Securities & Exchange Commn v. Chenery Corp., 318 U.S. 80, 87, 94 (1943) (reviewing courts only review the reasons invoked by the agency below and may not entertain post hoc rationalizations by government counsel in appellate litigation: The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based. . . . . [C]ourts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review.); Securities & Exchange Commn v. Chenery Corp., 332 U.S. 194 (1947); Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) (holding that the INS may not seek to have the BIA opinion upheld on the grounds that there was no reasonable fear of persecution because the letters were not authentic; the agency simply has not ruled on the authenticity issue, either implicitly or explicitly.); De Rivera v. Ashcroft, 394 F.3d 37, 40 (1st Cir. 2005) (Since the agency action, under Succar, cannot be sustained on the stated grounds, the appropriate remedy is to remand to the BIA for further proceedings consistent with the holding in Succar.); Song Jin Wu v. INS, 436 F.3d. 157, 164 (2d Cir. 2006) (It is not the function of a reviewing court in an immigration case to scour the record to find reasons why a BIA decision should be affirmed. Rather, we take the Board's decision as we find it, and if the reasoning it advances for denying a petitioners claim cannot support the result, we will vacate the decision.); Singh v. United States DOJ, 461 F.3d 290, 294 (2d Cir. 2006) (And we cannot, on appeal, substitute an argument " even one the BIA made in another context " for those that the BIA actually gave to support the conclusion [petitioner] disputes on appeal.); Garcia v. AG of the United States, 665 F.3d 496, 502 (3d Cir. 2011) ([W]e may affirm the BIAs decision only if we find that its stated reasons are correct, as it was the BIA"not the IJ"th.at provided the final and authoritative grounds invoked by the agency, citing Chenery); Qun Wang v. AG of the United States, 423 F.3d 260, 271 (3d Cir. 2005) (. . . we will not supply the basis for [the agencys] decision where appropriate reasons are not set forth by the administrative agency itself) (internal citations omitted); Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir. 2004) (. . . we are unable to square this practice [of taking judicial notice of post-final order country reports] with the clear command from SEC v. Chenery Corp. that courts reviewing the determination of an administrative agency must approve or reject the agencys action purely on the basis of the reasons offered by, and the record compiled before, the agency itself.)(internal citation omitted); Li Fang Lin v. Mukasey, 517 F.3d 685, 693-94 (4th Cir. 2008) (Here, we cannot review the BIAs decision because the BIA has given us nothing to review. We would run the risk of violating fundamental separation-of-powers principles if we attempted to divine the BIAs thoughts on this matter and tried to build a legal conclusion in a veritable vacuum where BIA interpretation should always first exist.); Island Creek Coal Co. v. Henline, 456 F.3d 421, 426-27 (4th Cir. 2006) (We cannot accept the invitation to affirm the Boards rejection of Island Creeks statute of limitations defense on a ground not actually relied upon by the Board.); Garcia Carias v. Holder, No. 11-60550, -- F.3d --, 2012 U.S. App. LEXIS 20284, *7-8 n.1 (5th Cir. Sept. 27. 2012) (stating [b]ecause the timeliness of Garcias motion was not addressed by the Board, we will refrain from reaching this issue, citing Chenery); Enriquez-Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010) ([S]ince the BIA is a division of the Executive Office for Immigration Review (EOIR), and a judicial judgment cannot be made to do service for an administrative judgment, . . ., we may usually only affirm the BIA on the basis of its stated rationale for ordering an alien removed from the United States.) (internal citations and quotations omitted); Pruidze v. Holder, 632 F.3d 234, 240 (6th Cir. 2011) (These are all things the Board may do, but because we review what the Board did do . . . they are questions for another day, citing Chenery) (emphasis in the original); NLRB v. USPS, 833 F.2d 1195, 1201 (6th Cir. 1987) (This Court will not affirm the Board's actions based on reasons not relied upon by the Board itself.); Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir. 2007) (The Supreme Court of the United States has admonished, in Chenery I, that we may not sanction an agency decision based upon the posthoc rationalizations of appellate counsel for the agency's decision.) (citation omitted); Comollari v. Ashcroft, 378 F.3d 694, 696 (7th Cir. 2004) (As we tirelessly remind the lawyers from the Justice Department's Office of Immigration Litigation, , the Chenery rule bars a reviewing court from upholding an agency's decision on a ground different from the agencys) (citations to case examples omitted); Mengistu v. Ashcroft, 355 F.3d 1044, 1046 (7th Cir. 2004) ([The Chenery doctrine] forbids the lawyers for an administrative agency to defend the agencys decision on a ground different from that stated or at least discernible in the decision itself.) (citations omitted); Ngure v. Ashcroft, 367 F.3d 975, 984 (8th Cir. 2004) (It is, of course, a basic principle of administrative law that where agency action is subject to judicial review, the agency must provide an adequate reasoned explanation of its decision, referencing Chenery I and II); Mayo v. Schiltgen, 921 F.2d 177, 179 (8th Cir. 1990) ([A] reviewing court cannot search the record to find other grounds to support the [agencys] decision . . . [but] must consider the agencys rationale for its decision, and if that rationale is inadequate or improper the court must reverse and remand for the agency to consider whether to pursue a new rationale for its decision or perhaps to change its decision.) (footnote omitted); Altamirano v. Gonzales, 427 F.3d 586, 595 (9th Cir. 2005) (Chenery requires that an agencys discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself); Recinos de Leon v. Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) (We may affirm the IJ only on grounds set forth in the opinion under review, citing Chenery); Navas v. INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000) (rejecting government counsels post hoc rationalization, stating [t]his court cannot affirm the BIA on a ground upon which it did not rely.); Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007) ([T]his court may not create or adopt post-hoc rationalizations to support [an agencys] decision that are not apparent from the [] decision itself.); Contreras-Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012) (en banc) (While agencies have the power under certain circumstances to promulgate categorical rules that supplant individualized adjudication, . . . , we cannot uphold the Boards action on grounds not provided by the agency itself. ) (internal citation omitted); N.L.R.B. v. Episcopal Cmty. of St. Petersburg, 726 F.2d 1537, 1540 (11th Cir. 1984) ([A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.) (citation omitted); Druid Hills Civic Assn, Inc. v. Fed. Highway Admin., 772 F.2d 700, 714 (11th Cir. 1985) (If the record fails to show a sufficient basis for the administrative decision, the . . . determination must be overturned.).

Thanks to the National Immigration Project of the National Lawyers Guild for its practice advisory, entitled Immigration Litigation & the Chenery Doctrine.
http://nationalimmigrationproject.org/legalresources/practice_advisories...