Brand X Outline

· If the BIA issues a published opinion interpreting a provision of the INA in the absence of Ninth Circuit precedent, then follow the published BIA opinion.

· If the Ninth Circuit issues a published opinion interpreting a provision of the INA in the absence of BIA precedent, then follow the published Ninth Circuit opinion.

· If the Ninth Circuit issues a published opinion interpreting a provision of the INA that decides the question of statutory interpretation under Chevron step one (i.e., it expressly finds that the statute is unambiguous), then follow the Ninth Circuit, irrespective of any subsequent conflicting BIA decision.

· If the Ninth Circuit issues a published opinion interpreting a provision of the INA that defers to the BIA’s statutory construction under Chevron step two (i.e., it finds that the statute is ambiguous and that the BIA’s interpretation is permissible), then follow the Ninth Circuit/BIA interpretation, unless the BIA changes its interpretation.

· If the BIA issues a published interpreting a provision of the INA that conflicts with a prior Ninth Circuit published opinion decided in the absence of a prior agency interpretation (i.e., not using the Chevron two-step analysis), then follow the Ninth Circuit interpretation (recommended).

· If the BIA issues a published opinion interpreting a provision of the INA that conflicts with a prior Ninth Circuit published opinion that decides the question of statutory interpretation under Chevron step two (i.e., it finds that the statute is ambiguous), then follow the BIA decision so long as the Ninth Circuit has not found this interpretation to be impermissible.

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