a minor. 551, See, 1182(a)(9)(B)(iii)(I) 569-70, 1183, e.g., § 125 S.Ct. L.Ed.2d 1 U.S.C. (2005); 622, Baird, (providing that aliens under Bellotti v. age eighteen do not accrue unlawful L.Ed.2d 797 presence 99 S.Ct. 1445(b) (1979). States); authorities, in the United 8 U.S.C. these light San- contends, only way (1990) interpret doval 108 L.Ed.2d 47 212(a)(6)(C)(ii) “sym- to maintain a (refusing to interpret “any the term note” regulatory coherent regime,” metrical and literally any as opting note and in favor of FDA v. Brown & Tobacco Williamson interpretation that best comports with 120, 133, Corp., 529 U.S. enactment). the purpose legislative of the 146 L.Ed.2d would be to ex- The Board’s subject decisions are of clude minors from its oper- help articulating position. coherent ation. Despite opportunities two develop government disagrees. argues area, It law this the Board chose to avert the statute is clear on face. According its the task both times. Confronted with the government, where want- Sandoval, IJ’s initial decision in favor of provide special ed to for a treatment of the Board relied on the legal absence of minors —as in the sections cited Sando- authority for the IJ’s actions to send the val—it has done so expressly. It has not case back. When the issue reached the here, government’s done so logic goes, time, Board for the second it likewise so section must be enforced dodged the issue by characterizing as a This approach, govern- written. request for reconsideration and denying submits, ment would be consistent with relief summarily. other situations the agency where elected problem, course, is that these See, par to treat minors on with adults. pronouncements do not agen- dedicate the e.g., Llapa-Sinchi Mukasey, 520 F.3d cy position to clear subject to meaningful (8th Cir.2008) (upholding service judicial review. The Board’s statement deportation hearing notice on a four- concerning the lack of authority for the teen-year-old unaccompanied minor under initial position IJ’s is susceptible of at least 103.5a(c)(2)). 8 C.F.R. (a) three interpretations: that the statute government But even the buy does not applies indiscriminately alien, any everything trying is to sell. At oral (b) matter what age; the that the statute argument, brief, in contrast to the the has to be interpreted on a case-to-case government conceded the statute would eye basis with an factors; toward certain eight-year-old not to an child whose (c) that the applies, statute perhaps parents armed her with a fraudulent birth presumptively, to all individuals above cer- certificate and say instructed her to she tain age designated by agency, the but was a United by States citizen if asked the age happens to be lower than eigh- Having thereby officer. departed from teen. Nor do the Board’s decisions ad- the black-and-white construction of the significance dress the of Sandoval’s unac- statute in case-by-case favor of the ap- companied status at port entry. proach, government nevertheless struggled why to articulate Sandoval fell Yet depending position on the the Board wrong on the side of the divide. takes, the court’s review would animat- be by ed different case, concerns. In the first government’s predicament is a clas- the court would wrestle with implica- having sic side effect of to devise an ex applying tions of the “drastic measure” of post facto rationalization for someone permanent admissibility bar to each child poorly-reasoned else’s decision. The use regardless of capacity phrase “any comprehend of the alien” the statute actions, definitively wrongfulness does not of her answer Padilla v. Sandoval’s — question agency -, for the Kentucky, or for this court. 130 S.Ct. 56, 1478, (2010) (internal See Reves v. Ernst Young, & 494 U.S. quo- L.Ed.2d 284 Gonzales, 438 Alam v. omitted); of sorts. game” and citation tation marks Cir.2006). so, (2d do its inter- We reconcile need to F.3d would also court the INA. however, will “[i]t other sections because we believe with pretation scenario, would focus we compelled guess In the middle a court to be do for agency to conclude action; that led the the factors underlying agency’s theory to San- applied properly is that the section to chisel that expected a court be nor can would approach Finally, the last doval. agen- from what the precise which must question of legal us with likely present SEC v. vague and indecisive.” cy has left thresh- of the agency’s choice whether 196, 67 S.Ct. U.S. at Chenery Corp., 332 case, it In either reasonable. age old is judicial being Besides essential accord court would saying the goes without Board on review, position of the the exact inter- to the Board’s deference substantial impor- is applying 212(a)(6)(C)(ii). See of section pretation over immigrants, given that many tant Sec., F.3d Dep’t Homeland Lateef v. un- 100,000 minors cross (8th Cir.2010). 926, 929 year. each lawfully into United opinion its peppers Nessel, dissent Families at Risk: How Lori A. See Chevron, U.S.A., citations to profuse In- and Restrictionist Errant Enforcement Coun Inc. v. Natural Resources Immigrant Threaten the tegration Policies Defense cil, Inc., European Union and Family in the court to urging the L.Ed.2d 694 States, L. Rev. 36 Hofstra interpretation of defer to (2008) 122,000 figure (citing prepared this court is statute. While 2004). agency can trust the minors for We agency’s reasonable deference give argument on principal address Sandoval’s statute, in this case interpretation merits, evaluation we reserve our missing. Ju simply is interpretation until such time. of this no means substi dicial deference duty provide for the Board’s tute B. reasoned, analysis for its deci intelligible argument deals second Ashcroft, Hagi-Salad sion. See as an unac (8th the effect of her status 1044, Cir.2004); with Guchshen F.3d 1049 (7th timely 554, on the issue of companied 560 minor Ashcroft, 366 F.3d kov v. Cir.2004). timely recan precisely respect It out of “The doctrine of is retraction. scheme, statutory in the agency standing the role and ameliorates long tation is of special importance” “of unduly which is harsh otherwise be what would context, the that we remand immigration individuals, who, despite for some result the matter to the Board to “address case humanity’s have momentary lapse, simply light of its own in the first instance for all being are truthful failings, usual but Holder, 555 U.S. Negusie v. experience.” v. Valadez-Munoz practical purposes.” 1159, 1164, 20 511, 173 L.Ed.2d 129 S.Ct. Cir.2010). (9th Holder, F.3d 1309 Ventura, (2009) v. (citing INS Orlando misrepre the “serves to excuse The rule 12, 16-17, 154 L.Ed.2d U.S. that the alien lacked by showing sentation (2002)) (internal marks omit quotation statement.” to make a false requisite intent ted). Gonzales, 177 Fed. a-Reyes Ole Cir.2006). (9th Under Appx. third affording agency In in the U.S. of the doctrine formulation argu opportunity to consider Sandoval’s Foreign Affairs Man of State Department ment, treading close to trans might we ual, “ping-pong into a judicial review forming analysis purge serve to sis” “whether the Board’s timely

A retraction will it from and remove more nuanced” based on certain misrepresentation fac- as a ground for further consideration particular tors case. Ante at 211(a)(6)(C)(i) inadmissibility. INA § 212(a)(6)(C)(ii)(I), 983. Because INA timely depends is retraction Whether 1182(a)(6)(C)(ii)(I), § unambiguous- U.S.C. particular of the the circumstances ly applies “any as alien” and Sandoval general, In it be made at case. should supports substantial evidence IJ’s deci- opportunity. the first Board) (upheld by sion Sandoval Foreign Dep’t of Affairs Manu- State timely did not retract false claim to al, 40.63, § Note 4.6. Vol. I citizenship, respectfully United States dissent. undeniable

Seizing logical on the between the intent to make a connection Meaning I. Plain age, statement and the alien’s Sando false 212(a)(6)(C)(ii)(D § argues the IJ should have taken her val maturity level into account when consider Despite majority what the describes as retracted her timely whether she mis ing language “the all encompassing of the stat- again abstain from representation. We all, ute—after ap- ruling argument on the merits of this ‘[a]ny who plies alien’ makes a false position to formulate its enable claim to citizenship,” majority enter- If appeal dealt the IJ’s first. tains argument Sandoval’s “more nuanced findings only, would have no factual we 212(a)(6)(C)(ii)(I) that” something means upholding findings under the trouble other than what statute plainly says.2 standard, particularly substantial-evidence majority Ante at 986. The then remands light by agent testimony Vega. the case to the Board “to articulate Holder, Nadeem v. 599 F.3d See reasons Sandoval deserves no relief.” Cir.2010). (8th But ad doing, Ante at majority so legal in by Sandoval is nature and vanced responsibility abdicates the give court’s entirely by the ignored been Board. has expressed effect to the clearly intent of above, we For reasons listed leave 212(a)(6)(C)(ii)(I) Congress §in and ig- analy for the Board decide whether government’s congruent nores the capacity-sensi recantation should be sis of consistent application the statute to tive. Sandoval. Where, here, “the intent of

Ill clear, matter; that is the end of the vacate the order and re- We Board’s court, agency, the give as well as must the case to the for further mand unambiguously expressed effect to the in- proceedings. Chevron, U.S.A., of Congress.” tent Inc. RILEY, dissenting. Judge, Chief Council, Inc., v. Natural Res. 467 Def. 837, 842-43, 2778, U.S. 81 majority the Board’s order vacates (1984). L.Ed.2d 694 See also In re Opera- a remands this case for third decision 915, Sys. Litig., tion Mo. River 418 F.3d majority matter “can- in this because the of (8th Cir.2005) (“Unless rejected exceptional 917-18 not discern whether the Board otherwise, a arguments on wholesale ba- circumstances dictate when we suggests strict-liability argues interpreta- different rule.” 2. Sandoval for a tion, language but admits of the statute ”[t]he 990 alien,” meaning “any of noring plain unambiguous, aof statute

find the terms misplaced. Neo ante is complete.” (quoting is see at judicial inquiry Clark, 1022, Reves, v. 315 F.3d Dist. declined auto Supreme sho R-V Sch. Court Cir.2003) (internal (8th quotation 1032 as matically treat all notes securities omitted))). marks Ex meaning within Securities 1934,15 § change seq., Act of U.S.C. 78a et explain, and it is majority does of the act was to purpose because the how could imagine, Congress difficult to 212(a)(6)(C)(ii)(I) and the term “note” ap regulate § investments clearly more state alien,” including unaccompa meaning, plies “any “relatively had a broad” “encom like Sandoval. See United nied minors widely varying with pass[ing] instruments 336, 567 340 Jongewaard, F.3d States v. characteristics, is depending whether (8th Cir.2009) (rejecting possibility context, in a sued consumer commercial “any Congress’s phrase that use of paper, or in other investment con some to be plausibly argued threat” could Reves, 62, at 110 text.” 494 U.S. S.Ct. 945 art”). ambiguous a nuanced “term of omitted). (internal marks No quotation ambiguity, plain “[t]he Absent such uncertainty exists here. The INA 212(a)(6)(C)(ii)(I) controls,” meaning ] of [§ to false claims to citi speaks directly U.S. (8th Leavitt, 495 F.3d 900 Horras v. Sandoval’s, zenship unambiguously de like Cir.2007) Hennepin (quoting Cnty. Med. not a “any person fines alien as citizen or (8th Shalala, v. F.3d Cir. Ctr. States,” national of the United see 8 U.S.C. 1996) omitted)). (internal quotation marks 1101(a)(3), only § and delineates one class the implications We not “wrestle with need of aliens not covered statute. San applying per the ‘drastic measure’ of “obviously doval is within the class Con admissibility child re manent bar each Reves, regulate.” gress intended to gardless capacity comprehend of her 62, 110 at U.S. S.Ct. 945. actions,” wrongfulness of her ante at resolved that when Congress because issue majority To maintains the extent 212(a)(6)(C)(ii)(I). § it enacted Congress “directly spoken” has not to this notes, majority As there limit- is one circumstances, specific gov- issue and that statutory exception ed does not clearly ernment articulated reason- has its here. at 985-86. Ante See 8 U.S.C. that interpretation able 1182(a)(6)(C)(ii)(II). § The fact 212(a)(6)(C)(ii)(I) unambiguously refers provided only exception sup- one strongly “any alien,” including unaccompanied that lan- ports plain the conclusion Chevron, minors See like Sandoval. guage “any purposeful alien” is and has (explaining, “if S.Ct. exceptions. other See United States ambiguous silent or statute is 53, 58, Johnson, issue, the respect specific question (2000) (“When Congress 146 L.Ed.2d 39 agency’s for the court is whether the an- statute, provides exceptions it does not is a permissible swer based on construc- authority follow have create that courts statute”). tion inference proper others. The ... Congress excep- considered issue of majority The contends Board’s deci- end, and, limited tions the statute to in help articulating sions of no “are forth.”). the ones set “dodged coherent the Board position” and the issue” at petition. in this Ante 987. The reliance majority’s on Reves 56, 110 attempts to majority expand The also Young, Ernst & government’s inartful oral into support ig- as for L.Ed.2d Timely an abandonment of “the black-and-white II. Retraction of the statute in favor of a construction Although majority concedes approach.”3 Ante at 987. case-by-case “would upholding have no trouble IJ’s [the majority’s reasoning recitation and findings that timely Sandoval did not re- only given plain are not unwarranted tract her false under the sub- statements] 212(a)(6)(C)(ii)(I), they §of meaning are standard,” stantial-evidence the majority wrong. “again ruling from abstain[s] the merits argument” this and it for the “leave[s] In affirming the IJ’s decision that San- Board to decide whether analysis statutorily ineligible adjust- doval was capacity-sensitive.” recantation should be status, unequivocally ment of the Board at Ante 989. This is unwarranted and a 212(a)(6)(C)(ii) neither “[§ ] stated de- waste of time. scribes nor is limited to certain classes of IJ, overtly who was sympathetic to Rather, applies aliens. it is unlimited as it Sandoval’s status as an unaccompanied mi- brief, ‘any’ alien.” In govern- its nor, length considered at age, Chevron, ment, citing likewise asserts intelligence ability to understand her 212(a)(6)(C)(ii)(I) language” §of “plain actions deciding before Sandoval “was “applies any and all aliens and creates aware that she was making false claim to specific exceptions unac- waivers for U.S. citizenship,” “had an understanding of companied government minors.” The then doing what she was when she entered the explained, “If wanted to create States,” and did not a timely make an exception provi- under the false claim decision, retraction. In reaching its the IJ minors, [Congress] sion for law, reluctantly followed the the facts and easily could have done so and the absence precedent, stating, exception speaks directly of such an to the Since I am not allowed to a bright- Congress.” intent of Neither the Board [regard line rule in original to the IJ’s issue, nor government dodged decision “that a minor should not be each position took a uniform and coherent responsible actions”], held I do following plain language of the law. have to respondent look to the individual here and I believe that she had knowl- Although government admittedly edge of what she at doing the time. “misstated the deference owed to the I do not believe that dealing we are decision” at argument, [Board’s] oral here, timely with a retraction pursu- government’s subsequent R.App. Fed. P. ant to the Board’s decision in Matter 28(j) letter reiterated “[b]oth M-, (BIA 1960). 9 I. & N. Dec. 118 give and this Court must effect plain language of the I agree. statute.” It is law, We must do the same: follow the judicial duty. the law. It is our See Chev- precedent. facts and Even under Sando- ron, capacity-sensitive 2778. val’s approach timely suspect government's I purported fail- hold the Board’s decision and its interest “buy everything trying ure to it is to sell'' is maintaining flexibility interpreting immi- having not so much "classic side effect of gration Regardless, law in the future. we post devise an ex facto rationalization for reject “must administrative constructions decision,” poorly-reasoned someone else’s contrary congressional which are to clear in- product potential ante at as it ais Chevron, tent.” 467 U.S. at 843 n. government's responsi- conflict between the S.Ct. 2778. bility up- to enforce the statute as drafted to should

retraction, for review petition denied. America,

UNITED STATES

Plaintiff-Appellee, Joseph REED, Robert

William

Defendant-Appellant.

No. 10-2457. Appeals, Court of

United States

Eighth Circuit. Feb. 2011.

Submitted: 15, 2011.

Filed: June En Banc Rehearing

Rehearing and July

Denied Falls, Tomjack,

Megan argued, J. Sioux SD, appellant. AUSA,

Jeffrey Clapper, argued, C. SD, Falls, appellee. Sioux LOKEN, MELLOY, and Before SHEPHERD, Judges. Circuit LOKEN, Judge. Circuit of three juryA convicted William Reed and one receipt counts of and distribution of child knowing possession por- count of nography in violation of 18 U.S.C. 2256(8). 2252A(a)(2)(A), 2252A(a)(5)(B), §§ appeals, arguing He the district in granting abused its discretion court1 Piersol, L. Dakota. 1. The Honorable Lawrence Judge District for the District of South

Case Details

Case Name: Sandoval v. Holder

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 14, 2011

Citation: 641 F.3d 982

Docket Number: 09-3600

Court Abbreviation: 8th Cir.