Chevron Defiance

JurisdictionUnited States,Federal
CitationVol. 5 No. 2
Publication year2023

Chevron Defiance

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Adapting Shifting Norms in Administrative Law to Immigration Enforcement

Patrick Gilsenan *

Abstract: At the crossroads of immigration law and administrative law is the doctrine of Chevron deference, which determines the scope and extent to which a federal court should defer to a federal agency's interpretation of a statute, including the Immigration and Nationality Act (INA). Chevron, once a bedrock of conservative deregulation efforts, has fallen out of favor with the conservative legal movement. In the upcoming case Loper Bright Enterprises v. Raimondo, the Supreme Court agreed to hear a request to overrule Chevron, possibly ending the doctrine once and for all. This article argues that immigration advocates and attorneys need not mourn Chevron should that come to pass, but to use its demise as an opportunity to challenge the government on its interpretations of the INA to better advocate for immigration reform and for clients.

Introduction

In 1970, Congress created the Environmental Protection Agency (EPA), authorizing the agency to define and enforce environmental standards pursuant to the Clean Air Act. 1 Ten years later, when Ronald Reagan was elected president of the United States, the New York Times declared on Reagan's inauguration day that "Environmental Action Enters New Era," as his intentions to deregulate and roll back the Clean Air Act were well known. 2 In a bit of foreshadowing, Reagan appointed Anne Gorsuch, mother of the current Supreme Court Justice, as EPA administrator with a mission to roll back environmental protections. 3 After years of the EPA's attempts to redefine and deregulate environmental protections being thwarted by the courts, one case in 1984 changed the landscape for administrative agencies for decades to come: Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 4

The case and the rapid adoption of its two-step analytical framework by the D.C. Circuit in the 1980s granted administrative agencies wide latitude to interpret their governing statutes through the concept of "Chevron deference." 5 Republicans wielded the ruling to advance the Reagan administration's deregulatory agenda without the need for new legislation or defending challenges in the courts. 6 Legal scholars noted that mainstream conservatives did not appear to oppose Chevron until the Obama presidency, previously differentiating their

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distaste for administrative regulation from their use of administrative power. 7 Since 2012, however, there has been a growing call from the right to eliminate Chevron deference entirely. 8 As noted by Craig Green, Barack Obama's reelection and use of administrative power presaged a shift in mainstream conservative circles regarding Chevron's use. 9

The conservative opposition to Chevron appears to have borne fruit with the current makeup of the Supreme Court, as its demonstrated hostility toward Chevron deference could see it overturned or significantly weakened. However, this article contends that there may be a silver lining in the weakened administrative state when it comes to immigration law and policy. Government agencies involved with immigration have significant authority over interpreting laws and policies, benefiting significantly from judicial deference. There is an opening for immigration advocates to follow the anti-administrative path charted out by conservatives and use it to challenge government power in their realm.

This article begins by surveying the various government agencies involved in immigration law and policy. Then, the article provides a brief overview of the Administrative Procedure Act, rulemaking, and adjudication, and the role that judicial review and deference plays in the context of immigration. The section "The Decline of Chevron" addresses the waning influence of Chevron deference and the implications of judicial review absent the doctrine. Then, the next section proceeds with a discussion of Matter of Y-L-, A-G-, R-S-R- (Matter of Y-L- ) as a specific instance of how the shift in the courts' attitude toward administrative agencies may lead to a willingness to question limits on the attorney general's discretion. 10 Finally, this article offers final thoughts on how immigration law and administrative law jurisprudence interact.

Immigration Agencies in the United States

Immigration law and policy is statutorily governed by the Immigration and Nationality Act (INA). 11 Under its current formulation, restructured after the Homeland Security Act of 2002, primary responsibility for enforcing and administering immigration laws was given to the newly created Department of Homeland Security (DHS) and the separate agencies within DHS. The three agencies under DHS are the U.S. Citizenship and Immigration Services (USCIS), which is responsible for administering immigration benefits and services; Immigration and Customs Enforcement (ICE), which is responsible for investigations, detention, and removal of noncitizens; and Customs and Border Protection (CBP), which enforces immigration and customs law at ports of entry.

Despite being tasked with the enforcement of federal laws in the United States, the attorney general and the Department of Justice (DOJ) retain only limited enforcement powers. Instead, the DOJ is responsible for overseeing

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adjudications of DHS administrative actions through the Executive Office of Immigration Review (EOIR), a branch of the DOJ. Immigration courts and immigration judges are both within EOIR, and in the case of appeal, cases go to the Board of Immigration Appeals (BIA), which also sits within the EOIR and DOJ. The BIA "[provides] clear and uniform guidance" on immigration law, and it has the power to create binding precedent. 12 The BIA's authority is delegated to it from the attorney general, 13 who retains review authority on certification. 14

This alphabet soup of government agencies has led to a highly decentralized administrative structure that creates confusion and credible concerns that immigration courts lack meaningful independence. While it is not unusual for administrative agencies to have administrative law judges (ALJs) adjudicate matters within the agencies' jurisdictions, immigration judges are attorney employees of the DOJ and directly answerable to the nation's chief prosecutor, the attorney general. 15 The American Bar Association, the American Immigration Lawyers Association, the Federal Bar Association, and the National Association of Immigration Judges sent Congress a letter in 2019 urging them to move the immigration court system out from under the DOJ due to the inherent conflicts of interest the attorney general and immigration judges face. 16

The Administrative Procedure Act and Judicial Review

The federal regulatory state generally functions through government agencies, such as the agencies responsible for immigration law and policy noted in the previous section. Additionally, like the INA, agencies' actions are authorized by the agency's governing statutes. Beyond the governing statute, the rules that govern government agencies are established in the Administrative Procedure Act (APA). 17 The APA establishes procedures for the two main methods of agency action, rulemaking and adjudication, and establishes the judicial review of those actions. 18 The APA judicial review standards apply whenever Congress has made an action "reviewable by statute" and the action is a "final agency action for which there is no other adequate remedy in a court." 19

When considering judicial review of agency actions, courts have developed doctrinal tests, such as the test announced in Chevron. 20 In interpreting a statute, Chevron established that a federal court will defer to an agency's interpretation of the statute it administers under certain circumstances. Through a two-step analysis, the federal court will first ask whether the plain language of the statute answers a question at issue. 21 If the statutory language is ambiguous, the court will then determine whether the agency's construction of the statute is reasonable. 22 If the agency's construction of the statute meets this standard, the court will defer to the agency interpretation,

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even if the judge does not otherwise believe the interpretation to be correct. 23 The motivation for this structure is that the comparative expertise held by federal agencies in their area of law, in theory, greatly outweighs that of a judge. 24 As such, an agency must be mindful of the APA in its actions but can generally rely on Chevron when determining their authority to conduct said actions.

Rulemaking

The APA provides procedural requirements for two methods of rulemaking: formal rulemaking and informal rulemaking. Formal rulemaking is a rarely used trial-like adversarial proceeding before an ALJ. 25 Informal rulemaking is the dominant method and requires that the agency give notice by providing "(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved." 26 The agency must then provide interested parties an opportunity to submit comments on the proposed rule, and "[a]fter consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose." 27 Failure to comply with these procedures can render an agency rule invalid. 28

The APA, however, provides exceptions for interpretive rules and policy statements. 29 Specifically, the APA distinguishes between "interpretive rules" that merely interpret existing statutes or rules and "legislative rules" that bind with the force of law. 30 Agencies have an incentive to utilize interpretive rules whenever allowed, as legislative rules must go through notice and public comment...

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