Enforcing/protection Arguing Against Chevron Deference in Asylum and Withholding of Removal Cases

• Publication year: 2020

Maureen A. Sweeney^*

act: This article presents a timely argument that federal courts should not apply Chevron deference to Board of Immigration Appeals (BIA) or Attorney General (AG) decisions on asylum or withholding of removal. The Supreme Court's Chevron case law has identified a range of factors that properly limit the application of deference to agency decisions, including the nature and expertise of the agency and the likelihood that Congress would have intended to confer essentially unreviewable discretion to the executive agency on a particular question. Using this framework, litigators should argue that Chevron deference is inappropriate in the asylum/withholding context because of (1) the non-negotiable treaty source of the obligation to protect, (2) the prosecutorial and politically responsive nature of the Justice Department in immigration, (3) the BIA's and the AG's lack of expertise in the international and comparative law that should inform humanitarian law, and (4) the political and personal vulnerability of asylum seekers.

One of the biggest challenges for a litigator trying to overturn a Board of Immigration Appeals (BIA or Board) decision on petition for review in the federal court of appeals can be overcoming Chevron deference. Under Chevron,¹ a reviewing court is instructed that whenever there is an ambiguity in a statute, it should defer to any reasonable interpretation given by the executive agency that implements the statute. In other words, the court will not rigorously review a decision to ensure the best legal interpretation, but rather should defer to any interpretation by the agency that passes the bar of "reasonableness." In the context of humanitarian protection, this means that federal courts of appeals will often defer to BIA and Attorney General (AG) decisions interpreting eligibility for asylum or withholding of removal when the meaning of the statute is not clear. For an asylum or withholding applicant, this restricted review by the court can mean the difference between protection and deportation back to danger.

Chevrons presumption of deference has been justified on separation of powers and agency expertise grounds, and because it preserves political accountability for policy decisions. However, it is not a good fit for the context of Department of Justice (DOJ) decisions on asylum and withholding, in which fundamental individual rights are at stake, especially when politicized agency leadership has shown outright hostility to the enforcement of the law's protective measures. The danger of bias is structurally inherent to an executive agency charged with both enforcing border security and ensuring humanitarian protection.

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Chevron jurisprudence is not a monolith, however. The Supreme Court's developing case law on deference and Chevron in fact leaves room for an interpretation that would decline deference to the Board or the AG and would require robust judicial review of decisions affecting asylum or withholding of removal law.

This article gives some background on Chevron and lays out an argument that courts should categorically deny Chevron deference in asylum and withholding cases because of: (1) the non-negotiable treaty source of the government's legal obligations, (2) the prosecutorial nature of the DOJ with regard to immigration, (3) the Board's and the AG's lack of any special expertise in the international and comparative law that should inform asylum and withholding law, and (4) the extreme political and personal vulnerability of asylum seekers. These factors—all appropriate considerations under contemporary Supreme Court deference analysis—weigh in favor of eschewing Chevron in asylum and withholding cases in favor of robust judicial review of BIA and AG decisions.

The Chevron Holding, Its Theoretical Underpinnings, and Recent Developments

In its 1984 Chevron decision, the Supreme Court addressed the balance of decision-making authority between administrative agencies and the courts. The question was: Where a statute is ambiguous because Congress either did not foresee or did not choose to address a policy question that arises in implementation, which of the remaining branches of government should have preference to answer the implementation question? Chevron held that where Congress does not say otherwise, it should be presumed to have delegated the power to interpret the ambiguous statute to the executive agency charged with implementing it, rather than to the courts.² Thus, where Chevron deference is held to apply, a reviewing court should defer to any reasonable interpretation made by the executive agency, even if the court might find a different interpretation to be preferable.

Chevron deference has been justified on a number of grounds. The Court itself discussed the issue in terms of the separation and balance of powers between the branches of government, concerned about overreach by the judiciary into policy questions for which it had neither expertise nor political accountability. The decision is predominantly grounded in these separation of powers principles and establishes a hierarchy of government authority for policy decisions: legislative intent trumps executive implementation, which in turn is given deference over judicial interpretation where the legislature has left a statute ambiguous. The presumption in favor of agency decision-making has been explained as fulfilling an unspoken understanding of Congress that unanswered issues would be resolved by the implementing agency.

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Part of the logic for this presumption is the idea that the agency, because of its focus and practical experience, will be a better decision-maker because it has expertise in the matter at hand. The Chevron Court, faced with a technical policy question about the classification of pollution emitters under the Clean Air Act, acknowledged that an understanding of the policy implications of that question required more than ordinary knowledge and that the justices were "not experts in the field." Given its lack of expertise, the Court found it preferable to leave the policy question for the agency to answer. One study showed that in the decades since Chevron, courts have granted the most substantial deference in cases arising in technically complicated areas like environmental science, energy, intellectual property, pensions, and bankruptcy.³

Finally, the Chevron Court expressed concern for political accountability, describing the subject of the contested decision-making in that case as "policy-making" and as "assessing the wisdom of . . . policy choices and resolving the struggle between competing views of the public interest." The Court held that this policy-making function was properly left to the political branches, which could ultimately be held accountable by their constituents for these normative choices: "[F]ederal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do."

But the implementation of the Chevron principle has been anything but straightforward, and the reach of the doctrine has been increasingly limited over the years. What appeared at first blush to be a sweeping and categorical preference for executive over judicial authority has gradually been narrowed and qualified. The Supreme Court's skepticism of agency deference has only accelerated in recent years, as justices' predominant concerns have shifted from judicial overreach to runaway executive agencies.⁴ Some justices now suggest that the doctrine should be reconsidered altogether, as an improper "thumb on the scale" for executive agencies or even a violation of the separation of powers.⁵ As both a practical and theoretical matter, Chevrons broad sweep has been narrowed over the years as the Supreme Court and lower courts have tried to find appropriate limiting principles for its broad language.

As early as 1987, the Supreme Court clarified its holding in separation of powers terms, by reasserting the primacy of courts to interpret statutory language, drawing attention to the first step of what would become Chevrons two-step analysis. In Step One, a reviewing court is required to use all the "traditional tools of statutory construction" to discern the intent of Congress.⁶ In other words, where a statute's meaning can be discerned, it is the job of the court to ensure that its terms are given the effect that Congress intended, regardless of any agency position. In balance of powers terms, Step One preserves to Congress the power to write the law and to the courts the power to "say what the law is."⁷ It is only if the court finds that the intent of Congress is unclear—that there is an unresolvable ambiguity in the law—that the court should go to Chevrons Step Two, which requires the court to defer to reasonable agency interpretations.

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Beyond Step One, courts have found a variety of other ways to limit automatic Chevron deference where they perceive that it was unlikely that Congress would have intended to shift authority to an agency because of the nature of the question or of the agency, or of the relationship between the two. Many of these principles have come to be known as "Step Zero" considerations, because they remove a question from the reach of Chevron even before a court engages the analysis of Step One or Step Two. Over the years, the Supreme Court has become increasingly willing to sidestep deference entirely in this way; that is, to not presume that Congress intended to delegate authority to an agency to clarify statutory ambiguities. Most recently, in Kisor v. Wilkie, a 2019 case involving deference to an agency's interpretation of its own regulations, the Court stated that the presumption of agency deference should not be given effect "when the reasons for that presumption do not apply, or countervailing reasons outweigh them."⁸ The first decision considered to have employed Step Zero was United States v. Mead Corp. in...