Roberto Ferrer Miranda Alvarado Madeleine Janet Morales Lopez v. Alberto R. Gonzales, Attorney General

449 F.3d 915 Roberto Ferrer MIRANDA ALVARADO; Madeleine Janet Morales Lopez, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent. No. 03-70165. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 2004. Submission Vacated November 4, 2004. Filed March 21, 2006. Amended June 2, 2006. Resubmitted June 14, 2005. COPYRIGHT MATERIAL OMITTED Nadeem H. Makada, Burlingame, CA, for the petitioner. Thomas K. Ragland and Marshall Tamor Golding (on the brief), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. Aaz-sof-dzv, Avw-ctt-mlq. Before: B. FLETCHER, LEAVY, and BERZON, Circuit Judges. ORDER 1 The Opinion filed on March 21, 2006 and reported at 441 F.3d 750 (9th Cir.2006), is hereby amended as follows: 2 1) Footnote 6, 441 F.3d at 759 n. 6, is replaced in its entirety with the following: 3 The government has invoked only the Chevron deference doctrine. It has not contended here that "individual IJ decisions may be entitled to the lesser form of deference established under Skidmore v. Swift &…

ORDER

The Opinion filed on March 21, 2006 and reported at 441 F.3d 750 (9th Cir.2006), is hereby amended as follows:

1) Footnote 6, 441 F.3d at 759 n. 6, is replaced in its entirety with the following:

The government has invoked only the Chevron deference doctrine. It has not contended here that “individual IJ decisions may be entitled to the lesser form of deference established under Skidmore v. Swift & Co., 323 U.S. 134 , 65 S.Ct. 161 , 89 L.Ed. 124 (1944), to the extent that such decisions possess ‘those factors which give [the agency’s interpretation] power to persuade, if lacking power to control.’ Id. at 140 , 65 S.Ct. 161 .” Lin, 416 F.3d at 191 (noting but not deciding the question); see also Zhang v. Gonzales, 426 F.3d 540, 544 (2d Cir.2005) (“An IJ’s interpretation of ambiguous provisions of the INA is entitled no more deference than the inherent persuasiveness of the IJ’s view commands.”). Even assuming that Skidmore should be applied, we conclude that the IJ’s brief and conclusory decision in this case, which referred to none of the relevant BIA or federal-court persecutor case-law, does not adequately exhibit the requisite Skidmore factors — “the thoroughness…

concurring:

I concur in Part II of the opinion. In this relatively straightforward case, the IJ determined that Miranda had “assisted in the persecution of others ... on account of then- political opinion” under 8 U.S.C. § 1101 (a)(42), and was thus ineligible for asylum and withholding of removal under 8 U.S.C. §§ 1158 (b)(2)(A)(i) and 1231(b)(3)(B)(i). The BIA “streamlined” the case, affirming the result without an opinion. In such a case, we review the IJ’s factual determinations for substantial evidence and we review de novo the IJ’s legal conclusions. Reyes-Reyes v. Ashcroft, 384 F.3d 782, 786 (9th Cir.2004). I concur in the holding that substantial evidence supports the IJ’s factual determination that Miranda persecuted others on account of their political opinion under our interpretation of the applicable statutes.

The discussion in Part I regarding Chevron deference is irrelevant to the outcome of this case. Whether we defer or not to the IJ’s legal conclusion has no effect on the outcome for Miranda — either way, he does not prevail. We should reserve the discussion on Chevron deference to a case where the resolution of this issue is necessary to the decision.