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Rethinking Chevron?

February 03, 2020 (5 min read)

Jeffrey S. Chase, Feb. 2, 2020

"The powers of the Attorney General and the Board of Immigration Appeals to influence law by issuing binding precedent decisions is greatly enhanced by what is known as Chevron deference.  The principle derives from a holding of the Supreme Court in its 1984 decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., in which the Court recognized the deference owed by Article III courts to an agency’s interpretations of statutes it administers.  The Supreme Court created a two-step test to determine when such deference is due. First, the court must consider whether the statutory language in question is ambiguous; if not, there is no need for agency interpretation.  If ambiguous, the court must determine whether the agency’s interpretation was based on a permissible construction of the statute (i.e. was it reasonable).

I would like to point out three recent scholarly articles which offer fresh approaches to determining the limits of the concept in the immigration law context. They offer the type of creative arguments that are worthy of our attention for their thoughtful refusal to cede the point to the government.  The first, by Richard Frankel, Associate Professor at Drexel University’s Thomas R. Kline School of Law, distinguishes precedent decisions issued on certification by the Attorney General from those issued by the BIA, and argues that the former should not merit Chevron deference from the courts.

In Deporting Chevron: Why the Attorney General’s Immigration Decisions Should Not Receive Chevron Deference, Frankel examines the regulatory underpinnings of Attorney General certification of immigration decisions, and the historical development of Chevron deference to agency head decisions.  Frankel notes the sweeping power of the former, as the regulations authorizing such certification “place no limitation on the scope of the Attorney General’s” review authority, as the A.G. is not bound by BIA precedent, reviews all issues de novo, “does not defer to prior factual findings or legal conclusions, and can even accept new evidence and make new factual findings.”

Frankel points out that whether or not a decision is accorded Chevron deference has a dramatic impact on whether the decision will be upheld on appeal.  Yet, Frankel notes that, in spite of the A.G.’s own assertion that his decisions are entitled to such deference, no court has directly addressed the question.

Frankel argues that none of the rationales for such deference cited by the Supreme Court in Chevron and refined in subsequent decisions apply to A.G. review of immigration decisions.  First, noting the Court’s mention of procedural formality as a criteria for according deference in United States v. Mead Corp., Frankel argues that the A.G. certification process actually removes cases from the procedural formality of the BIA’s appeal process and replaces them with the largely open-ended authority described above.  Frankel notes that certification actually transfers decision-making authority from those with subject matter expertise and experience (i.e. the BIA and IJs) to one lacking such expertise (the A.G.), thus undermining a second basis for deference cited by the court.

As to the third criteria, public accountability, Frankel raises the question of how appropriate it is for decisions that should presumably be made by one who is neutral and exercising independent judgment to instead be subject to one acting out of a motive “to advance the President’s immigration policy agenda.” Alternatively, Frankel argues that where the A.G. claims (as in recent decisions) to have issued such decisions free of political influence, the justification of political accountability as a basis for Chevron is undermined.

Frankel emphasizes the logical need for truly neutral determinations on individualized claims involving asylum and other humanitarian reliefs, and proposes that it would be more appropriate for A.G. decisions to be subject to the sliding-scale deference afforded by the Supreme Court’s pre-Chevron decision in Skidmore v. Swift, under which the amount of deference accorded depends on the thoroughness, reasonableness, and consistency of the decision in question.

In A Step Too Far: Matter of A-B-, “Particular Social Group,” and Chevron, Jaclyn Kelley-Widmer, Assistant Clinical Professor at Cornell Law School,  and Hillary Rich, staff attorney at Texas RioGrande Legal Aid, discuss why deference should not be accorded to the Attorney General’s decision in a specific case, Matter of A-B-, arguing that the decision satisfies neither step of the Chevron test.

I found the article’s discussion of step one particularly interesting.  To provide some context, in his concurring opinion in Pereira v. Sessions, Justice Kennedy took circuit courts to task for being too quick to find ambiguity under Chevron’s step one by engaging “in cursory analysis of the questions whether, applying the ordinary tools of statutory construction, Congress’ intent could be discerned.”  Some courts have responded by going to additional lengths to discern congressional intent before determining statutory language to be ambiguous.

Following a similar approach to that employed by the Sixth Circuit in Jasso-Arangure v. Whitaker, the authors employ tools of construction, including the canons of ejusdem generis and noscitur a sociis (two different methods of determining a term’s meaning through other words in the same statute).  By also discerning from the legislative history Congress’ intent for the Refugee Act to provide flexibility, limit executive discretion, and credit UNHCR’s interpretations of the Act’s relevant terms, the authors argue that A-B- overstepped by attempting to “interpret” aspects of the statute to which Congress had already unambiguously spoken. 

In Enforcing/Protection: The Danger of Chevron in Refugee Act Cases, Maureen A. Sweeney, Associate Professor at the University of Maryland Law School, examines the increasingly policy-motivated decisionmaking of the A.G. and BIA under the present administration through the lens of post-Chevron decisions that have created what are now referred to as Chevron “step-zero:” threshold questions as to whether Congress intended to grant the authority to issue rulings with the force to law to a particular type of agency decision and on the particular issue in question.

To illustrate the “step zero” distinction between the types of issues that are or are not appropriate for Chevron deference, Sweeney offers the examples of the development of the I-601A provisional waiver procedure by USCIS under the Obama Administration with decisions of the A.G. and BIA interpreting aspects of the Refugee Act.  She characterizes the former, which she describes as the filling of “a procedural gap left by Congress” in which an agency “acted in a matter in which there were competing visions of the public interest” and chose a solution “favoring the unification of families of U.S. citizens,” as an example of the type of agency determination appropriate for deference.  In contrast, Sweeney posits that the provisions of the Refugee Act, which were not passed at the whim of Congress, as inappropriate for “step zero” deference.  As a rule that results from “the nation’s non-negotiable obligations under the Refugee Convention,” and further involves “decision making about the fundamental right to humanitarian protection,” the author argues that its subject does not constitute the type of matter contemplated by the Court in Chevron as deserving of full judicial deference carrying the weight of law."

Copyright 2020 Jeffrey S. Chase.  All rights reserved.