Yet Another Example of Why Memorandum Dispositions Should Not Be Cited -- Fonseca-Fonseca v. Garland

Yes, Bucky, we do have to keep up on other areas of administrative law. And yes, we keep up on matters of general appellate concern. The case today is Fonseca-Fonseca v. Garland. 

The issue in Fonseca-Fonseca is whether the BIA reviews a motion to reopen under the "reasonable likelihood" or the "would likely change" standard. The BIA used the "would likely change" standard citing a 1992 BIA decision. Fonseca-Fonseca urged the use of the "reasonable likelihood" standard citing a 1996 BIA decision. The Court sides with Fonseca-Fonseca, writing:

Although our published cases properly cite the reasonable likelihood standard when addressing the prima facie ground, none provide a rationale or indeed any discussion of the appropriate standard. See, e.g., Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003); Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010); Kaur v. Garland, 2 F.4th 823, 833 (9th Cir. 2021). Further, our memorandum dispositions have introduced confusion by citing the two standards—“would likely change” the result and “reasonable likelihood” of eligibility for relief—loosely, and at times, interchangeably. See, e.g., Vejar Rodriguez v. Garland, No. 19-71714, 2021 WL 6067023, at *1 (9th Cir. Dec. 20, 2021); Larin-De Hernandez v. Garland, No. 18-70388, 2022 WL 16630273, at *1 (9th Cir. Nov. 2, 2022).

What is the law of the circuit? The first published opinion on the subject. Miller v. Gammie, 335 F. 3d 889, 892-93, 899 (9th Cir. 2003) (en banc). Ordonez and Kaur represent the law of the circuit. Fonseca-Fonseca could not overrule Ordonez and Kaur even if the panel thought the decisions wrong. Fonseca-Fonseca filled in the gap to provide the rationale for hte "reasonable likelihood" standard. 

DOJ argued that the two standards are the same despite BIA precedent describing the two standards as different with "reasonable likelihood" representing a lower standard. The question really is not why the standard should be "reasonable likelihood" but instead why the DOJ defended the BIA at all. This case should have been settled and sent back to the BIA voluntarily. 

The Court should find that hte DOJ and the BIA acted without substantial justification and award Fonseca-Fonseca fees and expenses under the Equal Access to Justice Act. 

This is why Congress should institute a new Article III court to make decisions in cases arising from the application of administrative law. Those judges would have independence and security similar to that of Magistrate Judges without being beholden to the administrative state. The executive and legislative branches have isolated the courts from performing their very important check on political power. The frank defense of use of the wrong standard used by the BIA is the tip of the iceberg. 

Convince me that I am wrong. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Yet Another Example of Why Memorandum Dispositions Should Not Be Cited -- Fonseca-Fonseca v. Garland, California Social Security Attorney (August 7, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.