Interring the Immigration Rule of Lenity

JurisdictionUnited States,Federal
CitationVol. 99
Publication year2021



Patrick J. Glen [*]


The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tiebreaker of sorts: a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even this rhetorical role has been called into question with the advent of Chevron deference. The raison d'etre of the rule was to provide the basis of decision when the court was confronted with two equally plausible interpretations of a statutory provision. Chevron now fills that gap, and there seems no room left for the immigration rule of lenity in modern administrative law. Rather than continue to allow this outmoded rule of decision to stalk argumentation in immigration cases, the Supreme Court should simply euthanize and inter the rule at the earliest opportunity.


I. Introduction .......................................... 534

II. Genesis and Refinement: The Rule of Strict Construction, 1947-1958 .............................. 537
A. Genesis: Delgadillo and Fong Haw Tan ............ 538
B. Refinement and Application, 1950-1958 ............ 546

III. The Immigration Rule of Lenity in the Supreme Court, 1964-Present ......................................... 553


A. Pre-Chevron Applications: Costello and Errico ...... 553
B. Chevron Deference and Immigration Law .......... 558
C. Post-Chevron Applications: An Outmoded Rule ..... 561

IV. Contextualizing the Role of Lenity in Immigration Cases ................................................. 570
A. Strict Construction in Criminal Cases ............. 571
B. How or Why Would Lenity Fit Within the Deference Framework? ....................................... 577
1. Step One? ..................................... 577
2. Step Two? ..................................... 580
3. Relevance "Outside" Chevron? .................. 583
C. Typological Distinctions and Lenity ................ 586
D. The Unnecessity of Lenity ......................... 589

V. Conclusion ............................................ 593


Reviewing briefs filed before the Supreme Court in immigration cases over the past decade, one could be forgiven for believing that the so-called "immigration rule of lenity" is a vibrant and integral component of the Court's approach to statutory interpretation. It has been raised to argue, inter alia, that a second controlled-substance possession conviction may be a "drug trafficking crime" under the Immigration and Nationality Act (INA) only where the prosecutor has sought and obtained a recidivist enhancement; [1] that tax crimes are categorically excluded from the INA's provision relating to criminal offenses involving fraud or deceit; [2] that a state statute must contain a jurisdictional element in order for the offense to correspond to a federal analog; [3] that whatever else "sexual abuse of a minor" may mean, it does


not include statutory rape offenses in states where the age of consent is sixteen or seventeen; [4] and that a charging document that omits the "time and place" of the alien's initial removal hearing should not trigger the cessation of continuous physical presence for purposes of establishing eligibility for cancellation of removal. [5]

The rule, first enunciated in the late 1940s, is framed as a tiebreaking rule of strict construction: when a provision of the INA can be read in two plausible ways, a reviewing court is bound to adopt the less restrictive or harsh reading of the statute. [6] In other words, in cases of doubt, that doubt should be resolved in line with the interpretation that would entail the least adverse consequences for the alien facing deportation or seeking relief from removal. [7] The problem is, however, that although frequently invoked by the immigration bar and often paid lip service to by the Supreme Court itself, the rule has never done significant work in interpreting the immigration laws. It has invariably been a tool of absolute last resort, brought to the table of decision only once an interpretation has been settled upon and invoked, i.e., only as a final justification in support of a construction al-


ready sufficiently supported by traditional tools of interpretation. Even assuming the rule has done work in the past, its irrelevance in a post-Chevron world is clear: if there are two plausible interpretations of a statutory provision, the agency's interpretation must control so long as reasonable and permissible, and regardless of whether another interpretation is in some sense "better" or preferred by the reviewing court.

This Article seeks to fill the role of Antony: "I come to bury" the immigration rule of lenity, "not to praise" it. [8] The Supreme Court should, at the earliest opportunity, inter the rule as the anachronism it is. As already stated, it is questionable as to whether the rule has ever played anything but a rhetorical role in the decisions of the Supreme Court. But whatever its historical legacy may be, it has no further service to pay in the deference-oriented world of the modern administrative state. The Chevron framework establishes the appropriate tiebreaking mechanism for interpretations of ambiguous statutory provisions, and the immigration rule of lenity has no work to do within that framework and no relevance outside it.

This Article proceeds in three Parts. The first Part traces the formative years of the rule, its initial genesis and the Supreme Court's subsequent refinements. This Part demonstrates the shaky foundations of the rule in cases where there was no serious debate over the scope of the proper interpretation of the statute. In other words, the rule is developed not only in cases where it plays no role in the decision but also in cases where the parties and the Court itself were more or less on the same page regarding how the statute should be interpreted. This shaky foundation is not solidified by the Court's subsequent "refinements" of the rule, and in any event, the rule continued to play only an adjunct role to decisions through the late 1950s. The second Part advances the timeline to 1964, with the first section addressing the two most significant post-1958, pre-Chevron decisions presenting the issue. Although a closer call, these cases too provide little indication of a meaty role for lenity. The second section heralds the advent of Chevron and its application in immigration cases, with the third section then proceeding to the Supreme Court's post-Chevron lenity decisions. Finally, the third Part addresses the question of what role lenity could play in contemporary administrative law. This Part begins by reviewing the rule of strict construction of penal statutes, i.e., the criminal or traditional "rule of lenity." This review provides a baseline of sorts for how lenity may operate in the immigration context, but it is also tempered by the strictures of Chevron. Thus, this Part proceeds to assess the question of how or why lenity could operate within the Chevron framework. It concludes that whether at step


one or step two, lenity is out of place, while also rejecting a proposed "outside-Chevron" role for lenity. In the end, however, this Part concludes that the death of lenity should be of little moment; the concerns that animated lenity are more or less safeguarded by the Chevron framework. Under Chevron, as under lenity, there is no risk that aliens will be subject to arbitrary, capricious, or irrational interpretations of the immigration laws.


This Part traces the origins of the immigration rule of lenity from the late 1940s to the late 1950s, essentially the "foundational" period for the rule. In some ways, this temporal scope is arbitrary; structurally, this Part could also fold in the two cases from the 1960s discussed infra and frame the discussion as effectively two periods divided by the advent of Chevron deference in 1984. The instant framing makes sense for two reasons. First, the foundational period is, on the whole, concerned with statutory provisions that predate the enactment of the Immigration and Nationality Act in 1952. It thus makes sense to treat this class of cases separately from the cases that implicate the rule and began to arise in the 1960s. The unifying characteristic of Part III of this Article, therefore, is the law to be applied, and a similar point could be made about this Part. Second, the rule was "accepted" to a larger degree by 1964. This Part is not concerned with application of an accepted rule, but with tracing the origins of that rule-why and how it arose and was given shape by...

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