Chevron Meets the Categorical Approach.

• Author: Grammel, Shannon M.
• Position: NOTE

Table of Contents Introduction I. Doctrinal Background A. Chevron Deference B. The Categorical Approach 1. Some confusion at step one of the categorical approach 2. The preeminence of criminal law II. Tension in the Aggravated Felony Context A. Teasing Out the Tension B. The Supreme Court's Treatment of the Tension C. Lower Courts' Treatment of the Tension III. The Categorical Foreclosure of Chevron A. The Supreme Court's Approach B. A Proposed Explanation 1. Expertise and complexity 2. Text and context 3. Structure C. A Better Path Forward Conclusion Introduction

This Note explores the clash of two interpretive titans: Chevron deference and the categorical approach. The familiar doctrine of Chevron deference directs courts to defer to reasonable agency interpretations of the statutes those agencies are charged with administering. (1) The categorical approach, meanwhile, is used to answer the question whether a prior conviction qualifies as one for a generic crime listed in a given statute (2)--for instance, whether a Virginia conviction for "grand larceny" (3) counts as "a theft offense" within the meaning of the Immigration and Nationality Act (INA). (4) That approach bars courts from looking to the actual facts surrounding the prior conviction and permits them to consider only the statute defining the crime of conviction. (5) Only if all the elements of that statute fit entirely within the definition of the generic offense does the prior conviction qualify. (6)

These two methodologies clash when a federal court of appeals is asked to review Board of Immigration Appeals (BIA) decisions that use the categorical approach in defining an "aggravated felony" listed in the INA. (7) The INA uses the term "aggravated felony" as the basis for various civil and criminal penalties. (8) The term is defined as a list of more than fifty crimes or categories of crimes. (9) The BIA may encounter the aggravated felony definition in a number of situations. A noncitizen may challenge a removal decision premised on a conviction for an aggravated felony. (10) Or she may challenge a denial of asylum premised on such a conviction. (11) Regardless of context, the BIA is required to employ the categorical approach when it interprets the aggravated felony definition. (12) On appeal, the BIA--charged with administering the INA (13)--would appear to be the textbook candidate for Chevron deference. (14) Indeed, the Supreme Court has explicitly instructed that Chevron applies when the BIA interprets our immigration laws. (15) The Court has even gone so far as to say that deference is "especially appropriate" when it comes to immigration law. (16) Denying the BIA deference in the aggravated felony context would appear to defy these instructions. (17)

Yet that is precisely what the Supreme Court is doing. The Court has not once granted Chevron deference to a BIA interpretation of the INA's aggravated felony definition. (18) In fact, it has never squarely engaged with the question whether principles of Chevron deference even apply in the aggravated felony context in the first place. Time and again, the government has asked the Court to defer to the BIA's explications of the provision. And time and again, the Court has declined with virtually no explanation. (19)

The exact opposite is true in the lower federal courts. Those courts overwhelmingly grant Chevron deference to the BIA's reasonable interpretations of the aggravated felony definition, just as they would with any other INA provision. (20) Despite the clear trend in the Supreme Court's treatment of aggravated felony cases, these lower courts nonetheless believe their approach is "mandated" by the Court's more general immigration precedent. (21) They view themselves and their choice to defer as faithful to the Court's broad "determin[ation] that the special deference rules of Chevron apply to BIA interpretations" of the INA writ large. (22)

Some lower courts, however, disagree. The Third and Seventh Circuits, along with Judge Katzmann of the Second Circuit, have begun to question whether the Chevron framework even applies in the aggravated felony context. (23) These courts acknowledge that there may be something special about the aggravated felony definition as compared to the INA's other provisions. In particular, they highlight "the issue of what deference to accord an agency's interpretation of the statute it is charged with administering when that interpretation is itself based on the agency's construction of federal criminal statutes." (24)

The time is therefore ripe for definitive guidance on the matter. Should Chevron interact with the categorical approach in a way that diminishes Chevrons potency, the Court ought to clarify as much. Conversely, the Court should clarify whether it is merely silently determining that the BIA's interpretations fall short at a particular step of the Chevron analysis. Without such guidance, the odds of eventual harmony appear slim.

Nor has this tension between Chevron deference and the categorical approach in the aggravated felony context been squarely addressed in immigration scholarship. (25) While there has been robust debate about the relationship between Chevron deference and other interpretive canons--most notably, the rule of lenity and the so-called "immigration rule of lenity" (26)--that debate has largely ignored the possibility that the categorical approach's interpretive methodology itself renders the Chevron framework inappropriate. (27)

This Note proposes that the Supreme Court's apparent approach--that is, placing the aggravated felony definition beyond Chevron's domain--is the proper one. And given the Court's reticence on the matter, this Note proposes an explanation: The very nature of the categorical approach renders the BIA's interpretations of the aggravated felony definition categorically ineligible for Chevron deference. The categorical approach is all about crimes. Its first step entails defining a crime, and its second step entails comparing that crime to another crime. As one would imagine, this process calls for special reliance on and familiarity with criminal law itself. But the BIA possesses no expertise when it comes to criminal law. To the contrary, it is the courts that are charged with interpreting and administering criminal laws. And the categorical approach's prescribed methodology leaves little to no room for the BIA to exercise discretion. The extensive entanglement of the aggravated felony definition with federal criminal law casts serious doubt on the proposition that Congress meant Chevron to apply in this context.

It bears mentioning that the INA also contains other crime-based provisions. (28) And while this Note may have some bearing on the interpretation of those provisions, its conclusion does not necessarily apply wholesale. The criminal terminology employed in the INA's other crime-based provisions is not intertwined with federal criminal law the way the term "aggravated felony" is. (29) And a number of those other crime-based provisions may raise special concerns not implicated by the aggravated felony definition. (30) This Note therefore suggests that there is something special about the aggravated felony provision; there is a reason the Supreme Court has never deferred to the BIA's interpretations of that provision but has deferred to the BIA's interpretations of other crime-based provisions. (31)

This Note proceeds in three Parts. Part I provides a brief primer on Chevron deference and the categorical approach. Part II then turns to the area in which these interpretive titans most prominently clash: aggravated felony cases. As Part II illustrates, the Supreme Court and the lower courts have taken vastly different approaches to reconciling Chevron with the categorical approach. Part III explains why the Supreme Court's approach is the correct one. Specifically, it argues that because the aggravated felony definition must be interpreted according to the dictates of the categorical approach, the Chevron framework does not apply.

1. Doctrinal Background

   The aggravated felony definition sits at the center of an interpretive Venn diagram. The first circle comprises those instances in which Chevron deference could apply--when a court is tasked with reviewing an agency's interpretation of the statute it is charged with administering. The second circle encompasses those instances in which the interpretation of a particular statute calls for use of the categorical approach. This Part traces these two overlapping circles, briefly describing the mechanics, underlying rationales, and fields of applicability of these two interpretive doctrines.

   1. Chevron Deference

      Congress regularly entrusts agencies with administering the statutes it passes. (32) The Environmental Protection Agency, for instance, is entrusted with administering the Clean Air Act. (33) The BIA has similarly been charged with administering the INA. (34) When Congress doles out duties in this way, it understands that the discharge of those duties necessarily involves interpreting the terms of the statute being administered. It is thus by congressional design that ambiguities in those terms will "be resolved, first and foremost, by the agency." (35) To remain faithful to this design, courts typically defer to those interpretations so long as they are reasonable. (36) That practice has come to be known as Chevron deference.

      Mechanics'. Chevron deference entails two steps. At Step One, the court asks "whether Congress has directly spoken to the precise question at issue." (37) If it has, the court "must give effect to the unambiguously expressed intent of Congress." (38) But if it has not, the court proceeds to Step Two: assessing "whether the agency's answer is based on a permissible construction of the statute." (39) If so, the court defers to the agency's interpretation. (40)

      Before jumping into the Chevron framework, a court must...