The Volokh Conspiracy

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On The Loper Bright Side For Immigration Lawyers

How will the Board of Immigration Appeals operate in a world without Chevron?


Several months ago, a reporter from a national outlet called to talk about Chevron deference in immigration. Apparently, immigration lawyers were (quietly) thrilled that Chevron deference was on the chopping block. That decision requires the Board of Immigration Appeals to defer to the executive branch when interpreting an "ambiguous" provision of the immigration laws. Most immigration lawyers are left of center, and they did not dare file an amicus brief on this issue in Loper Bright, but I've heard they were eagerly looking forward to the Court's decision. And such has come to pass.

Indeed, Justice Gorsuch cites immigration law as a justification to overrule Chevron.

In another case, one which I heard as a court of appeals judge, De Niz Robles v. Lynch, 803 F. 3d 1165 (CA10 2015), the Board of Immigration Appeals invoked Chevron to overrule a judicial precedent on which many immigrants had relied, see In re Briones, 24 I. & N. Dec. 355, 370 (BIA 2007) (purporting to overrule Padilla–Caldera v. Gonzales, 426 F. 3d 1294 (CA10 2005)). The agency then sought to apply its new interpretation retroactively to punish those immigrants—including Alfonzo De Niz Robles, who had relied on that judicial precedent as authority to remain in this country with his U. S. wife and four children. See 803 F. 3d, at 1168–1169. Our court ruled that this retrospective application of the BIA's new interpretation of the law violated Mr. De Niz Robles's due process rights. Id., at 1172. But as a lower court, we could treat only the symptom, not the disease. So Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different "reasonable" one and in that way deny relief to countless future immigrants.

Justice Kagan also alluded to immigration in her dissent. She suggests that–contra Justice Gorsuch–the Court would still allow deference doctrines in immigration cases that involve "mixed questions" of fact and law:

It first appears to distinguish between "pure legal question[s]" and the so-called mixed questions in Gray and Hearst, involving the application of a legal standard to a set of facts. Ante, at 11. If in drawing that distinction, the majority intends to confine its holding to the pure type of legal issue—thus enabling courts to defer when law and facts are entwined—I'd be glad. But I suspect the majority has no such intent, because that approach would preserve Chevron in a substantial part of its current domain. Cf. Wilkinson v. Garland, 601 U. S. 209, 230 (2024) (ALITO, J., dissenting) (noting, in the immigration context, that the universe of mixed questions swamps that of pure legal ones).

For further reading, see this article on immigration law after Relentless in the NYU Law Review Online.

Update: Reason, which graciously hosts the Volokh Conspiracy, has a piece today titled Why the End of Chevron Could Be a Win for Immigrants. Here is a snippet:

Immigration lawyers and analysts who spoke with Reason about the end of Chevron stressed that it might take years to see the full effects of Friday's decision and cautioned against viewing it as a massive win for immigrants. That said, it represents a significant shift in several areas of immigration policy.

"On balance, I think getting rid of Chevron will be a modest net plus for immigration liberalization," says Ilya Somin, a law professor at George Mason University and a contributor to The Volokh Conspiracy. "I think overruling Chevron could potentially constrain some executive attempts at immigration restriction, especially really sweeping ones, like some of the ones contemplated by [former President Donald] Trump, should he return to power."

But Somin notes there are "strictures" to keep in mind—and adds that Chevron "seemed to be used a bit less in the immigration field than some others."

David J. Bier, director of immigration studies at the Cato Institute, a libertarian think tank, says he's "skeptical" that the ruling "will have a major effect in most immigration areas." On "certain employment-based issues, it could have an effect, though not entirely positive," he explains. Optional Practical Training, a temporary period of employment related to an international student's course of study, "was just upheld on deference grounds," Bier points out.