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How Chevron’s Fate in SCOTUS Could Impact Immigration Cases

How Chevron's Fate in SCOTUS Could Impact Immigration Cases

Two cases now before the U.S. Supreme Court (SCOTUS) have the potential to significantly alter both past and future immigration cases, depending on how the court rules. The two cases call into question the 1984 Chevron U.S.A., Inc. v. Natural Resources Defense Council. Should the court decide to overturn Chevron, or limit its implications, scores of past cases might have to be reviewed.

SCOTUS is expected to rule on the case by the end of this session. As things currently stand, it appears as though the court may be ready to limit Chevron’s scope or overturn it all together. How will that affect future immigration cases? It could force courts to take a more active role in determining outcomes rather than deferring to federal agencies.

Basics of Chevron Deference

Without getting mired in the details, the Chevron case back in 1984 led to what is now known as Chevron deference. Chevron deference allows courts to defer to administrative agencies and their interpretations of the statutes they are tasked with administering. When there are ambiguities in said statutes, government agencies are generally given pretty wide latitude to interpret applications.

Immigration cases, whether they be related to business immigration or more general in nature, are decided largely by the USCIS and BIA, by way of the U.S. Department of Justice and the U.S. Department of State.

In the two cases now before the court, attorneys for both plaintiffs argue that administrative agencies only have the authority to interpret ambiguous statutes if the statutes themselves grant such authority. In the absence of such authority, it is up to the courts to determine what laws actually mean. It is the court’s purview to determine congressional intent as a means of providing good checks and balances our constitution calls for.

Lawyers for the defendants take the opposite few. They believe Congress always intended to give administrative agencies great latitude in interpreting statutes, especially since statutes cannot account for every single detail or possibility that might come up. That brings us back to the main question of how an overturned or limited Chevron might impact immigration.

Four Considerations

There are countless ways an overturned or limited Chevron could affect immigration cases. At the top of the list would be a forced review of past cases decided unfavorably by BIA. We can imagine a whole host of cases for which attorneys would seek review. That alone could open a Pandora’s box that immigration attorneys shudder to think about. But above and beyond past reviews, here are four considerations for future cases:

  1. Less Leeway – Any restrictions to Chevron would mean less leeway for administrative agencies. For example, this could make it more difficult for an employer to obtain a more favorable interpretation that would grant a positive H-1B decision.
  1. Less Consistency – One could make the argument that Chevron’s current application creates more consistency in immigration decisions. Restricting Chevron would lead to less consistency. That could make the H-1B process even more difficult.
  1. Court InvolvementChevron restrictions would ultimately lead to more court involvement in immigration cases. With less room for interpretation, administrative agencies would have to rely more on the courts for adjudication.
  1. Congressional Involvement – Restricting Chevron will almost certainly lead to Congressional action as lawmakers attempt to tighten up ambiguous statutes. That could go either way for immigration.

As immigration attorneys, we will keep an eye on the two pending cases in anticipation of an early summer ruling. In whichever way SCOTUS rules, Chevron will be impacted. In turn, there will be an impact on immigration cases moving forward.

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