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Deference in Immigration Matters Skidmore, Chevron, and Beyond

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Deference in Immigration Matters Skidmore, Chevron, and Beyond

  1. 1. Deference in Immigration Matters: Skidmore, Chevron and Beyond By Joseph P. Whalen (August 29, 2012)On August 27, 2012, the 11th Circuit Court of Appeals issued a lengthy publishedopinion Sammir A. Poveda v. U.S. Attorney General, No. 11-14512, [you’ll haveto check elsewhere later for the proper citation], which got me thinking about atopic of interest to me and probably of interest to many others. A single sentenceand cited case provided the impetus for this essay. “[J]udicial deference to the Executive Branch is especially appropriate in the immigration context[.]” INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S. Ct. 1439, 1445 (1999). At p. 5 (Page number from online posted decision; you should expect the page number to change when it is edited for formal publication later.)I felt reinforced in my decision to opine on this topic when I saw an article inImmigration Daily (which appeared in my inbox just as I began writing this essayon August 27th) entitled: “They Still Have Their DREAM: Law Suit AgainstDREAMERs Will Go Nowhere” by Cyrus D. Mehta and Gary Endelman whichdiscusses, in part, the court challenge by a few ICE Agents to DHS Leadership’sdecisions and policy choices regarding prosecutorial discretion and deferred action.Here is an excerpt: “In the ICE agents’ case against DACA, the same arguments can be forcefully made. In the event that the court finds jurisdiction, a similar argument can be made that the DHS be given deference in interpreting INA § 103(a)(1), which would allow the DHS Secretary to set forth policies regarding the exercise of prosecutorial discretion as in the Morton Memo and under DACA. Surely, the “body of experience” and the “informed judgment” that DHS brings to the Dream Act provide its interpretations with “the power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). As Justice Elena Kagan famously noted when she served as the Dean of the Harvard Law School, the increasingly vigorous resort to federal regulation as a tool for policy transformation by all Presidents since Ronald Reagan has made “the regulatory activities of the executive branch agencies more and more an extension of the President’s own policy and political agenda.” Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2246 (2001).”In INS v. Aguirre-Aguirre, 526 U.S. 415 (1999), the U.S. Supreme Court grantedcertiorari to consider the analysis employed by the Ninth Circuit Court of Appealsin setting aside a determination of the Board of Immigration Appeals (BIA). TheSupreme Court reversed the Ninth Circuit. Page 1 of 5
  2. 2. Here are some excerpts: “The issue in the case is not whether the persecution is likely to occur, but whether, even assuming it is, respondent is ineligible for withholding because he "committed a serious nonpolitical crime" before his entry into the United States. 8 U. S. C. § 1253(h)(2)(C). * * * * * On appeal, the Court of Appeals for the Ninth Circuit concluded the BIA had applied an incorrect interpretation of the serious nonpolitical crime provision, and it remanded for further proceedings. In the Court of Appeals view, as we understand it, the BIA erred by misconstruing the controlling statute and by employing an analytical framework insufficient to take account of the Court of Appeals own precedent on this subject. According to the court, the BIA erred in failing to consider certain factors, including "the political necessity and success of Aguirres methods"; whether his acts were grossly out of proportion to their objective or were atrocious; and the persecution respondent might suffer upon return to Guatemala. 121 F. 3d 521, 524 (1997).” At 418. * * * * * “.... See INS v. Stevic, 467 U. S. 407, 414-416, 421— 422 (1984). As a general rule, withholding is mandatory if an alien "establish[es] that it is more likely than not that [he] would be subject to persecution on one of the specified grounds," id., at 429-430, but the statute has some specific exceptions. As is relevant here, withholding does not apply, and deportation to the place of risk is authorized, "if the Attorney General determines that" "there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." 8 U. S. C. § 1253(h)(2)(C). Under the immigration laws, withholding is distinct from asylum, although the two forms of relief serve similar purposes. Whereas withholding only bars deporting an alien to a particular country or countries, a grant of asylum permits an alien to remain in the United States and to apply for permanent residency after one year. See INS v.Cardoza- Fonseca, 480 U. S. 421, 428-429, n. 6 (1987). In addition, whereas withholding is mandatory unless the Attorney General determines one of the exceptions applies, the decision whether asylum should be granted to an eligible alien is committed to the Attorney Generals discretion. Ibid. As a consequence, under the law then in force, respondent was able to seek asylum irrespective of his eligibility for withholding.” At 419-420. * * * * * “The Court of Appeals did conclude, however, that the BIA must supplement this weighing test by examining additional factors. In the course of its analysis, the Court of Appeals failed to accord the required level of deference to the interpretation of the serious nonpolitical crime exception adopted by the Attorney General and BIA. Because the Court of Appeals confronted questions implicating "an agencys construction of the statute which it administers," the court should have applied the principles of deference described in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. Page 2 of 5
  3. 3. S. 837, 842 (1984). Thus, the court should have asked whether "the statute is silent or ambiguous with respect to the specific issue" before it; if so, "the question for the court [was] whether the agencys answer is based on a permissible construction of the statute." Id., at 843. See also INS v. Cardoza-Fonseca, 480 U. S., at 448-449. It is clear that principles of Chevron deference are applicable to this statutory scheme. The INA provides that "[t]he Attorney General shall be charged with the administration and enforcement" of the statute and that the "determination and ruling by the Attorney General with respect to all questions of law shall be controlling." 8 U. S. C. § 1103(a)(1) (1994 ed., Supp. III). Section 1253(h), moreover, in express terms confers decisionmaking authority on the Attorney General, making an aliens entitlement to withholding turn on the Attorney Generals "determin[ation]" whether the statutory conditions for withholding have been 425*425 met. 8 U. S. C. §§ 1253(h)(1), (2). In addition, we have recognized that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials "exercise especially sensitive political functions that implicate questions of foreign relations." INS v.Abudu, 485 U. S. 94, 110 (1988). A decision by the Attorney General to deem certain violent offenses committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbors. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions.” At 424-425.As indicated above, the Supreme Court itself was referring to its earlier reasoningfrom its landmark 1984 decision as “Chevron deference” at least by 1999.Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837(1984) dealt with Environmental Protection Agency (EPA) regulations concerningair pollution standards and the issuance of permits to major polluters. The DCCircuit “set aside” certain EPA regulations and the Supreme Court reversed thatdecision. “The question presented by these cases is whether EPAs decision to allow States to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single "bubble" is based on a reasonable construction of the statutory term "stationary source."” At 840. * * * * * “The basic legal error of the Court of Appeals was to adopt a static judicial definition of the term "stationary source" when it had decided that Congress itself had not commanded that definition. Respondents do not defend the legal reasoning of the Court of Appeals.[7] Nevertheless, since this Court reviews judgments, not opinions,[8] we must Page 3 of 5
  4. 4. determine whether the Court of Appeals legal error resulted in an erroneous judgment on the validity of the regulations.” At 842. [Underlining added for emphasis.]Footnotes from original: [7] Respondents argued below that EPAs plantwide definition of "stationary source" is contrary to the terms, legislative history, and purposes of the amended Clear Air Act. The court below rejected respondents arguments based on the language and legislative history of the Act. It did agree with respondents contention that the regulations were inconsistent with the purposes of the Act, but did not adopt the construction of the statute advanced by respondents here. Respondents rely on the arguments rejected by the Court of Appeals in support of the judgment, and may rely on any ground that finds support in the record. See Ryerson v. United States, 312 U. S. 405, 408 (1941); LeTulle v.Scofield, 308 U. S. 415, 421 (1940); Langnes v. Green, 282 U. S. 531, 533-539 (1931). [8] E. g., Black v. Cutter Laboratories, 351 U. S. 292, 297 (1956); J. E. Riley Investment Co. v.Commissioner, 311 U. S. 55, 59 (1940); Williams v. Norris, 12 Wheat. 117, 120 (1827); McClung v.Silliman, 6 Wheat. 598, 603 (1821).Skidmore v. Swift & Co., 323 U.S. 134 (1944), as mentioned in the ImmigrationDaily article, stands for the proposition that the administrative agency entrusted toadminister and enforce a particular statute or Act will have enough specializedexperience and specific knowledge to constitute informed judgments and as suchits opinions and administrative rulings should have a substantial power topersuade. “There is no statutory provision as to what, if any, deference courts should pay to the Administrators conclusions. And, while we have given them notice, we have had no occasion to try to prescribe their influence. The rulings of this Administrator are not reached as a result of hearing adversary proceedings in which he finds facts from evidence and reaches conclusions of law from findings of fact. They are not, of course, conclusive, even in the cases with which they directly deal, much less in those to which they apply only by analogy. They do not constitute an interpretation of the Act or a standard for judging factual situations which binds a district courts processes, as an authoritative pronouncement of a higher court might do. But the Administrators policies are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case. They do determine the policy which will guide applications for enforcement by injunction on behalf of the Government. Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons. The fact that the Administrators policies and standards are not reached by trial in adversary form does not mean that they are not entitled to respect. This Court has long given considerable and in some cases decisive weight to Treasury Decisions and to Page 4 of 5
  5. 5. interpretative regulations of the Treasury and of other bodies that were not of adversary origin. We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” At 140.In 1944, as the Supreme Court noted above, there was “no statutory provision asto what, if any, deference courts should pay to the Administrators conclusions”.At the present time, in 2012, and for approximately the past decade, there has beenjust such a statutory provision according deference specifically within the contextof interpreting and applying the Immigration and Nationality Act (INA or Act) [8USC, Chapter 12]. It would appear that Congress was aware of the long line ofcases (many more than these few and especially in the INA context) in which theSupreme Court saw the value in recognizing the expertise of the Executive Branchagency assigned to enforce a particular law to make the best use of its experience.Thereby, Congress wanted to ensure that the Courts would stick to the majorstatutory and Constitutional issues alone and not impose impractical interpretationsthat would force impractical procedures on an agency or its various regulatedpublics, i.e., customers, applicants, petitioners, licensees, detainees, etc....6 USC § 522 Statutory construction Nothing in this chapter, any amendment made by this chapter, or in section 1103 of title 8, shall be construed to limit judicial deference to regulations, adjudications, interpretations, orders, decisions, judgments, or any other actions of the Secretary of Homeland Security or the Attorney General. (Pub. L. 107–296, title XI, §1103, Nov. 25, 2002, 116 Stat. 2274.) REFERENCES IN TEXT This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 107– 296, Nov. 25, 2002, 116 Stat. 2135, known as the Homeland Security Act of 2002, which is classified principally to this chapter. For complete classification of this Act to the Code, see Tables. Page 5 of 5

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