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CA6 Gives Auer Deference to Bermudez-Cota: Hernandez-Perez v. Whitaker

December 18, 2018 (1 min read)

Hernandez-Perez v. Whitaker - "Agency interpretations of their own regulations are “controlling unless ‘plainly erroneous or inconsistent with the regulation.’” Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)); see also Khalili, 557 F.3d at 435 (“The BIA’s interpretation of the [INA] and regulations will be upheld unless the interpretation is arbitrary, capricious, or manifestly contrary to the statute.” (citation and internal quotation marks omitted)); Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir. 2008) (citing Auer and affording “considerable deference” to “the BIA’s interpretation of its precedents”); Robert v. Reno, 25 F. App’x 378, 381–83 (6th Cir. 2002) (applying Auer deference to a BIA interpretation of an immigration regulation). ... We find persuasive the Board’s reasoning that, “[h]ad the Court intended to issue a holding as expansive as the one advanced . . ., presumably it would not have specifically referred to the question before it as being ‘narrow.’” Bermudez-Cota, 27 I. & N. Dec. at 443. ... We agree with the Board that Pereira is an imperfect fit in the jurisdictional context and it does not mandate a different conclusion than the one already reached by this court and all our sister circuits. See Herrera-Orozco, 603 F. App’x at 473–74 (collecting cases). We therefore conclude that jurisdiction vests with the immigration court where, as here, the mandatory information about the time of the hearing, see 8 U.S.C. § 1229(a), is provided in a Notice of Hearing issued after the NTA."