FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FORTUNATO DE JESUS AMADOR 

DUENAS, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 18-71987 

Agency No.

A205-318-278 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted July 20, 2023*

San Francisco, California

Filed July 27, 2023

Before: John B. Owens, Kenneth K. Lee, and Patrick J. 

Bumatay, Circuit Judges.

Opinion by Judge Lee

* The panel unanimously concludes that this case is suitable for 

decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 DUENAS V. GARLAND

SUMMARY**

Immigration

Denying Fortunato de Jesus Amador Duenas’s petition 

for review of a decision of the Board of Immigration 

Appeals, the panel held that the appointment and removal 

process for Immigration Judges and members of the BIA 

comports with Article II of the Constitution. 

The panel rejected Amador Duenas’s suggestion that 

Immigration Judges and BIA members are principal officers 

who, under the Appointments Clause of Article II, must be 

nominated by the President and confirmed by the 

Senate. Rather, the panel concluded that they are inferior 

officers (whose appointment may be vested in the head of a 

department) because the Attorney General ultimately directs 

and supervises their work. Thus, the panel held that the 

Appointments Clause allows Congress to vest their 

appointment in the Attorney General.

The panel next held that the removal process for 

Immigration Judges and BIA members satisfies Article II, 

which requires that officers remain accountable to the 

President by limiting restrictions on the removal of the 

President’s subordinates. The panel explained that the 

Attorney General has the power to remove Immigration 

Judges and BIA members, and that nothing restricts the 

Attorney General’s ability to remove them at will. Thus, 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
DUENAS V. GARLAND 3

these officers remain dependent on the Attorney General for 

their positions—and by extension, on the President.

In an accompanying memorandum disposition, the panel 

rejected Amador Duenas’s other challenges.

COUNSEL

Fortunado De Jesus Amador Duenas, San Bernardino, 

California, pro se Petitioner.

Aric A. Anderson, Trial Attorney; Kohsei Ugumori, Senior 

Litigation Counsel; Joseph H. Hunt, Assistant Attorney 

General, Civil Division; United States Department of 

Justice; Washington, D.C.; for Respondent. 

OPINION

LEE, Circuit Judge:

Our Constitution vests all executive power in one person, 

the President of the United States. U.S. Const. art. II, § 1, cl. 

1. The President, however, remains answerable to the 

people, and the officials who work for the President, in turn,

remain answerable to him or her. This structure ensures that 

the Executive Branch—and its vast power provided by the 

Constitution—remains accountable to the people.

Article II protects this chain of accountability. Its 

Appointments Clause limits who can appoint executive 

branch officers, making clear to the people who is 
4 DUENAS V. GARLAND

responsible for good—and bad—appointees wielding 

considerable power. See Lucia v. SEC, 138 S. Ct. 2044, 

2056 (2018) (Thomas, J., concurring). And Article II bars a 

restriction on the President’s power to remove officers if it

insulates them from presidential oversight. See Seila Law 

LLC v. CFPB, 140 S. Ct. 2183, 2191–92 (2020). These rules 

are a crucial feature of the separation of powers that lies at 

the heart of our constitutional system. The President’s 

accountability to the people legitimizes the concentration of 

executive power in the President. Id. at 2203. In turn, the 

President’s “ongoing supervision and control” of executive 

officials legitimizes the power that they exert in his or her 

name. Id.

In this case, Fortunato de Jesus Amador Duenas 

challenges the constitutionality of the appointment and 

removal process for Immigration Judges and members of the 

Board of Immigration Appeals (BIA). These officials 

exercise significant authority within our immigration 

system, making them officers under the Appointments 

Clause. See U.S. Const. art. II, § 2, cl. 2. But they remain 

accountable for their conduct. They are inferior officers 

appointed by the Attorney General, 8 U.S.C. § 1101(b)(4); 8 

C.F.R. § 1003.1(a)(1), who is in turn appointed by the 

President, 28 U.S.C. § 503. And nothing restricts the 

Attorney General’s ability to remove these officials. This

process follows our Constitution and the separation-ofpowers principles that underlie it. Accordingly, we deny 

Amador Duenas’s petition for review.1

1 We reject Amador Duenas’s other challenges in a memorandum 

disposition issued concurrently with this opinion.
DUENAS V. GARLAND 5

STANDARD OF REVIEW

We review de novo the constitutionality of the 

appointment and removal process for Immigration Judges 

and members of the BIA. See Ledezma-Cosino v. Sessions, 

857 F.3d 1042, 1045–46 (9th Cir. 2017) (en banc).

ANALYSIS

Article II of the Constitution vests all “executive Power” 

in the President of the United States. U.S. Const. art. II, § 1, 

cl. 1. With this power comes the responsibility to “take Care 

that the Laws be faithfully executed.” Id. § 3. To that end, 

the Appointments Clause mandates that the President 

appoint the principal “Officers of the United States,” subject 

to “the Advice and Consent of the Senate.” Id. § 2, cl. 2. 

Principal officers include cabinet heads and other high-level 

appointees. See id. § 2. Relevant here, the Appointments 

Clause also allows Congress to vest the appointment of 

“inferior” officers, who still exercise significant authority 

but do not need Senate confirmation, in “Heads of 

Departments.” Id. 

Amador Duenas challenges the appointment and 

removal of Immigration Judges and BIA members, arguing

that these processes do not follow the constraints imposed 

by Article II. He suggests that Immigration Judges and BIA 

members are principal officers, so they must be nominated 

by the President and confirmed by the Senate. He also 

maintains that the lack of a specific statutory provision 

governing their removal violates Article II. We reject these 

arguments. 
6 DUENAS V. GARLAND

I. Immigration Judges and BIA members are 

inferior officers properly appointed by the 

Attorney General.

The Appointments Clause applies only to “Officers of 

the United States”—not simple employees. Lucia, 138 S. 

Ct. at 2049 (quoting U.S. Const. art. II, § 2, cl. 2). Unlike 

employees, officers, whether principal or inferior, exercise 

“significant authority pursuant to the laws of the United 

States,” id. at 2051 (quoting Buckley v. Valeo, 424 U.S. 1, 

126 (1976) (per curiam)), and their duties are “continuing 

and permanent,” rather than “occasional or temporary,” id.

(quoting United States v. Germaine, 99 U.S. 508, 511–12 

(1878)). For example, SEC Administrative Law Judges 

qualify as officers because they “hold a continuing office 

established by law” and exercise “all the authority needed to 

ensure fair and orderly adversarial hearings” before issuing 

“decisions containing factual findings, legal conclusions, 

and appropriate remedies.” Id. at 2053.

For the same reasons, Immigration Judges and BIA

members also qualify as officers. Their responsibilities are 

legally defined and continuous. See 8 U.S.C. § 1229a 

(Immigration Judges); 8 C.F.R. § 1003.1 (members of the 

BIA). And they wield substantial authority: Immigration 

Judges conduct adversarial hearings in removal proceedings, 

see 8 U.S.C. § 1229a(b)–(c), and BIA members perform

substantive appellate review of Immigration Judges’ 

removal determinations, leading to decisions that combine 

factual and legal analysis and that order suitable remedies, 

see 8 C.F.R. § 1003.1(d).

The key question here is whether Immigration Judges 

and BIA members are principal or inferior officers. When 

distinguishing between these types of officers, we mainly
DUENAS V. GARLAND 7

look at whether the officer’s work is “‘directed and 

supervised at some level’ by other officers appointed by the 

President with the Senate’s consent.” Free Enter. Fund v. 

PCAOB, 561 U.S. 477, 510 (2010) (quoting Edmond v. 

United States, 520 U.S. 651, 663 (1997)); see also Seila Law, 

140 S. Ct. at 2199 n.3. 

Under this framework, Immigration Judges and BIA 

members are inferior officers. The Attorney General—who 

is appointed by the President with the consent of the Senate, 

28 U.S.C. § 503—ultimately directs and supervises the work 

of both officials. See 8 U.S.C. § 1101(b)(4) (“An 

immigration judge shall be subject to such supervision and 

shall perform such duties as the Attorney General shall 

prescribe . . . .”); 8 C.F.R. § 1003.1(a)(1) (“[Members of the 

BIA] shall . . . act as the Attorney General’s delegates in the 

cases that come before them.”). 

And because they are inferior officers of the United 

States, the Appointments Clause allows Congress to vest 

their appointment in the head of a department. U.S. Const. 

art. II, § 2, cl. 2. The Attorney General qualifies as the head 

of a department, as he or she leads the Department of Justice. 

28 U.S.C. § 503; see Free Enter. Fund, 561 U.S. at 510 

(establishing that the executive departments enumerated in 5 

U.S.C. § 101—including the Department of Justice—

constitute departments under the Appointments Clause). 

And Congress has charged the Attorney General with the 

responsibility of appointing Immigration Judges and 

members of the BIA. 8 U.S.C. § 1101(b)(4) (Immigration 

Judges); 8 C.F.R. § 1003.1(a)(1) (members of the BIA).2

2 No statute specifically governs the appointment of BIA members. But 

Congress authorized the Attorney General to enact the regulations 

establishing the BIA (which is housed in the Executive Office for 
8 DUENAS V. GARLAND

The Attorney General’s involvement in this process 

maintains “clear lines of accountability—encouraging good 

appointments and giving the public someone to blame for 

bad ones.” Lucia, 138 S. Ct. at 2056 (Thomas, J., 

concurring). In short, the appointment process for 

Immigration Judges and BIA members satisfies Article II 

and the principles that it protects.

II. The removal process for Immigration Judges and 

BIA members also satisfies Article II.

Article II requires that officers remain accountable to the 

President—and ultimately to the people—by limiting 

restrictions on the removal of the President’s subordinates. 

Seila Law, 140 S. Ct. at 2191–92. If Congress has vested the 

appointment of inferior officers in the head of a department, 

“it is ordinarily the department head, rather than the 

President, who enjoys the power of removal.” Free Enter. 

Fund, 561 U.S. at 493. (The President, of course, can direct 

the department head to remove an inferior officer and can 

also dismiss the department head, holding him or her “to 

account for . . . supervision” of the officer. See id. at 495–

96.) 

Relying on Free Enterprise Fund v. PCAOB, 561 U.S. 

477 (2010), Amador Duenas questions the constitutionality 

of the removal process for Immigration Judges and BIA 

members. He maintains that no statutory provision 

expressly provides for their removal. But there can be no 

doubt that the Attorney General enjoys the power to remove 

Immigration Judges and members of the BIA, just as he or 

Immigration Review, 8 C.F.R. § 1003.1(a)(1)), and thus, by extension, 

vested the power to appoint the BIA’s members in the Attorney General 

as well. See 6 U.S.C. § 521.
DUENAS V. GARLAND 9

she enjoys the power to appoint them. Cf. Myers v. United 

States, 272 U.S. 52, 119 (1926) (noting “the well-approved 

principle of constitutional and statutory construction that the 

power of removal of executive officers was incident to the 

power of appointment”). 

And Free Enterprise Fund does not support Amador 

Duenas’s argument. In that case, the Court determined that 

a double layer of for-cause protection violated Article II 

because it insulated an official from presidential oversight 

and removal. 561 U.S. at 495–96. Amador Duenas has 

identified no such limit on the Attorney General’s ability to 

dismiss Immigration Judges or BIA members at will. Thus, 

the removal process for these officials complies with Article 

II, as they “remain dependent” on the Attorney General for 

their positions—and by extension, on the President. See 

Seila Law, 140 S. Ct. at 2211.

CONCLUSION

We hold that the appointment and removal process for 

Immigration Judges and members of the BIA comports with 

Article II of our Constitution. For these reasons and those 

set forth in our accompanying memorandum disposition, we 

DENY Amador Duenas’s petition for review.