In United States v. Avalos, --- F.4th ---, No. 23-3944 (9th Cir. 2025), the Court affirmed the district court’s denial of Jorge Alejandro Avalos’s motion to dismiss an indictment charging him with illegal reentry under 8 U.S.C. § 1326.
The issue was whether Avalos's underlyng administrative removal proceedings were fundamentally unfair because the deciding Service officer who issued the final administrative removal order was an “inferior Officer” under the Appointments Clause of the U.S. Constitution and had not been properly appointed.
At issue on appeal is whether deciding Service officers in administrative removal proceedings are “inferior Officers” subject to the requirements of the Appointments Clause of the United States Constitution. U.S. Const., art. II, § 2, cl. 2; 8 C.F.R. § 238.1. We hold that they are not.Avalos’s primary argument is that his underlying administrative removal proceeding resulted in the entry of a deportation order that was “fundamentally unfair” under § 1326(d)(3) because the deciding Service officer in that proceeding was an inferior officer who was not properly appointed under the Appointments Clause. The Appointments Clause provides that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const., art. II, § 2, cl. 2. While officers must be appointed in accordance with the Appointments Clause, the Constitution “cares not a whit” about who hires non-officer employees to their positions.The Supreme Court has identified two considerations for distinguishing between officers and employees. First, officers occupy “continuing position[s] established by law.” Id. (citing United States v. Germaine, 99 U.S. 508, 511–12 (1879)). Second, officers exercise “significant authority pursuant to the laws of the United States.” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam)). This inquiry “focuse[s] on the extent of power any individual wields in carrying out his assigned functions.” Id.We turn to the two considerations for determining whether individuals are officers or employees: (1) whether the individual holds a continuing position established by law, and (2) whether the individual exercises significant authority pursuant to the laws of the United States. Lucia, 585 U.S. at 245. Considering each in turn, we hold that deciding Service officers neither occupy a continuing position nor exercise significant authority, and therefore are not inferior officers.
