Argument · I
The agency's reliance on Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), is misplaced. The Supreme Court's reasoning in Pereira v. Sessions, 138 S. Ct. 2105 (2018), forecloses the government's position with respect to 8 U.S.C. § 1229(a).
Even assuming, arguendo, that Sanchez v. Mayorkas, 593 U.S. 409 (2021), supports the agency's reading — and it does not — the regulation at 8 C.F.R. § 1003.42(g) would still require remand. Niz-Chavez v. Garland, 593 U.S. 155 (2021), is to the contrary.
Argument · II
Petitioner is entitled to review under 8 U.S.C. § 1252(a)(2)(D), the "questions of law" exception. Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020), settled this point. Patel v. Garland, 596 U.S. 328 (2022), did not disturb it.
And as Kisor v. Wilkie, 588 U.S. 558 (2019), held, agency deference does not save a regulation whose text won't bear the agency's reading. See also 8 C.F.R. § 1208.13.