Inherent Power — Appellate Courts

Lin v. United States Dept. of Justice, 2007 U.S. App. LEXIS 1875 (2d Cir. Jan. 5, 2007), a petition for review of an asylum request that was denied, presented the Court of Appeals with a conundrum. Newly available evidence strongly indicated that the petitioner would be forcibly sterilized if returned to China. While the Court agreed with the petitioner that the new evidence required consideration by the Bureau of Immigration Appeals, the Court agreed with the government there was no statutory mechanism by which a party other than the government may move a Court of Appeals to remand to the BIA, following Congress’s removal of that power in its amendment of 28 U.S.C. § 2347(c) in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009. The question, then, was whether the Court of Appeals possessed the inherent equitable power to remand cases to administrative agencies for further proceedings in sufficiently compelling circumstances. The Second Circuit, in dicta, indicated its belief that it did possess that power, relying heavily on the Supreme Court’s decision in Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the opinion that clarified the inherent judicial power to impose sanctions for bad faith litigation abuse: ‛We do not necessarily construe Congress's decision to deprive parties of the § 2347(c) mechanism as indication that Congress also intended to take away our inherent power to remand.... As we have recently stated, ‘we do not lightly assume that Congress has intended to depart from established principles such as the scope of a court's inherent power.’ Armstrong v. Guccione, 470 F.3d 89, 102 (2d Cir. 2006) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991)). Rather, before we will conclude that Congress intended to deprive us of our inherent powers, we require ‘something akin to a clear indication of legislative in-tent.’ Id. Moreover, when Congress establishes a procedure to limit or cabin our power to take an action in one context that we previously could perform in the exercise of our inherent powers, we do not presume that Congress intended to eliminate our inherent power to accomplish that result. See Chambers, 501 U.S. at 50 (‘[N]either is a federal court for-bidden to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under [a] statute or the Rules [of Civil Procedure].’); Armstrong, 470 F.3d at 102 (‘[I]t is possible for statutory and inherent sources of judicial authority to coexist.’).“ This discussion, however, is only dicta because the government agreed to the remand, and the Court clearly had statutory authority to remand on the government’s motion.

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