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 D UENAS V

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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 Appoi ntments 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 th at 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 r eader.D UENAS V

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these officers remain dependent on the Attorney General for their positions

— and by extension, on the President.

In an accompanying memorandum disposition, the panel rejecte d 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

. T he President , however, remain s a nswerable to the

p eople , a nd the officials who work for the President, in turn,

remain a nswerable to him or her

. Th is structure ensures that

the Executive Branch

— and its vast power provided by the

Constitution

— remains accountable to the people

.
Article II protect s this chain of acc ountability

. It s Appointments Clause limits who can appoint executive

branch officers, making clear to the people who is4 D UENAS V

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responsible for good

— and bad

— appointees wielding considerable power

. See Lucia v. SEC , 138 S. Ct. 2044, 2056 (2018) (Thomas, J., concurring). A nd Article II bars a restriction on the President’s power to remov e officers if it

insulate s them from p residential 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 p eople leg itimizes 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 with in 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 no thing restricts the Attorney General’s ability to remove these officials

. Th is

process follows o ur Constitution and the separation

- of

powers 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.D UENAS V

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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, 1 045

– 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 Pre sident appoint the principal “Officers of the United States,” subject

to “ the A dvice and C onsent of the Senate. ” Id. § 2, cl. 2. Principal officers include cabinet heads and other high

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

Clau se also allows Congress to vest the appointment of “inferior” officers, who still exe rcise 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 the se 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 no minated by the President and confirmed by the Senate. He also

maint ai ns that the lack of a specific statutory provision governing their removal violates Article II . We reject these
arguments.6 D UENAS V

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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, o fficers , 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

, ” ra ther than “occasional or temporary,” id. (quoting United States v. Germaine , 99 U.S. 508, 511

– 12 (187 8 )). For example

, SEC Administrative Law Judges qualif y 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 remedi es.” 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 the y wield s ubstantial 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 mainlyD UENAS V

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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, 66 3 (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 b ecause 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 th e 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 Congr ess 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 for8 D UENAS V

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The Attorney General’s involvement in th is 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 r emoval process for I mmigration J udge s 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. ( T he 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 t he 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.D UENAS V

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

States , 272 U.S. 52, 1 19 (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 d oes not support Amador Duenas’s argument. In that case , the Cour t determined that a double layer of for

- cause protection violated Article II

because it insulated an official from p residential 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,

t h e 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, w e DENY Amador Duenas’s petition for review.