Precedents and Authorities Cited

• Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023): Held that INA § 1252(d)(1)’s exhaustion requirement is non-jurisdictional—a claim-processing rule subject to waiver and forfeiture. This abrogated prior Fifth Circuit precedent that treated exhaustion as jurisdictional and allowed the court here to reach the merits of the ultra vires claim on remand.
• 8 U.S.C. § 1103(g)(1): Confers on the Attorney General the authorities and functions previously exercised with respect to EOIR. The panel concluded this includes authority to appoint and reappoint temporary BIA members. The opinion discusses an ambiguous statutory cross-reference but deems it unnecessary to resolve because the Attorney General’s reappointment power predates any plausible effective date.
• 8 C.F.R. § 1003.1(a)(4) (2020 version): Permitted the EOIR Director to appoint temporary Board Members “for terms not to exceed six months.” The court reads this as a delegation that does not limit the Attorney General’s independent appointment authority, and as not prohibiting consecutive terms.
• Carreon v. Garland, 71 F.4th 247 (5th Cir. 2023): The Fifth Circuit took judicial notice of temporary BIA members’ reappointment paperwork and recognized renewal of six-month terms. Carreon informs both the approach to judicial notice and the reading that the regulation permitted term renewals.
• Flores-Valle v. Garland, No. 20-61130, 2023 WL 5133483 (5th Cir. Aug. 10, 2023) (per curiam): Also took judicial notice of reappointment paperwork.
• Nastase v. Barr, 964 F.3d 313 (5th Cir. 2020): Confirms jurisdiction under § 1252(a)(2)(D) to review legal questions, including whether a BIA decision was made ultra vires, even where other jurisdictional bars apply.
• City of Arlington v. FCC, 569 U.S. 290 (2013): Cited for the core ultra vires principle: agencies are creatures of statute and cannot act beyond congressional authorization. The panel quotes both the majority and the dissent on the limits of agency power.
• United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Ka Fung Chan v. INS, 634 F.2d 248 (5th Cir. 1981): Establish the Accardi doctrine that agencies must follow their own regulations, often analyzed under due process, not as ultra vires.
• Molina v. Sewell, 983 F.2d 676 (5th Cir. 1993): For a due process-based regulatory violation claim, an alien must show “substantial prejudice.”
• United States v. Croft, 87 F.4th 644 (5th Cir. 2023): Articulates the law-of-the-case principle on remand: absent a contrary mandate, prior rulings stand.
• Cross-circuit alignment on temporary BIA reappointments:
  • Salomon-Guillen v. Garland, 123 F.4th 709 (4th Cir. 2024): § 1003.1(a)(4) does not apply to the Attorney General’s appointment power.
  • Punin v. Garland, 108 F.4th 114 (2d Cir. 2024): The regulation “nowhere cabined” the Attorney General’s authority.
  • Bernardo-De La Cruz v. Garland, 114 F.4th 883 (7th Cir. 2024): The regulation does not strip the Attorney General of appointment power.
  • Rivera v. Garland, 108 F.4th 600 (8th Cir. 2024): The regulation’s text “simply does not address” additional terms and thus is not ambiguous; it “just means what it means.”
• Expanding the Size of the Board of Immigration Appeals, 89 Fed. Reg. 22630 (Apr. 2, 2024): A DOJ rulemaking noting that since 1998 eligible individuals have been repeatedly designated as temporary Board Members for consecutive six-month terms, and amending current regulations to make renewable terms explicit. The panel cites this history and amendment for context.

Legal Reasoning

The court structures its reasoning in two principal steps—statutory authority and regulatory compliance—with a threshold clarification about the nature of ultra vires review.

1. Ultra vires is fundamentally about statutory limits.

   Relying on City of Arlington, the court explains that an agency acts ultra vires when it operates beyond the authority Congress has conferred. Although the panel stops short of holding that an ultra vires claim necessarily requires a statutory violation in every instance, it underscores that regulatory missteps are ordinarily addressed, if at all, under procedural due process via the Accardi doctrine, not as ultra vires.

   Applied here, the petitioner framed his challenge exclusively as regulatory—arguing the BIA violated 8 C.F.R. § 1003.1(a)(4) because Board Member Monsky’s temporary term had expired. He did not press a constitutional due process theory, and thus the court analyzed the claim under the ultra vires rubric, asking first whether any statute was violated.

2. No statutory violation: The Attorney General’s reappointment authority is clear.

   Under § 1103(g)(1), the Attorney General retains the authorities and functions formerly exercised with respect to EOIR, which encompasses appointment and reappointment of BIA members. The court notes that the Attorney General has exercised this power to reappoint temporary Board members since 1998 and, consistent with recent Fifth Circuit practice, takes judicial notice of Monsky’s reappointment paperwork. Because Monsky was reappointed by the Attorney General before issuing the decision, there was no statutory overreach and thus no ultra vires act.

   The panel acknowledges an ambiguity in § 1103(g)(1)’s cross-reference to an unenacted statute’s “effective date,” but declines to resolve it. The historical practice predates any plausible effective date, rendering the ambiguity immaterial to the outcome.

3. No regulatory violation: § 1003.1(a)(4) (2020) neither restricts renewals nor constrains the Attorney General.

   Assuming arguendo that a purely regulatory defect could ground an ultra vires claim, the court finds no violation on two independent regulatory grounds:

   • Delegation, not limitation: The text of § 1003.1(a)(4) authorizes the EOIR Director to appoint temporary Board Members “for terms not to exceed six months.” It does not purport to limit or narrow the Attorney General’s independent statutory authority to appoint or reappoint Board Members. Because the Attorney General (not the EOIR Director) reappointed Monsky, the petitioner’s argument “collapses.” This reading tracks the 2d, 4th, and 7th Circuits’ interpretations.
   • Renewals are permitted: The regulation’s reference to “terms” imposes a six-month cap per term, but is silent on the number of terms and thus does not forbid consecutive terms. The Fifth Circuit (in Carreon) and other circuits (e.g., Rivera in the Eighth) have rejected the notion that silence on renewals creates an implied prohibition. Moreover, longstanding agency practice since 1998 confirms the availability of successive six-month designations for temporary Board Members—a practice later codified explicitly in the 2024 amendments.
4. Accardi and prejudice: why the regulatory argument still fails as due process.

   The court points out that the proper vehicle to challenge alleged violations of agency regulations is a due process claim under Accardi. Even if the petitioner had raised such a claim, it would fail without a showing of “substantial prejudice” (Molina v. Sewell). The petitioner did not allege prejudice, providing an additional reason the challenge could not succeed if reframed as constitutional.

Impact and Significance

This decision has several immediate and systemic consequences for immigration adjudication and administrative law within the Fifth Circuit and beyond.

• Stability of BIA adjudications by temporary members: The ruling forecloses ultra vires attacks premised on the supposed expiration of temporary members’ terms, provided the Attorney General has reappointed them. Given the volume of BIA cases decided by temporarily designated members over decades, this promotes substantial finality.
• Clarification of the Attorney General’s appointment power: The Attorney General’s authority to appoint and reappoint temporary BIA members is anchored in statute and is not curtailed by the EOIR Director-specific delegation in § 1003.1(a)(4). Future challenges should account for this division between statutory authority and regulatory delegation.
• Alignment with other circuits: The Fifth Circuit joins the Second, Fourth, Seventh, and Eighth Circuits in rejecting arguments that § 1003.1(a)(4) limits the Attorney General or prohibits renewals. This cross-circuit consensus further insulates BIA decisions from comparable procedural challenges.
• Post–Santos-Zacaria procedural posture: Because exhaustion under § 1252(d)(1) is a claim-processing rule, not jurisdictional, courts can reach the merits when appropriate (subject to waiver or forfeiture). Litigants should expect courts to consider whether the government has preserved exhaustion and, if not, to potentially proceed to the merits—especially for purely legal questions preserved by § 1252(a)(2)(D).
• Accardi doctrine channeled into due process (with a prejudice requirement): The panel’s reminders that regulation-based claims belong in due process—and require a showing of substantial prejudice—will shape how future procedural challenges are framed and litigated.
• Regulatory amendments diminish future disputes: The 2024 DOJ rule explicitly authorizing renewable temporary terms will reduce ambiguity going forward, further limiting the viability of tenure-based challenges.