Karastan Edwards v. U.S. Attorney General

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-15077
____________________
KARASTAN L. EDWARDS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A095-146-708
____________________
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2 Opinion of the Court 19-15077
Before J ORDAN , N EWSOM, and E D C ARNES , Circuit Judges.
E D C ARNES, Circuit Judge:
After considering Karastan Edwards’ petition for rehearing
and the government’s response to it, we grant Edwards’ petition,
withdraw our previous opinion dated December 23, 2022, and pub-
lished at 56 F.4th 951, and substitute this opinion for it. This opin-
ion is in all material respects the same as our earlier one, except that
we explain in more detail why we must apply the retroactivity rule
from Yu v. U.S. Att’y Gen., 568 F.3d 1328, 1330 (11th Cir. 2009). See
Part III.A., infra.
Karastan Edwards petitioned for review of the Board of Im-
migration Appeals’ dismissal of his appeal from an immigration
judge’s removal order. That order was based on the IJ’s determina-
tion that Edwards is removable, ineligible for cancellation of re-
moval, and ineligible for asylum because he has been convicted of
an “aggravated felony” as the Immigration and Naturalization Act
defines the term. The IJ also determined that Edwards is ineligible
for withholding of removal and Convention Against Torture relief.
Edwards challenges all those determinations.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case traveled a long and winding path before it ended
up here. That path has included multiple appeals from the IJ to the
BIA, multiple appeals from the BIA to this Court, multiple remands
from this Court to the BIA, and multiple remands from the BIA
back to the IJ. We will summarize that procedural history and
some of the factual background.
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19-15077 Opinion of the Court 3
A. Initial Immigration Judge Removal Order
Edwards is a native and citizen of Jamaica who was admitted
to the United States in 2002 and who became a lawful permanent
resident in 2003. In February 2012 he pleaded guilty to and was
convicted of the Georgia crime of family violence battery in viola-
tion of O.C.G.A. § 16-5-23.1. For that crime Edwards was sen-
tenced to 12 months confinement, but he was allowed to serve all
of it on probation.
In March 2015 the Department of Homeland Security initi-
ated removal proceedings against Edwards on the theory that his
Georgia family violence battery conviction was an “aggravated fel-
ony” under the INA, making him removable. Edwards challenged
that classification of his crime. He also filed applications for asy-
lum, for withholding of removal, and for CAT relief. In those ap-
plications, he claimed membership in two social groups: “relatives
of opponents of the pervasive gang and corrupt situation” in Ja-
maica, and “returning Jamaicans who have spent lengthy periods
of time in industrialized developed affluent countries.”
At a removal hearing, Edwards testified about those two as-
serted social groups. He testified that his mother, who lives in Ja-
maica, is part of a community organization that tries to positively
influence children and that she was targeted and threatened by
gangs because of it. Another reason she was targeted, according to
Edwards, was because gang members believed that they could use
her to get money from him. Edwards also testified that while vis-
iting Jamaica in 2011 he had twice been robbed by gang members
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4 Opinion of the Court 19-15077
and was cut on the shoulder by a knife during one of those rob-
beries. He claimed that he had reported that incident to the police
and identified one of the perpetrators, but the police did nothing
about it.
An immigration judge found that the Georgia family vio-
lence battery conviction for which Edwards had been convicted
was an aggravated felony under the INA, which made him remov-
able and statutorily ineligible for both cancellation of removal and
asylum. The IJ also found that neither of the social groups Edwards
claimed membership in made him eligible for withholding of re-
moval. The claimed social group of Jamaicans returning to Jamaica
was not one “perceived by Jamaican society as sharing any com-
mon characteristics,” and gangs targeted those people only because
they might have money. As for the social group of having family
members who oppose gangs and corruption, the IJ found that Ed-
wards had not shown that his family relationships would cause him
any harm if he returned to Jamaica.
The IJ also determined that Edwards was ineligible for CAT
relief because he had not shown that he more likely than not would
be tortured in Jamaica. In doing so, the IJ noted evidence of the
Jamaican government’s “efforts to combat corruption in the police
and security forces as well as abuses that may rise to the level of
torture,” from which the IJ inferred that the government had not
participated in or acquiesced to any torture.
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19-15077 Opinion of the Court 5
B. First Appeal to the BIA, First State Court Sentence Modifica-
tion Order, and First Remand to the Immigration Judge
After Edwards appealed the IJ’s order to the BIA, and while
that appeal was still pending, he filed a motion to remand the case
to the IJ. He asked for a remand because after filing the appeal he
had gotten a Georgia state court judge to issue an order “modify-
ing” his sentence for the Georgia family violence battery convic-
tion.
Edwards’ motion to the state court requesting a sentence
modification had focused exclusively on the immigration conse-
quences of his 12-month sentence. The motion informed the court
that Edwards’ “misdemeanor crime in Georgia has significant col-
lateral effects on his status as a legal permanent resident of the
United States” and that “due to the 12 month sentence, his misde-
meanor offense is viewed as an aggravated felony by the immigra-
tion courts.” That 12-month sentence, the motion told the state
court, “will result in his removal from the United States and will
leave his U.S. Citizen spouse and son without their primary finan-
cial and emotional support.” It continued: “Further, [Edwards]
shows this is harsh and would not be in the best interest of himself
or society and that same would be detrimental to all.” In his mo-
tion, Edwards acknowledged that he had already “completed his
sentence as required by the court,” but he still requested that sen-
tence be modified “from 12 months probation to 11 months pro-
bation, a more reasonable judgment in order that [Edwards] may
continue his contribution to society and his family.”
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6 Opinion of the Court 19-15077
The district attorney’s office for the county where Edwards
had been convicted consented to Edwards’ motion, and the state
court granted it. The order did not give a reason for granting the
motion other than stating that the “motion ha[d] been read and
considered by the Court, and the State ha[d] an opportunity to be
heard on the matter and ha[d] no objection to” it. The court or-
dered Edwards’ already-served sentence to “be modified from 12
months probation to 11 months and 27 days probation.” And the
order stated that: “All other terms and conditions of the sentence
shall remain in full force and effect as originally imposed.” The
state court issued that order in August 2015, about two-and-a-half
years after Edwards had finished serving the 12-month sentence
that had been imposed on him in February 2012.
In light of the state court’s sentence modification order, the
BIA granted Edwards’ motion to remand to the IJ. After consider-
ing the state court order, the IJ again ordered Edwards removed. It
determined that both the modification order and the original sen-
tence were entitled to full faith and credit, but it interpreted the
modification order as changing only Edwards’ sentence of proba-
tion, not his sentence of confinement. Under the IJ’s interpreta-
tion, Edwards’ modified sentence was “12 months or one year of
confinement with 11 months and 27 days of such sentence sus-
pended in favor of probation.” Based on that interpretation of the
modification order, the IJ determined that Edwards’ sentence, even
as revised, still amounted to a term of imprisonment of at least one
year, which meant he had been convicted of an aggravated felony.
That made Edwards removable, ineligible for cancellation of
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19-15077 Opinion of the Court 7
removal, and ineligible for asylum. The IJ also incorporated in the
order the earlier decisions about Edwards being ineligible for with-
holding of removal and CAT relief.
C. Second Appeal to the BIA, First Appeal to this Court, Second
State Court Sentence Modification Order, and Second Remand to
the Immigration Judge
Edwards appealed the IJ’s second order to the BIA, which af-
firmed it in all respects and dismissed the appeal. In doing so, the
BIA found no clear error in the IJ’s interpretation of the state court
sentence modification order or in the determination that Edwards
had been convicted of an aggravated felony despite that state court
order. The BIA also affirmed the IJ’s determination that Edwards
was ineligible for withholding of removal. It “discern[ed] no clear
error in the finding that the record does not reflect adequate evi-
dence that the respondent would be targeted because he is a re-
turnee from the United States or due to his family ties.” It also
noted record evidence that “the criminal gangs that the respondent
fears in Jamaica target victims because they seek money, and not
due to the fact they come from the United States or otherwise.”
Finally, the BIA “affirm[ed] as lacking clear error the [IJ’s] finding
that [Edwards] has not established that it is more likely than not
that he would be tortured in Jamaica or that he could not relocate
within Jamaica and avoid the likelihood of such harm.”
Edwards petitioned this Court for review of the BIA order.
But while that petition was pending, in February 2017 he obtained
another state court sentence modification order. It resulted from
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8 Opinion of the Court 19-15077
his second motion requesting a modification, which was similar to
his first motion, borrowing much of its language. Like the first
modification motion, the second one focused exclusively on the im-
migration consequences that Edwards was facing. It also alluded
to the IJ’s interpretation of the first modification order and asked
the state court to “clarify that the original sentence has in fact been
modified from 12 months confinement allowed to be served on probation
to 11 month[s] and 27 days confinement allowed to be served on proba-
tion.” Edwards asked for this second modification, as he had the
first one, “in order that he may continue his contribution to society
and his family.” In other words, so that he would not be removed
from this country.
The district attorney’s office, as it had with Edward’s first
sentence modification motion, consented to his second one, and
only two days after Edwards had filed that second motion the state
court granted it. As with the first modification order, the state
court gave no reason for this second one other than noting that Ed-
wards “has filed a new motion to modify and clarify; and said mo-
tion having been considered by the Court and the State having no
objection, the Court grants the motion.” This time the state court
modified Edwards’ already-served sentence “to 11 months and 27
days confinement allowed to be served on probation.” Exactly
what Edwards had requested. The state court issued the second
modification order in February 2017, about four years after Ed-
wards had finished serving the 12-month sentence that had been
imposed on him in February 2012.
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19-15077 Opinion of the Court 9
On the same day the state court issued the second modifica-
tion order, Edwards filed with the BIA a motion to reopen, and in
May 2017 the BIA granted it. We dismissed the petition that had
been pending with us. The BIA remanded the case to the IJ, who
again –– for the third time –– ordered Edwards removed. The IJ
determined that the second state court sentence modification or-
der did not change Edwards’ conviction from being for an aggra-
vated felony under federal immigration law. Summarizing BIA
precedent, the IJ concluded that the original sentence imposed on
Edwards controlled because the new modification order did not
void it. Once again, the IJ incorporated by reference his earlier de-
cisions that Edwards is ineligible for withholding of removal and
CAT relief, finding that no new evidence had changed those deci-
sions.
D. Third Appeal to the BIA and Second Appeal to this Court
Edwards again appealed to the BIA, which affirmed the IJ in
all respects and dismissed the appeal. In doing so, the BIA treated
the second state court modification order as an order clarifying Ed-
wards’ sentence and found that under this Court’s precedent the
“clarification” had no legal effect for immigration purposes. That
meant Edwards had still been convicted of an aggravated felony,
and as a result he was still ineligible for cancellation of removal or
asylum. As for withholding of removal and CAT relief, the BIA
reiterated the same reasons it had previously given for affirming
the IJ’s determination that Edwards was ineligible for both.
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10 Opinion of the Court 19-15077
Edwards petitioned this Court for review. But while that pe-
tition was pending the government filed an unopposed motion to
remand to the BIA for it to reconsider the state court’s second mod-
ification order. The reason the government gave for the request
was that the BIA may have treated the “modification” order as a
“clarification” order, which might have been contrary to BIA prec-
edent as it stood at the time. We granted the motion.
E. Intervening Agency Authority: Matter of Thomas and Thomp-
son
Before the BIA decided Edwards’ case on remand, the Attor-
ney General issued a controlling decision, Matter of Thomas, 27 I. &
N. Dec. 674 (A.G. 2019). Up until then, to determine the immigra-
tion effect of state court orders the BIA applied different tests de-
pending on the type of order at issue. If the order “vacated” a con-
viction based on a defect in the proceedings, the BIA treated that
action as having legal effect for immigration purposes. Id. at 675.
If the order “modified” a sentence, it was given full faith and credit
regardless of the reason for the modification, meaning the sentence
had legal effect for immigration purposes. Id. And if the order
“clarified” the sentence, the BIA used a multi-factor test to deter-
mine if it had any immigration effect. Id. The different treatment
given to “clarification” and “modification” orders had led in two
BIA cases to the two petitioners, whose situations were materially
identical, getting opposite outcomes based on nothing more than
the labels that the state courts had given the order altering each
petitioner’s sentence. See id. at 679.
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19-15077 Opinion of the Court 11
The Attorney General certified to himself those two BIA de-
cisions “to address these inconsistencies and to clarify the appropri-
ate treatment under the INA.” Id. The “appropriate treatment un-
der the INA,” according to the Attorney General, was that the BIA
precedent about the distinction between “clarification” and “mod-
ification” orders needed to be overruled. See id. at 674–75, 690. The
Attorney General interpreted the relevant statutory text as mean-
ing that Congress’ intent was that all:
state-court orders that modify, clarify, or otherwise al-
ter a criminal alien’s sentence . . . will be given effect
for immigration purposes only if based on a proce-
dural or substantive defect in the underlying criminal
proceeding; these orders will have no effect for immi-
gration purposes if based on reasons unrelated to the
merits of the underlying criminal proceeding, such as
rehabilitation or the avoidance of immigration conse-
quences.
Id. at 674, 690. So the labels a court put on the order describing the
action the court was taking would no longer determine the immi-
gration effect of the order. All that would matter is whether the
order was issued based on a procedural or substantive defect in the
underlying criminal proceeding.
F. Final BIA Decision
After Matter of Thomas overruled the “clarification” and
“modification” regime, the BIA was left with the task of applying
to this case the new regime focused on procedural or substantive
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12 Opinion of the Court 19-15077
defects. Doing that, the BIA noted that Edwards “has pointed to
no evidence in the record to reflect that his criminal proceedings
were marred by procedural or substantive defect.” As a result, un-
der Matter of Thomas the modification order had no effect for im-
migration purposes; it did not change the fact that Edwards had
been convicted of an aggravated felony under the INA.
The BIA also adopted, yet again, its past reasoning that Ed-
wards was ineligible for withholding of removal and CAT relief. It
reiterated, among other things, that Edwards had not proved that
he would be harmed because of membership in his claimed social
groups and that the IJ “did not clearly err in finding inadequate ev-
idence to support a finding that it was more likely than not that
[Edwards] would be tortured in Jamaica.” The BIA dismissed Ed-
wards’ appeal.
In his petition to us, Edwards challenges the BIA’s determi-
nation that he was convicted of an aggravated felony. His chal-
lenge attacks the validity of the Attorney General’s Matter of
Thomas decision, including the reasonableness of its statutory in-
terpretation. Edwards also contends that the BIA erred in finding
him ineligible for withholding of removal and CAT relief.1
1 In addition, Edwards contends that the IJ should have recused himself
and that the BIA erred in determining that the IJ did not need to recuse. We
have reviewed this contention and determined that it is entirely without merit
and warrants no further discussion. Cf., e.g., United States v. Iriele, 977 F.3d
1155, 1165 n.6 (11th Cir. 2020) (“We will not discuss why those scattershot
contentions lack merit.”); Tompkins v. Moore, 193 F.3d 1327, 1331 n.1 (11th Cir.
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19-15077 Opinion of the Court 13
II. STANDARDS OF REVIEW
“When the BIA issues its own opinion, we review only the
decision of the BIA, except to the extent the BIA expressly adopts
the IJ’s decision.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223,
1230–31 (11th Cir. 2007) (quotation marks and ellipsis omitted).
“We review questions of law de novo, including whether a convic-
tion qualifies as an aggravated felony under the Immigration and
Nationality Act.” Talamantes-Enriquez v. U.S. Att'y Gen., 12 F.4th
1340, 1347 (11th Cir. 2021) (quotation marks omitted). We also re-
view de novo questions of statutory interpretation, but we do so
through the lens of Chevron, which dictates that the Attorney Gen-
eral and the BIA are “entitled to deference in interpreting ambigu-
ous provisions of the INA.” Negusie v. Holder, 555 U.S. 511, 516
(2009) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 842–843 (1984)); see also I.N.S. v. Aguirre-Aguirre, 526 U.S.
415, 425 (1999) (recognizing that “judicial deference to the Execu-
tive Branch is especially appropriate in the immigration context”);
Herrera v. U.S. Att’y Gen., 811 F.3d 1298, 1300 (11th Cir. 2016). “Con-
gress has charged the Attorney General with administering the
INA, and a ‘ruling by the Attorney General with respect to all ques-
tions of law shall be controlling.’” Negusie, 555 U.S. at 516–17
1999) (“The issues we do not write more about merit no further discussion
here beyond the statement that we agree with the district court . . . .”);
Dominguez v. Tom James Co., 113 F.3d 1188, 1190 (11th Cir. 1997) (“None of the
Company's other issues that we have listed above merit any further discus-
sion.”).
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14 Opinion of the Court 19-15077
(quoting 8 U.S.C. § 1103(a)(1)). In light of that and other consider-
ations, the Supreme Court has held not only that Chevron deference
applies, but also that “[j]udicial deference in the immigration con-
text is of special importance.” Id.
Under Chevron, if the statutory text is unambiguous and an-
swers the question presented, we apply the text according to its
terms with no need for deference. See Hincapie-Zapata v. U.S. Att’y
Gen., 977 F.3d 1197, 1200 (11th Cir. 2020); Arevalo v. U.S. Att’y Gen.,
872 F.3d 1184, 1188 (11th Cir. 2017). But “if the statute is silent or
ambiguous with respect to the specific issue presented, we must
then determine whether the agency’s interpretation is reasonable
or based on a permissible construction of the statute.” Arevalo, 872
F.3d at 1188 (citing Chevron, 467 U.S. at 843); see also Amezcua-Preci-
ado v. U.S. Att’y Gen., 943 F.3d 1337, 1341 (11th Cir. 2019).
We review the BIA’s factual findings under the “highly defer-
ential” substantial evidence standard, under which we may reverse
only if the “record not only supports reversal, but compels it.”
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009)
(quotation marks omitted).
III. AGGRAVATED FELONY ISSUE
Edwards challenges the BIA’s determination that he was con-
victed of an aggravated felony. If he was, he is statutorily ineligible
for cancellation of removal and asylum. See 8 U.S.C.
§ 1158(b)(2)(B)(i); Talamantes-Enriquez, 12 F.4th at 1347. An “aggra-
vated felony” is a “crime of violence . . . for which the term of im-
prisonment [was] at least one year.” 8 U.S.C. § 1101(a)(43)(F). The
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19-15077 Opinion of the Court 15
meaning of “term of imprisonment” and the other definitional
components of an “aggravated felony” are matters of federal law.
See Talamantes-Enriquez, 12 F.4th at 1354 (“[W]e are not bound by a
state judge’s interpretation of a state court sentence order because
we are dealing with federal law and federal statutes, not state law
and state statutes.”); Herrera, 811 F.3d at 1301 (“Because words in
federal statutes reflect federal understandings, the statement of the
Georgia court in its order of clarification that [the petitioner] was
not sentenced to any confinement was due no weight in his immi-
gration proceeding.”) (quotation marks and citation omitted; alter-
ation adopted); United States v. Ayala-Gomez, 255 F.3d 1314, 1319
(11th Cir. 2001) (“Words in federal statutes reflect federal under-
standings, absent an explicit statement to the contrary, even if a
state uses the word differently.”).
Edwards does not dispute that his Georgia family violence
battery conviction was for a crime of violence; what he challenges
is the BIA’s determination that his term of imprisonment was for
at least one year. Cf. United States v. Garza-Mendez, 735 F.3d 1284,
1287 (11th Cir. 2013) (“On appeal, [the defendant] does not contend
that his state conviction [of Georgia family violence battery] is not
a crime of violence under 18 U.S.C. § 16; instead he argues that he
was not sentenced to an imprisonment term of at least one year.”)
(quotation marks omitted; alteration adopted). Edwards makes
that challenge despite the fact that under our precedent his original
sentence of 12 months confinement allowed to be served on pro-
bation is undoubtedly a term of imprisonment of at least one year.
See Talamantes-Enriquez, 12 F.4th at 1353 (“Our precedent
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16 Opinion of the Court 19-15077
establishes that [the petitioner] was sentenced to a term of impris-
onment for at least one year for purposes of § 1101(a)(43)(F), even
if he was permitted to serve part or all of that sentence on proba-
tion.”).
Edwards’ position is that what counts for immigration pur-
poses is not his original sentence of 12 months but the modified
sentence of 11 months and 27 days that resulted from the last state
court order. Because that contention is directly foreclosed by the
Attorney General’s Matter of Thomas decision, Edwards attacks that
decision’s legality. He makes two broad contentions about it: that
the Attorney General lacked the authority to issue Matter of Thomas
at all; and that even if he had the authority, Matter of Thomas is an
unreasonable interpretation of the INA.
A. The Attorney General’s Authority
Congress has provided that on matters of immigration law
“determination and ruling by the Attorney General with respect to
all questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1). As
we have recognized: “Congress has vested in the Attorney General
the authority to decide legal questions arising under the immigra-
tion laws.” Farquharson v. U.S. Att’y Gen., 246 F.3d 1317, 1323 n.7
(11th Cir. 2001). “The Attorney General has delegated this func-
tion to the Board,” but he still “retains the authority to review final
decisions of the BIA” and overrule them, as he did here. Id.; see also
8 C.F.R. § 1003.1(h); Yu, 568 F.3d at 1333 (“The fact that the BIA had
previously construed the statute differently . . . did not prohibit the
Attorney General from holding otherwise.”). Not only that, but
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19-15077 Opinion of the Court 17
the Attorney General can review and overrule BIA decisions upon
his own initiative, see Farquharson, 246 F.3d at 1323 n.7; 8 C.F.R.
§ 1003.1(h)(1)(i), as he did here.
Edwards takes issue with the Attorney General’s decision to
use adjudication instead of rulemaking in this instance. But it “is
well established . . . that agencies have discretion to choose
whether to proceed by rulemaking or adjudication.” RTC Transp.,
Inc. v. I.C.C., 731 F.2d 1502, 1505 (11th Cir. 1984). That “is true even
when adjudication is used to announce new policy after years of
contrary precedent.” Id. The Attorney General’s choice to over-
rule BIA precedent through the decision in Matter of Thomas in-
stead of through rulemaking was well within his statutory author-
ity.
Edwards alternatively argues that the Matter of Thomas deci-
sion cannot be applied retroactively to him. But we have already
rejected this kind of retroactivity argument. We addressed it in a
case where the BIA had dismissed a petitioner’s appeal based on
“the Attorney General’s intervening precedential decision” that
had overruled BIA precedent. Yu, 568 F.3d at 1330. We held that
the “BIA did not retroactively apply a new law but instead applied
the Attorney General’s determination of what the law had al-
ways meant.” Id. at 1333 (quotation marks omitted).
Edwards contends that, despite our precedent in Yu, we
should conduct a balancing test based on SEC v. Chenery Corp., 332
U.S. 194 (1947), to determine whether Matter of Thomas should be
retroactively applied to him. Our predecessor Court did apply the
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18 Opinion of the Court 19-15077
Chenery balancing test, but it was in a case reviewing a different
agency’s decision. See McDonald v. Watt, 653 F.2d 1035 (5th Cir. Unit
A Aug. 21, 1981).
McDonald was decided long before Yu, and it might appear
that our prior panel precedent rule requires us to follow that earlier
decision. See, e.g., United States v. Smith, 201 F.3d 1317, 1322 (11th
Cir. 2000) (“It is the firmly established rule of this Circuit that each
succeeding panel is bound by the holding of the first panel to ad-
dress an issue of law, unless and until that holding is overruled en
banc, or by the Supreme Court.”) (quoting United States v. Hogan,
986 F.2d 1364, 1369 (11th Cir.1993)) (cleaned up). But what might
appear is not what actually is.
We’re still bound to follow Yu, and here’s why. The McDon-
ald decision held that a Department of Interior adjudicatory rule
could not be given retroactive effect because the Department’s new
interpretation reversed well-established agency practice to “the ex-
treme prejudice,” 653 F.2d at 1045, of the plaintiffs and hundreds
of other oil and gas lease applicants who relied on the Bureau of
Land Management’s past practice when they submitted offers that
conformed to that practice but not to the newly adopted one. Id.
at 1036–37. That earlier decision in McDonald does not free us from
Yu because McDonald is distinguishable.
Under the prior panel precedent rule we have a duty to rec-
oncile, where possible, prior precedents that appear to be in ten-
sion. See Hogan, 986 F.2d at 1369 (“Given the delicate nature of the
task, it is not surprising that one of the most favored means for
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19-15077 Opinion of the Court 19
resolving an inconsistency in circuit precedents is to determine that
the inconsistency is more apparent than real. A panel of this Court
is obligated, if at all possible, to distill from apparently conflicting
prior panel decisions a basis of reconciliation and to apply that rec-
onciled rule.”); see also Corley v. Long-Lewis, Inc., 965 F.3d 1222, 1230
(11th Cir. 2020) (same).
Reconciling our two previous decisions is not difficult here.
Yu is specific to the immigration context; McDonald involves the Bu-
reau of Land Management and the Interior Board of Land Appeals.
McDonald has its own its facts, including extreme prejudice to hun-
dreds of oil and gas lease applicants, 653 F.2d at 1036, 1045, and any
broad statements the opinion made about agency decisions apply-
ing prospectively is limited to those facts. See, e.g., Edwards v. Prime,
Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“We have pointed out
many times that regardless of what a court says in its opinion, the
decision can hold nothing beyond the facts of that case.”) (collect-
ing cases). The facts in McDonald have nothing to do with immi-
gration law. More specifically, the facts in McDonald have nothing
to do with 8 U.S.C. § 1103(a)(1) and the Attorney General’s rulings
and determinations about immigration law. Whatever McDonald
says generally about agency law and the Chenery balancing test, it
holds nothing about immigration law. United States v. Bazantes, 978
F.3d 1227, 1244 (11th Cir. 2020) (“To the extent that an earlier deci-
sion is distinguishable from the case at hand, it may be a prior prec-
edent, but it is not one that can dictate the result of the current case
under the prior precedent rule.”).
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20 Opinion of the Court 19-15077
In Chenery the Supreme Court reviewed a Securities and Ex-
change Commission order and held that an agency is not limited to
promulgating rules according to its rulemaking authority but also
has the authority to establish new rules through adjudicatory or-
ders. See Chenery, 332 U.S. at 199–201. In that context the Court
stated that when an agency issues an adjudicative decision estab-
lishing a new rule, “retroactivity must be balanced against the mis-
chief of producing a result which is contrary to a statutory design
or to legal and equitable principles,” and “[i]f that mischief is
greater than the ill effect of the retroactive application of a new
standard, it is not the type of retroactivity which is condemned by
law.” Id. at 203. In McDonald our predecessor Court stated that it
“accept[ed] the Chenery balancing test as the appropriate inquiry”
for determining whether the Department of Interior should have
applied its new adjudicatory rule to the particular facts of that case.
McDonald, 653 F.2d at 1043.
Our decision in the present case does not and cannot conflict
with Chenery because we are bound by the later holding in Yu.
Chenery was decided decades before Yu, and if Yu overlooked or
misinterpreted Chenery, that would change nothing about Yu’s
binding effect on our panel. See United States v. Fritts, 841 F.3d 937,
942 (11th Cir. 2016) (“Under this Court’s prior panel precedent rule,
there is never an exception carved out for overlooked or misinter-
preted Supreme Court precedent.”); see also Smith v. GTE Corp., 236
F.3d 1292, 1303 (11th Cir. 2001) (“[W]e categorically reject any ex-
ception to the prior panel precedent rule based upon a perceived
defect in the prior panel’s reasoning or analysis as it relates to the
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19-15077 Opinion of the Court 21
law in existence at the time.”). And our decision in this case does
not conflict with McDonald’s application of Chenery because, for the
reasons we’ve discussed, McDonald is distinguishable from Yu and
doesn’t free us from following Yu. See Bazantes, 978 F.3d at 1244.
It’s not the first time we’ve followed Yu in an immigration
case like this one, and some other circuits have done the same. See
Alvarado v. U.S. Att’y Gen., 984 F.3d 982, 991 (11th Cir. 2020) (“Once
the Attorney General clarified the meaning of the statutory phrase
particular social group in Matter of A-B-, [27 I. & N. Dec. 316 (AG
2018),] that decision became the controlling interpretation of the
law and was entitled to full retroactive effect in all cases still open
on direct review, regardless of whether the events predated the At-
torney General’s decision.”) (citing Yu, 568 F.3d at 1333) (quotation
marks omitted); accord Torres v. Holder, 764 F.3d 152, 158 (2d Cir.
2014), aff’d sub nom. Torres v. Lynch, 578 U.S. 452 (2016) (“In relying
on Matter of Bautista [, 25 I. & N. Dec. 616 (BIA 2011)], the BIA
therefore did not retroactively apply a new law but instead applied
its determination of what the law ‘had always meant.’”) (cleaned
up) (quoting Yu, 568 F.3d at 1333); id. at 158–59 (“Once Matter of
Bautista issued, that decision became the controlling interpretation
of the law and was entitled to full retroactive effect in all cases still
open on direct review, regardless of whether the events predated
the decision.”) (cleaned up) (quoting Yu, 568 F.3d at 1334); Espinal-
Andrades v. Holder, 777 F.3d 163, 170 (4th Cir. 2015) (same); Shou Wei
Jin v. Holder, 572 F.3d 392, 397–98 (7th Cir. 2009) (holding that “[a]
change in an agency’s interpretation of the law does not constitute
a ‘significant error’ that justifies the exercise of our nunc pro tunc
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22 Opinion of the Court 19-15077
powers” to apply the BIA’s earlier precedent to an asylum claim)
(citing and quoting Yu, 568 F.3d at 1332); but see Zaragoza v. Garland,
52 F.4th 1006, 1023 (7th Cir. 2022) (concluding that retroactive ap-
plication of the Attorney General’s adjudicative decision “can be
properly withheld” in some cases “when to apply the new rule to
past conduct or prior events would work a manifest injustice”)
(quotation marks omitted).
As Judge Jordan points out in his separate concurring opin-
ion, the Second and Seventh Circuits have not consistently applied
the retroactivity rule from Yu and have sometimes taken a Chenery
balancing test approach. See, e.g., Lugo v. Holder, 783 F.3d 119, 121–
23 (2d Cir. 2015); Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 503–04
(7th Cir. 2008). And they aren’t the only circuits that have applied
the Chenery balancing test in immigration cases.2 See, e.g., De Niz
2 Our concurring colleague states that because the Attorney General’s
Matter of Thomas opinion cites Chenery for the proposition that that an agency
has the authority to announce new interpretations of a statute through rule-
making or through adjudication, see Matter of Thomas, 27 I & N Dec. at 688, we
can “presume[]” that the Attorney General also believes that Chenery would
“govern with respect to the retroactivity of an interpretive change by adjudi-
cation.” Concurring Op. at 6 n.2. We disagree.
When a court (or the Attorney General in an adjudicative decision)
cites one part of an opinion, that does not amount to an endorsement or agree-
ment with every other part of the opinion. Matter of Thomas pin cites the
Chenery opinion only for the proposition that rulemaking and adjudication are
equally valid paths to the same destination. And Matter of Thomas addresses
retroactivity only in terms of state court orders that attempt to alter immigra-
tion consequences with post hoc changes to criminal convictions and sen-
tences. See 27 I & N Dec. at 677 (referring to “the immigration consequences
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19-15077 Opinion of the Court 23
Robles v. Lynch, 803 F.3d 1165, 1173–78 (10th Cir. 2015); Francisco-
Lopez v. Att’y Gen. U.S., 970 F.3d 431, 436–40 (3d Cir. 2020); Reyes v.
Garland, 11 F.4th 985, 990–93 (9th Cir. 2021).
Yu cites 8 U.S.C. § 1103(a)(1), which seems to give the Attor-
ney General the final say on questions of immigration law. In its
entirety, that provision states:
The Secretary of Homeland Security shall be charged
with the administration and enforcement of this
chapter and all other laws relating to the immigration
and naturalization of aliens, except insofar as this
chapter or such laws relate to the powers, functions,
and duties conferred upon the President, Attorney
General, the Secretary of State, the officers of the De-
partment of State, or diplomatic or consular officers:
Provided, however, That determination and ruling by
the Attorney General with respect to all questions of
law shall be controlling.
of state-court orders that retroactively alter a criminal conviction or sen-
tence”). Matter of Thomas does not hold or even hint anything about Chenery’s
balancing test and whether it applies to deciding if decisions of the Attorney
General on immigration matters are retroactive.
Relying on and agreeing with a decision is not an all or nothing prop-
osition. If it were, opinions concurring in part and dissenting in part would not
exist, yet opinions doing exactly that are abundant in the reporters. We have
all written them.
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24 Opinion of the Court 19-15077
8 U.S.C. § 1103(a)(1); see also Negusie, 555 U.S. at 516–17 (“Congress
has charged the Attorney General with administering the INA, and
a ‘ruling by the Attorney General with respect to all questions of
law shall be controlling.’”). Section 1103(a)(1), as Yu holds, may
mean that when the Attorney General announces new a new deci-
sion that is a reasonable interpretation of the INA and is entitled to
deference, that decision applies retroactively because it is “the At-
torney General’s determination of what the law ‘ha[s] always
meant.’” Yu, 568 F.3d at 1333 (quoting Rivers v. Roadway Exp., Inc.,
511 U.S. 298, 313, n.12 (1994) (explaining that when the Supreme
Court interprets a statute in a new way, it isn’t changing the law
but is declaring what the statute has “always meant” and is clarify-
ing how inferior courts have misunderstood the will of Congress)).
Or interpreting 8 U.S.C. § 1103(a)(1) as giving the Attorney
General final authority on the law may be a misinterpretation of
the statute. A better interpretation may be that § 1103(a)(1) actu-
ally spells out the Attorney General’s absolute authority on deter-
mining questions of immigration law only in relation to other im-
migration authorities who are listed in that provision. See 8 U.S.C.
§ 1103(a)(1); see also Ruiz v. U.S. Att’y Gen., 73 F.4th 852, 862 (11th
Cir. 2023) (Newsom, J., concurring) (“Section 1103(a)(1)’s proviso
is best understood, I submit, to empower the Attorney General to
make legal determinations that are ‘controlling’ vis-à-vis other Ex-
ecutive-Branch actors—but not vis-à-vis the courts.”). Regardless,
for this panel decision’s purpose, we have binding precedent on
point, and that binding precedent is Yu.
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19-15077 Opinion of the Court 25
As Judge Jordan’s concurring opinion recognizes, we’re
bound to apply the Yu retroactivity rule here.3 See Concurring Op.
at 1. The Matter of Thomas decision is based on interpreting the
statutory text to enforce its original meaning. Under Yu the BIA’s
earlier interpretation of the statute does not mean Matter of
Thomas announced new law. Instead, it means that Matter of
Thomas correctly states what the law always was and how it always
should have been applied. See Yu, 568 F.3d at 1333. We cannot hold
that that it was impermissible for the BIA to apply the Attorney
General’s Matter of Thomas decision.
B. Statutory Interpretation
As we have mentioned, we review de novo questions of stat-
utory interpretation, subject to the principles of Chevron deference
that are “of special importance” in the immigration context. Ne-
gusie, 555 U.S. at 517; see also Arevalo, 872 F.3d at 1187; Amezcua-Pre-
ciado, 943 F.3d at 1341; Yu, 568 F.3d at 1331. The Chevron step one
question “is whether the usual rules of statutory interpretation
provide a clear answer” to the specific issue presented. Barton v.
U.S. Att’y Gen., 904 F.3d 1294, 1298 (11th Cir. 2018). If the statutory
text is unambiguous and “answers the question presented . . . we
3 Like our concurring colleague, we are “not so sure” about what the
statute means, see Concurring Op. at 13 n.4, but we would not go so far as to
say that a statute whose plain text states that a “determination and ruling by
the Attorney General with respect to all questions of law shall be controlling,”
8 U.S.C. § 1103(a)(1), says nothing about whether his interpretation should be
given retroactive effect, Concurring Op. at 13 n.4.
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26 Opinion of the Court 19-15077
apply the statute and determine whether the [BIA’s] decision com-
plies with the statutory text.” Hincapie-Zapata v. U.S. Att’y Gen., 977
F.3d 1197, 1200 (11th Cir. 2020). If the INA “is silent or ambiguous,
we proceed to the second step [of Chevron], which requires us to
determine whether the agency’s interpretation is a “permissible
construction of the statute.’” Yu, 568 F.3d at 1331. “So long as an
agency’s interpretation is reasonable, it is controlling,” and it is rea-
sonable if it is “not arbitrary, capricious, or manifestly contrary to
the statute.” Id. at 1332 (quotation marks omitted).
Before turning to the statutory text here, we define the spe-
cific and precise issue before us, as step one of Chevron requires.
See, e.g., Chevron, 467 U.S. at 843 (asking whether the statute is am-
biguous “with respect to the specific issue”) (emphasis added); id. at
862 (concluding “that the legislative history as a whole is silent on
the precise issue before us”) (emphasis added); In re Gateway, 983 F.3d
at 1256 (noting that at step one of Chevron “[w]e must ascertain
whether Congress had a specific intent on the precise question before
us”) (emphasis added; quotation marks omitted); Hincapie-Zapata,
977 F.3d at 1200 (stating that deference may be due if “the statute
is silent or ambiguous with respect to the specific issue”) (emphasis
added; quotation marks omitted); Miccosukee Tribe of Indians of Fla.
v. United States, 566 F.3d 1257, 1273 (11th Cir. 2009) (“The first ques-
tion is whether Congress has directly spoken to the precise question
at issue.”) (emphasis added; quotation marks omitted).
In this case, the facts of the state court sentence modification
order define the precise issue presented and the outer reaches of
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19-15077 Opinion of the Court 27
our holding. Cf. Alim v. Gonzales, 446 F.3d 1239, 1248 (11th Cir. 2006)
(holding that a prior decision that had addressed a conviction va-
cated for a “rehabilitative” reason was not binding in a factual sce-
nario where a conviction had been vacated because of a defect such
as a violation of a constitutional right).
The key facts are clear: Edwards’ state court sentence was
modified so that he could avoid the immigration consequences of
being an aggravated felon under federal law, and in that way avoid
removal. We know that’s why his sentence was modified because
the state court gave no reasons for modifying Edwards’ sentence
other than stating that it had considered his motion. Edwards’ mo-
tion, in turn, was entirely about his immigration situation and the
harsh effect that removal would have on him and his family. See
supra at 5, 8. Neither of his two motions to modify mentioned any
other reason for modifying his sentence.
In the closely analogous immigration context of state court
orders that vacate a conviction (instead of revising a sentence), we
have held that we can look to a petitioner’s state court filing to de-
termine “the reason underlying the state court’s decision to vacate
[his] plea.” Alim, 446 F.3d at 1251. We concluded in Alim that “we
have no reason to doubt that [the] plea was vacated for the reason
provided in” the petitioner’s request for relief, and that was “partic-
ularly so because the state did not challenge or contest [the peti-
tioner’s] factual allegations.” Id. The same is true here. The state
court granted Edwards’ unopposed motion for a sentence modifi-
cation solely for the reason stated in that motion. One reason and
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28 Opinion of the Court 19-15077
one reason alone: to enable Edwards to avoid removal under fed-
eral immigration law. The question is whether the INA prohibits
giving legal effect for immigration purposes to this kind of state
court sentence modification order.
We begin our analysis of the meaning of the statute, as we
always should, with the text of it. The relevant text comes from 8
U.S.C. § 1101(a)(48), which is located in the definitions section of
the statute. It states in full:
(A) The term “conviction” means, with respect to
an alien, a formal judgment of guilt of the alien en-
tered by a court or, if adjudication of guilt has been
withheld, where—
(i) a judge or jury has found the alien guilty or the al-
ien has entered a plea of guilty or nolo contendere or
has admitted sufficient facts to warrant a finding of
guilt, and
(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be im-
posed.
(B) Any reference to a term of imprisonment or a sen-
tence with respect to an offense is deemed to include
the period of incarceration or confinement ordered
by a court of law regardless of any suspension of the im-
position or execution of that imprisonment or sentence in
whole or in part.
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19-15077 Opinion of the Court 29
8 U.S.C. § 1101(a)(48) (emphasis added).
Our primary focus is on the meaning of a “term of impris-
onment or a sentence.” Id. § 1101(a)(48)(B). The statute partially
defines a “term of imprisonment or a sentence” by specifying one
thing it is “deemed to include,” which is: “the period of incarcera-
tion or confinement ordered by a court of law regardless of any
suspension of the imposition or execution of that imprisonment or
sentence in whole or in part.” Id. We have held that “suspension”
takes its federal meaning, which is “a procedural act that precedes
a court’s authorization for a defendant to spend part or all of the
imposed prison sentence outside of prison.” Ayala-Gomez, 255 F.3d
at 1319. Based on that definition of “suspension,” we have inter-
preted a “term of imprisonment” to “include all parts of a sentence
of imprisonment from which the sentencing court excuses the de-
fendant, even if the court itself follows state-law usage and de-
scribes the excuse with a word other than ‘suspend.’” Id.
The partial statutory definition of a “term of imprison-
ment” and our interpretation of it in Ayala-Gomez do not entirely
resolve the precise issue before us. Because we have held that a
“suspension” is “a procedural act that precedes” a court allowing a
defendant to avoid spending time in prison, id. (emphasis added),
that part of the partial statutory definition does not tell us about
post-sentencing modifications to an already served sentence.
And though the statute refers plainly to “the period of incar-
ceration or confinement ordered by a court of law,” that does not
tell us much about the precise issue before us either. 8 U.S.C.
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30 Opinion of the Court 19-15077
§ 1101(48)(B). It doesn’t because both the original sentence and the
modified sentence include a “period of incarceration or confine-
ment ordered by a court of law.” Id. The question is which period
of confinement counts for purposes of immigration law, the origi-
nal one or the modified one.
The statute does not unambiguously answer that question.
But the Attorney General has. See 8 U.S.C. § 1103(a)(1); see also Yu,
568 F.3d at 1333. And his interpretation on the precise question of
law at issue here is “reasonable and entitled to deference.” Yu, 568
F.3d at 1333; see also Bastias v. U.S. Att’y Gen., 42 F.4th 1266, 1274
(11th Cir. 2022) (explaining that at Chevron step two the agency has
a “range of discretion” to interpret the INA and is free to make a
policy-based decision from a variety of possible interpretations).
As we have discussed, see supra at 10–11, in Matter of Thomas
the Attorney General determined that a state court sentence mod-
ification order issued for “avoidance of immigration conse-
quences” has no legal effect for immigration purposes. 27 I. & N.
Dec. at 674. That determination with respect to this question of
law is controlling. See 8 U.S.C. § 1103(a)(1); Yu, 568 F.3d at 1333.
Edwards’ sentence modification order was issued after he com-
pleted his sentence and after his removal proceedings began and
only for the purpose of preventing removal. Because Edwards’
modification order did not change his “term of imprisonment” for
purposes of federal immigration law, the BIA correctly determined
that he is an aggravated felon, and thus removable, and ineligible
for cancellation of removal, and ineligible for asylum.
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19-15077 Opinion of the Court 31
IV. DENIAL OF WITHHOLDING OF REMOVAL
ISSUE
To qualify for withholding of removal, Edwards must show
that if he returned to Jamaica his life or freedom would be threat-
ened on account of his membership in a particular social group.
Carrizo v. U.S. Att’y Gen., 652 F.3d 1326, 1331 (11th Cir. 2011). He
bears the burden of showing that he more likely than not would be
persecuted because of his membership in that social group. Id.
The BIA determined Edwards had failed to carry his burden of
showing that likelihood. That determination was a factual one. See
Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1290–91 (11th Cir. 2014) (ex-
plaining that the BIA made a finding “as a matter of fact” that the
petitioner failed to prove that she more likely than not would be
persecuted in the future on account of her membership in a partic-
ular social group). Edwards’ challenge to the factual determination
that he failed to prove the likelihood of future persecution is his
only basis for challenging the BIA’s determination that he is ineligi-
ble for withholding of removal.
The front gate problem with Edwards’ factual challenge to
the order denying him withholding of removal is that we do not
have jurisdiction to review it. See id. at 1289 (explaining that “[w]e
lack jurisdiction . . . to review factual findings that an alien is un-
likely to endure persecution” and “to reweigh the evidence that the
agency considered”). We have held that 8 U.S.C. § 1252(a)(2)(C)
means that the “only relief available to [the petitioner], a criminal
alien, is relief predicated on errors of law, not errors of fact.” Malu,
764 F.3d at 1290; accord Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,
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32 Opinion of the Court 19-15077
1067, 1073 (2020) (holding that under 8 U.S.C. § 1252(a)(2)(D), ju-
risdiction exists to review “the application of a legal standard to un-
disputed or established facts,” but that provision “will still forbid
appeals of factual determinations—an important category in the
removal context”). We also held in Malu that based on the jurisdic-
tional bar in § 1252(a)(2)(C), we “lack jurisdiction to review the
Board’s factual finding” that a criminal alien has “failed to prove
that she more likely than not would be persecuted in the future on
account of her membership in” a particular social group. Malu,
764 F.3d at 1291. That holding, backed up by what the Supreme
Court stated in Guerrero-Lasprilla, bars our review of Edwards’ fac-
tual challenges to the BIA’s finding that he failed to prove he would
be harmed in Jamaica because of his membership in a particular
social group. Because Edwards asserts no challenges “predicated
on errors of law,” id. at 1290, we have no jurisdiction to review that
part of the BIA’s decision denying withholding of removal.
The Supreme Court’s decision in Nasrallah v. Barr, 140 S. Ct.
1683 (2020), does not change our view about our lack of jurisdic-
tion. Nasrallah held that appellate courts do have jurisdiction to
review under the substantial evidence standard the BIA’s factual de-
terminations leading to an order denying CAT relief. Id. at 1690.
The Court acknowledged the government’s argument that its deci-
sion “might lead to judicial review of factual challenges to statutory
withholding orders,” but it emphasized that the “question is not
presented in this case, and we therefore leave its resolution for an-
other day.” Id. at 1694.
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19-15077 Opinion of the Court 33
At least until that “another day,” we are bound by our prior
panel precedent to hold that we lack jurisdiction over factual chal-
lenges to orders denying withholding; the Nasrallah decision has
not overruled or undermined that precedent to the point of abro-
gation. See United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir.
1998) (en banc). For a Supreme Court decision to undermine panel
precedent to the point of abrogation, the “decision must be clearly
on point” and “clearly contrary” to the panel precedent. Garrett v.
Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir.
2003) (quotation marks omitted). “In addition to being squarely on
point, the doctrine of adherence to prior precedent also mandates
that the intervening Supreme Court case actually abrogate or directly
conflict with, as opposed to merely weaken, the holding of the prior
panel.” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009)
(emphasis added).
The Nasrallah decision about CAT relief orders leaves in
force our prior panel precedent about withholding of removal or-
ders. See Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228,
1230 (11th Cir. 2007) (“Obedience to a Supreme Court decision is
one thing, extrapolating from its implications a holding on an issue
that was not before that Court in order to upend settled circuit law
is another thing.”). The Nasrallah decision was based on statutory
interpretation, and the statutory provisions interpreted in that de-
cision and this one are different. See 8 U.S.C. § 1231(b)(3); The For-
eign Affairs Reform and Restructuring Act of 1998 (FARRA), Pub.
L. No. 105-277, § 1242, 112 Stat. 2681-822 (1998); Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
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34 Opinion of the Court 19-15077
Pub. L. No. 104-208, 110 Stat. 3009-627 (1996). Which probably is
why the Supreme Court was moved to point out in Nasrallah that
it was not reaching any holding about orders denying withholding
of removal.
Not only that but our post-Nasrallah precedent also indicates
that our prior panel precedent about withholding orders continues
to bind us. See Farah v. U.S. Att’y Gen., 12 F.4th 1312, 1327 (11th Cir.
2021) (reciting in the same paragraph the rule from Nasrallah about
CAT relief orders and the rule from our prior panel precedent
about withholding orders); Thamotar v. U.S. Att’y Gen., 1 F.4th 958,
967 (11th Cir. 2021) (holding that an “order granting a noncitizen
withholding of removal is a final order of removal”).
V. CAT RELIEF ISSUE
The BIA determined that the IJ “did not clearly err in finding
inadequate evidence to support a finding that it was more likely
than not that [Edwards] would be tortured in Jamaica.” As we’ve
already mentioned, we do have jurisdiction to review under the
substantial evidence standard the BIA’s factual determinations
about the denial of CAT relief. See Nasrallah, 140 S. Ct. at 1691.
Under that standard we can reverse the BIA only if the record com-
pels it. The record does not.
The definition of “torture” for CAT purposes requires se-
vere pain or suffering that was, among other things, “inflicted by or
at the instigation of or with the consent or acquiescence of a public
official acting in an official capacity or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1); see also Todorovic v. U.S.
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19-15077 Opinion of the Court 35
Att’y Gen., 621 F.3d 1318, 1324 (11th Cir. 2010) (“[F]or CAT relief,
an applicant must show that it is more likely than not that he will
be tortured by, or with the acquiescence of, government officials if
returned to the designated country of removal.”); Jean-Pierre v. U.S.
Att’y Gen., 500 F.3d 1315, 1323 (11th Cir. 2007).
Edwards failed to show the likelihood of government in-
volvement or acquiescence in any torture by the Jamaican govern-
ment. As the IJ found, the Jamaican government had made “efforts
to combat corruption in the police and security forces as well as
abuses that may rise to the level of torture.” The police also took
Edwards’ statement after he was robbed by gang members. Even
if they failed to arrest the perpetrators, we have held that “CAT
does not extend so far” as to allow “a person [to] obtain CAT relief
merely because he was attacked by a gang of neighborhood thugs
whom the police were unable to apprehend.” Reyes-Sanchez v. U.S.
Att’y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004). The record does
not compel the conclusion that Edwards has established entitle-
ment to CAT relief.
VI. CONCLUSION
For all of those reasons, Edwards’ petition is DISMISSED in part
DENIED in part.
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19-15077 [J ORDAN , J., Concurring] 1
JORDAN , Circuit Judge, Concurring.
I join the court’s opinion as to all but Part III.A. With respect
to Part III.A, I concur in the judgment, as I agree that we should
apply Yu v. United States Attorney General, 568 F.3d 1328, 1330 (11th
Cir. 2009), because it is directly on point. Nevertheless, the result
we reach in Part III.A is, in my view, unsatisfactory. The Supreme
Court has told us that the retroactivity of administrative decisions
is subject to a multi-factor balancing test, and we have acknowl-
edged that command. See S.E.C. v. Chenery Corp., 332 U.S. 194, 203
(1947); McDonald v. Watt, 653 F.2d 1035 (5th Cir. Aug. 21, 1981). In
Yu, we accorded automatic retroactivity to administrative rulings
by the Attorney General in the immigration context, treating such
edicts as if they were judicial decisions by Article III tribunals. And
we did so without acknowledging, much less discussing, Chenery
and McDonald. I write to explain why we should convene en banc to
right our circuit law and confirm that, in the world of administra-
tive decisions, the Chenery balancing test governs all retroactivity
determinations.
I
This case concerns the retroactive application of a 2019 rul-
ing by the Attorney General—Matter of Thomas & Thompson, 27 I.
& N. Dec. 674 (A.G. 2019)—regarding the federal immigration ef-
fect of a state court order modifying, clarifying, or otherwise alter-
ing the sentence of a convicted noncitizen. In Thomas, the Attor-
ney General ruled that, in determining whether an alien has
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2 [J ORDAN , J., Concurring] 19-15077
committed an aggravated felony for purposes of removal under the
Immigration and Naturalization Act, 8 U.S.C. § 1101(a)(43)(F), im-
migration officials should credit state court orders reducing or
modifying the “term of imprisonment” for a particular offense
only if the reduction was based on a “defect in the underlying crim-
inal proceedings,” and not, for example, potential immigration
consequences. See id. at 674. This determination abrogated the
Board of Immigration Appeals’ longstanding precedent holding
just the opposite—that that immigration officials are required to
give full faith and credit to all state court orders modifying sen-
tences, irrespective of their underlying reasons. See, e.g., In re Cota-
Vargas, 23 I. & N. Dec. 849 (B.I.A. 2005).
Thomas had significant potential consequences for Mr. Ed-
wards and his then-pending removal proceedings. Naturally, he ar-
gues here that the Attorney General’s about-face in Thomas cannot
be retroactively applied to him. See Petitioner’s Br. at 11–15. He
asserts, for example, that “[a]s a new rule which can bring adverse
consequences for immigrants’ past legal decisions, the new rule
must not apply to modifications of sentence or to positive immi-
gration rulings based on such modifications that occurred before
October 25, 2019, the date of publication of the Attorney General’s
edict.” Id. at 14.1
1 Despite making this argument, Mr. Edwards did not cite to Chenery or
McDonald in his initial brief. Those citations would have been helpful.
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19-15077 [J ORDAN , J., Concurring] 3
In our initial panel opinion, we held that Thomas was fully
retroactive by applying Yu, a case in which we had accorded auto-
matic retroactive effect to an administrative ruling by the Attorney
General. And in today’s opinion, we explain that, notwithstanding
our recognition and application of Chenery in McDonald more than
40 years ago, Yu is the controlling precedent because McDonald
dealt with a Department of Interior rule and did not involve a de-
cision by the Attorney General.
The result we reach today, and the route we follow to get
there, is an acceptable way to harmonize Yu and McDonald. But as
both a doctrinal and practical matter, our resolution is problematic.
A
On the doctrinal side, Yu incorrectly relied on precedent re-
lated to the retroactivity standard of judicial rather than agency de-
cision-making. See Yu, 568 F.3d at 1333. Judicial decisions generally
apply retroactively as a rule, while legislative (and, as we will see,
administrative) enactments and determinations are presumptively
prospective. Compare, e.g., Solem v. Stumes, 465 U.S. 638, 642 (1984),
with, e.g., Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208–09
(1988). The difference makes sense.
Courts are charged with “say[ing] what the law is.” Marbury
v. Madison, 5 U.S. 137, 177 (1803). And “a legal system based on prec-
edent has a built-in presumption of retroactivity.” Solem, 465 U.S. at
642. See also Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372 (1910)
(Holmes, J., dissenting) (noting that judicial decisions “have had
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4 [J ORDAN , J., Concurring] 19-15077
retrospective operation for near a thousand years”). The Supreme
Court has suggested that the presumption of retroactivity attach-
ing to judicial decisions inheres in the Constitution’s separation of
powers. See Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993). So
have others. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1150 (10th
Cir. 2016) (Gorsuch, J., concurring) (“Precisely to avoid the possi-
bility of allowing politicized decisionmakers to decide cases and
controversies about the meaning of existing laws, the framers
sought to ensure that judicial judgments ‘may not lawfully be re-
vised, overturned or refused faith and credit by’ the elected
branches of government.”) (quoting Chi. & S. Air Lines v. Waterman
S.S. Corp., 333 U.S. 103, 113 (1948)).
Unlike the executive branch, the federal judiciary comes
with some built-in safeguards to protect against abrupt changes in
the law, such as the concept of stare decisis, the law of the case doc-
trine, preclusion rules, and—on a broader scale—the lifetime ap-
pointment for federal judges, which renders them less inclined to
bend to the popular politics of the day. There is also the Supreme
Court, which sits at the apex of the federal judiciary and is available
to resolve legal conflicts that arise in the lower federal courts. As
the Tenth Circuit has noted, the Constitution “invests judges with
none of the same ‘legislative Power[ ]’ to devise new rules of gen-
eral applicability,” and assigns the limited “’judicial Power’ . . . not
to avowed policymakers and politicians answerable to the people
but to judges insulated from partisan influence and retribution and
appointed without term.” De Niz Robles v. Lynch, 803 F.3d 1165, 1171
(10th Cir. 2015).
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19-15077 [J ORDAN , J., Concurring] 5
On the other hand, administrative agencies sometimes oper-
ate in a quasi-legislative way. Much to the chagrin of some mem-
bers of the judiciary and certain legal scholars, they sometimes
“take ‘legislative’ and ‘judicial’ forms” despite being “exercises of [
] the ‘executive Power.’” Arlington v. FCC, 569 U.S. 290, 305 n.4
(2013) (quoting U.S. Const. Art. II, § 1, cl. 1).
In the modern era of the administrative state, Attorneys
General and executive agencies are in part tasked with exercising
their delegated legislative authority through quasi-judicial proceed-
ings and the use of administrative law judges. See Laborers’ Int’l Un-
ion of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 387
n.8 (3d Cir. 1994) (“A . . . fundamental difference between agencies
and Article III courts is that an agency boasts both judicial and leg-
islative powers. When an agency exercises its legislative powers,
neither the ‘cases’ or ‘controversies’ prerequisite, nor the rule of
stare decisis, rears its head. And, as Chenery illustrates, agencies are
free to exercise their legislative powers in adjudications.”). Because
legislation “is rarely afforded retroactive effect,” De Niz Robles, 803
F.3d at 1169, when an administrative agency or official exercises del-
egated legislative authority a presumption against retroactivity
may also seem to inhere from the Constitution’s separation of
powers doctrine. See Reynolds v. McArthur, 27 U.S. (2 Pet.) 417, 434
(1829) (Marshall, C.J.) (“It is a principle which has always been held
sacred in the United States, that laws by which human action is to
be regulated, look forwards, not backwards; and are never to be
construed retrospectively unless the language of the act shall ren-
der such construction indispensable.”); Stern v. Marshall, 564 U.S.
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6 [J ORDAN , J., Concurring] 19-15077
462, 484 (2011) (“Article III could neither serve its purpose . . . nor
preserve the integrity of judicial decisionmaking if the other
branches of the Federal Government could confer the Govern-
ment’s ‘judicial Power’ on entities outside Article III.”).
To the extent that it denies automatic retroactivity to admin-
istration decisions, Chenery makes sense. “[T]he more an agency
acts like a legislator—announcing new rules of general applicabil-
ity—the closer it comes to the norm of legislations and the
stronger the case becomes for limiting application of the agency’s
decision to future conduct.” De Niz Robles, 803 F.3d at 1172. 2
B
Then there are the practical problems. With each change of
administrations, there come new policies. In the immigration con-
text such policies—sometimes expressed through the Attorney
General’s rulings—are often 180 degree turns from settled norms
that have widespread effects on then-pending immigration pro-
ceedings. This disruptive force is well-documented. See, e.g., Bijal
Shah, The Att’y Gen.’s Disruptive Immigration Power, 102 Iowa L. Rev.
129, 143–44 (2017) (discussing how “many recent Attorney General
2 Ironically, the Attorney General in Thomas—the decision at issue here—cited
to Chenery, albeit for the proposition that an agency may decide whether to
announce new interpretations of a statute through rulemaking or through ad-
judication. See Thomas, 27 I & N Dec. at 688. It should reasonably be presumed,
therefore, that if (in the Attorney General’s eyes) Chenery controls as to the
propriety of an interpretive change by adjudication, Chenery would also gov-
ern with respect to the retroactivity of an interpretive change by adjudication.
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19-15077 [J ORDAN , J., Concurring] 7
decisions can be understood to have . . . suspended the long-term
application of statute [ ] or altered the agent’s own longstanding
practices, including by virtue of partisan employment of the tool
[of the referral and review mechanism]”); Joseph Landau, DOMA
and Presidential Discretion: Interpreting and Enforcing Federal Law, 81
Fordham L. Rev. 619, 640 n.89 (2012) (referring to the Attorney
General’s review and certification powers as “powerful tool[s] in
that [they] allow[ ] the Attorney General to pronounce new stand-
ards for the agency and overturn longstanding BIA precedent”);
Richard Frankel, Deporting Chevron: Why the Attorney General’s Im-
migration Decisions Should Not Receive Chevron Deference, 54 U.C.
Davis L. Rev. 547, 561 (2020) (“Through the certification power,
[the Attorney General] can make law, render policy judgments, and
implement the administration’s immigration policy agenda. Be-
cause of the lack of constraints on the Attorney General and the
binding effect of his rulings, certification constitutes a ‘sweeping’
and ‘potent’ tool for refashioning the landscape of immigration
law, with dramatic effects on the millions of non-citizens subject to
removal proceedings.”).
What this has meant in practice over the last two decades is
that existing immigration precedent is subject to change every four
or so years. Indeed, between the last two administrations alone,
there have been at least five vacaturs of prior precedential decisions
by the BIA or the Attorney General—many of those decisions
themselves vacaturs of even earlier precedential decisions. See, e.g.,
Thomas, 27 I & N Dec. at 674, 684–85 (overturning longstanding
BIA precedent regarding the applicability of state court orders
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8 [J ORDAN , J., Concurring] 19-15077
altering or amending a sentence to immigration proceedings); Mat-
ter of M-S-, 27 I & N Dec. 509 (A.G. 2019) (overruling Matter of X-
K-, 23 I & N Dec. 731 (BIA 2005), which allowed asylum-seekers
with a positive credible fear determination for persecution or tor-
ture to be eligible for a custody redetermination hearing before an
immigration judge); Matter of A-B-, 28 I & N Dec. 307 (A.G. 2021)
(vacating Matter of A-B-, 28 I & N 199 (A.G. 2021) (restricting asy-
lum claims based on domestic or gang violence), and Matter of A-
B-, 27 I & N Dec. 316 (A.G. 2018) (itself overruling Matter of A-R-C-
G-, 26 I & N Dec. 338 (BIA 2014) (recognizing domestic violence as
a basis for asylum)); Matter of A-C-A-A-, 28 I & N Dec. 351 (A.G.
2021) (vacating Matter of A-C-A-A-, 28 I & N Dec. 84 (A.G. 2020),
and directing immigration judges to return to the “longstanding
review processes” that the previous Attorney General prohibited);
Matter of L-E-A-, 28 I & N Dec. 304 (A.G. 2021) (vacating Matter of
L-E-A-, 27 I & N Dec. 581 (A.G. 2019) (reversing BIA findings and
abrogating previous training guidance to immigration officers that
a family may constitute a particular social group consistent with
existing case law), and instructing immigration judges to revert to
the “preexisting state of affairs”)); Matter of Cruz-Valdez, 28 I & N
Dec. 326 (A.G. 2021) (vacating Matter of Castro-Tum, 27 I & N Dec.
271 (A.G. 2018)). Even when not expressly vacated or overruled,
prior precedent is often stayed or held in abeyance, leaving the
rights of many hanging in the balance. See, e.g., Matter of Negusie,
28 I & N Dec. 120 (A.G. 2020) (stayed by Matter of Negusie, 28 I &
N Dec. 399 (A.G. 2021)). One need not be a legal savant to recog-
nize that this state of affairs is tantamount to chaos.
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19-15077 [J ORDAN , J., Concurring] 9
This legal ping-pong has become relatively commonplace, as
more recent Attorneys General have used their certification au-
thority at a higher rate. See Am. Bar Ass’n, Resolution 121A & Re-
port 2–3, n. 9–14 (Aug. 13, 2019) (chronicling the use of the Attor-
ney General’s certification power throughout the Barack Obama
and Donald Trump administrations). See also Alberto R. Gonzalez
& Patrick Glen, Advancing Executive Branch Immigration Policy
Through the Attorney General’s Review Authority, 101 Iowa L. Rev. 841,
857–58 (2016) (describing the historical use of the certification au-
thority, including during the George W. Bush administration). As
the American Bar Association noted, “the certification process has
been used, as opposed to rulemaking (or legislative recommenda-
tions), to establish not only procedural and docket management
policies, but also substantive questions of law governing immigra-
tion proceedings that have resulted in reversing longstanding prec-
edential decisions . . . .” Am. Bar. Ass’n, Resolution 121A at 2. See
also Jennifer S. Breen, Labor, Law Enforcement, and “Normal Times”:
The Origins of Immigration’s Home within the Department of Justice
and the Evolution of Attorney General Control over Immigration Adjudi-
cations, 42 Hawai’i L. Rev. 1, 58 (2019) (outlining the increasing use
of the self-referral mechanism and noting that “[n]ow, self-referral
is the only way in which the Attorney General asserts his review
power and that power is increasingly used to reshape immigration
procedure and settled areas of immigration law”). And with the
(seemingly) never-ending political polarization of the immigration
debate, this trend will likely continue.
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10 [J ORDAN , J., Concurring] 19-15077
I don’t voice any opinion on whether these vacillating policy
decisions are substantively good or bad (individually or collectively)
for the body politic in general or the immigration system in partic-
ular. My point is that, in light of these mercurial changes, the no-
tion of automatic retroactivity (á la Yu) for Attorney General rul-
ings (and similar administrative decisions of general applicability)
seems ill-advised.
III
In Chenery, the Supreme Court instructed us to assess retro-
activity in the administrative realm by “weighing” the costs the af-
fected individual or entity would face against the benefits the
agency would enjoy. See Chenery, 332 U.S. at 199–201. The Court
noted that “retroactivity must be balanced against the mischief of
producing a result which is contrary to a statutory design or to legal
and equitable principles.” Id. at 203. This balancing is performed to
“assess[ ] the underlying due process and equal protection implica-
tions associated with retroactive agency action.” Gutierrez-Brizuela,
834 F.3d at 1147.
“When the Supreme Court speaks, we are bound to listen.”
Jones v. Smith, 786 F.2d 1011, 1013 (11th Cir. 1986) ( Johnson, J., dis-
senting). There is no “immigration exception” to the balancing test
laid out in Chenery for the retroactivity of administrative decisions.
In giving automatic retroactivity to Attorney General rulings in im-
migration matters, and in doing so without acknowledging or dis-
cussing Chenery, Yu erred.
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19-15077 [J ORDAN , J., Concurring] 11
As the majority notes, many of our sister circuits have ac-
corded automatic retroactivity to an Attorney General’s ruling in
immigration cases like this one. See Maj. Op. at 22–23 (collecting
cases). That, however, is not the whole story.
First, some of those circuits have also—paradoxically—ap-
plied the Chenery balancing test in immigration cases. The Second
Circuit, for example, has cases applying Chenery and cases following
the rationale of Yu in the immigration context. Compare, e.g., Torres
v. Holder, 764 F.3d 152, 158 (2d Cir. 2014) (following Yu), with Lugo v.
Holder, 783 F.3d 119, 121–23 (2d Cir. 2015) (applying Chenery balanc-
ing test), and Obeya v. Sessions, 884 F.3d 442, 445–50 (2d Cir. 2022)
(same). So does the Seventh Circuit. Compare Shou Wei Jin v. Holder,
572 F.3d 392, 297 (7th Cir. 2009) (following Yu), with Negrete-Rodri-
guez v. Mukasey, 518 F.3d 497, 503–04 (7th Cir. 2008) (applying
Chenery balancing test).
Second, just as some circuits have followed the misguided
automatic retroactivity approach of Yu, others have instead applied
the Chenery balancing test in immigration cases. These include the
Third, Fifth, Ninth, and Tenth Circuits. See, e.g., De Niz Robles, 803
F.3d at 1173–78; Monteon-Camargo v. Barr, 918 F.3d 423, 430–31 (5th
Cir. 2019); Francisco-Lopez v. Att’y Gen. U.S., 970 F.3d 431, 436–40 (3d
Cir. 2020); Reyes v. Garland, 11 F.4th 985, 990–93 (9th Cir. 2021). The
Yu approach, therefore, is not universally embraced.
On our end, we have discussed the Supreme Court’s Chenery
analysis in a well-known immigration case, though not with re-
gards to retroactivity. See Gonzalez v. Reno, 212 F.3d 1338 (11th Cir.
2000) (citing to and analyzing Chenery when discussing the different
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12 [J ORDAN , J., Concurring] 19-15077
levels of deference afforded to agency adjudications). We should
endeavor to correct course and apply Chenery correctly, especially
given the sheer volume of immigration cases that come before us.3
IV
Incumbent and newly-appointed Attorneys General—some-
times “avowedly politicized administrative [officials] seeking to
pursue whatever policy whim may rule the day,” Gutierrez-Brizuela,
834 F.3d at 1150 (Gorsuch, J., concurring)—are permitted to over-
turn longstanding immigration rules from one day to the next. And
to make matters worse for those litigating in the immigration sys-
tem (and the lawyers who represent them), the federal circuits have
applied contradictory analyses on the retroactive effects of those
ever-changing policy decisions.
The notion of automatic retroactivity delineated in Yu relies
on the mistaken premise that a ruling by the Attorney General is a
“determination of what the law ‘had always meant.’” 568 F.3d at
1333 (quoting Rivers v. Roadway Exp., Inc., 511 U.S. 298, 313 n.12
(1994)). As explained earlier, the Attorney General should not be
treated as an Article III federal court for retroactivity purposes. To
put it in simple terms, how can the law have always meant one thing
one day and then have always meant the exact opposite come the
3 See, e.g., Admin. Office U.S. Courts, Federal Judicial Caseload Statistics 2022
(Mar. 31, 2022), https://www.uscourts.gov/statistics-reports/federal-judicial-
caseload-statistics-2022 (“BIA appeals accounted for 87 percent of administra-
tive agency appeals and constituted the largest category of administrative
agency appeals filed in each circuit except the DC Circuit.”).
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19-15077 [J ORDAN , J., Concurring] 13
following election cycle? See, e.g., Landgraf v. USI Film Prods., 511
U.S. 244, 270 (1994) (noting that a retroactivity analysis focuses on
“considerations of fair notice, reasonable reliance, and settled expec-
tations”) (emphasis added).4
I believe we should convene en banc and hold that Chenery
provides the framework for determining the retroactive effect of
the Attorney General’s ruling in Thomas. Perhaps, in this mad, mad
world, the Chenery balancing test will provide a dose of sanity and
stability.5
4 The court posits that maybe Yu can be explained by 8 U.S.C. § 1103(a)(1), the
statute which gives the Attorney General the authority to make controlling
decisions regarding immigration law. See Maj. Op. at 23–25. I’m not so sure.
This statute may explain why some deference is due to the Attorney General’s
interpretation of an ambiguous statute, see Ruiz v. Att’y Gen., 73 F.4th 852, 858
n.3 (11th Cir. 2023), but it says nothing about whether that interpretation
should be given automatic retroactive effect by the federal courts.
5 Tears for Fears, Mad World, on The Hurting (Mercury Records 1983).
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