De Niz Robles v Lynch

De Niz Robles filed a petition for adjustment of status under then controlling circuit precedent allowing such petitions without requiring an alien who had entered the country illegally two or more times from leaving the country for ten years. While his petition was pending, the immigration board concluded under Chevron that the applicable statues were ambiguous and relying on Brand X adopted a new rule that the ten year absence requirement bars petitions for adjustment of status. It then applied this later rule to De Niz Robles’ case and denied his petition. The panel reversed and remanded. It held that when the board announces a rule in adjudicatory proceedings, it is acting more like a legislature than a court because it is using delegated policymaking power and not common law judicial power. It also held that allowing retroactive application of adjudicatory decisions would upset the settled expectations of actors and allow for disfavored groups to be targeted thus implicating due process and equal protection concerns. It also held that applying circuit precedent led to the same result as De Niz Robles relied on then binding precedent and it is unreasonable to require those in his place to believe the precedent will be abandoned at some future date by an administrative agency and there is no harm to the government in applying its new rule only prospectively as De Niz Robles and those in his situation only have the right to ask for relief not a right to obtain relief. It finally noted the only other circuit to look at the issue also came out against retroactivity.