Does Chevron Have An Immigration Exception?, by Michael Kagan
This morning, the Supreme Court announced its decision in Luna Torres v. Lynch, and it’s bad news if you are a non-citizen arsonist. The Court affirmed the Second Circuit, which had affirmed the Board of Immigration Appeals (BIA) decision that Jorge Luna Torres’ New York conviction for arson is an aggravated felony, making him deportable.
The Court’s substantive holding is merely a clarification of the now well-established categorical approach for deciding whether state criminal convictions count as grounds of removal in immigration law. With this decision, the Court clarifies that jurisdictional elements of federal crime definitions – in particular, the requirement that the crime impact interstate commerce – are not part of the generic definition of the crime. This matters in certain cases, but it does not change the doctrine in any significant way.
But Luna Torres may also be significant for what it does not say. Nowhere in Justice Kagan’s majority opinion (5-3), nor in Justice Sotomayor’s dissent, do the justices use the word “deference.” Nor they make any reference to Chevron. This is remarkable, because this case is a petition for review of an agency (BIA) decision interpreting a statute, which the Supreme Court acknowledged was somewhat ambiguous (“Congress could have expressed itself more clearly.”). That is usually the cue for Chevron deference. Indeed, Chevron deference was central to the decision by the Court of Appeals affirming the BIA. But deference is nowhere to be found in the Supreme Court’s decision. (Technically, the word “defer” does appear in the Court’s decision, but it’s not used in reference to the BIA.)
Both in the lower court at the Supreme Court, the question of whether Chevron should apply was a major point of contention. Mr. Luna Torres argued that Chevron should not apply because the aggravated felony definition should be interpreted as a criminal statute. By contrast, the Attorney General made a straight-forward administrative law argument:
The Board is entitled to deference to its interpretation of the INA, because Congress has charged the Attorney General with administration and enforcement of the statute in removal proceedings, and the Attorney General has delegated her authority to the Board. … [The Petitioner’s argument] if accepted, would severely undermine the administration of the immigration laws.
The Supreme Court avoided dealing explicitly with the Chevron question. In fact, the Court never says explicitly what the standard of review is. But it is hard to see what the Court actually does as anything but de novo review. In this manner, the Court seems to silently reject the Attorney General’s argument, even though the government won the case.
When the Court wants to apply Chevron deference in immigration cases, it knows how to do it. Consider, for example, Scialabba v. Cuellar de Osorio, a decision also written by Justice Kagan. In that case, the Court said, “Principles of Chevron deference apply when the BIA interprets the immigration laws,” and it explicitly deferred to the BIA’s interpretation of an ambiguous provision of the INA. But that case was not about criminal grounds of removal. It concerned an ambiguous provision about eligibility for family-based immigration.
Mr. Luna Torres pointed out (Reply Brief, p. 18) that the Court has often interpreted criminal grounds of removal without reference to Chevron. See, e.g., Moncrieffe v. Holder; Carachuri-Rosendo v. Holder; Nijhawan v. Holder; Gonzales v. Duenas-Alvarez. Now with the decision in Luna Torres – where the deference question was a major point of argument – we have a mounting body of evidence that the Court does not in fact defer to the BIA on interpretation of criminal grounds of removal.
This is an old story to some extent – the Supreme Court’s fervent adoption of the categorical approach was a rejection of contrary approaches that had been used by the Attorney General and the BIA. But it has yet seep down consistently to the BIA itself, which often decides to disregard circuit court precedents by invoking Brand X deference. But if there is no Chevron deference, then there is no Brand X deference either. The BIA may be able be able to invoke Brand X with regard to some aspects of immigration law (see, e.g., Matter of Fajardo Espinoza), but it may be wrong to try to do so on criminal grounds of removal (see, e.g., Matter of Alfonso Cortes Medina). In these cases, the BIA will have to learn to defer to the federal courts, not vice versa.
For reasons I have explained elsewhere in brief form, this is as it should be. Administrative law canons are poorly suited to address the core liberty concerns involved in immigration enforcement, which has more in common with criminal law. The categorical approach is a doctrine shared by immigration law and federal sentencing law, so the criminal law paradigm fits especially well. But it may also be that the BIA has a less compelling claim to deference than other federal agencies. It is not much more politically accountable than courts, since Board members are shielded from political interference much like judges. Nor are Board members clearly more expert than federal judges on matters of statutory interpretation. It is thus far from clear that the BIA brings anything to the table beyond what a federal court could provide, and so it should come as no surprise that the Supreme Court in particular seems to see no reason to defer to the BIA.
It thus appears increasingly that there is an immigration exception to Chevron, defined so far by what the Court has done rather than what it has said. Since the Court has yet to definitively announce an explicit exception from Chevron, the Department of Justice will probably continue to argue that deference should apply. But it looks as if DOJ is losing the argument. The best description of what the Court is actually doing in criminal grounds of removal cases is that it is reviewing questions of law de novo, deferring to no one.