Reining in Immigration Adjudicators

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Two scholars argue that immigration adjudication should no longer be afforded Chevron deference.

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For decades, immigration officials have interpreted the law with the understanding that courts would rarely question their decisions. Now, two scholars challenge the logic behind having courts afford immigration officials such broad deference when reviewing their decisions.

The court’s deference to immigration officials derives from a U.S. Supreme Court decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council. In Chevron, the Supreme Court established that agency interpretations of ambiguous statutory language should receive substantial deference when subject to judicial review. The Court justified this deference using a theory of delegation—that Congress intended to delegate to executive agencies the responsibility of resolving statutory ambiguity.

Critics have called to eliminate Chevron deference throughout the past decade. Many academics and judges, including Supreme Court Justice Neil Gorsuch, argue that deferring to agencies on statutory interpretation is an “abdication of the judicial duty” to construe the law. Although the doctrine remains intact, some predict that it is in imminent danger, especially in light of Justice Amy Coney Barrett’s confirmation to the Supreme Court.

In a recent paper, law professors Shoba Sivaprasad Wadhia and Christopher J. Walker join the call to eliminate Chevron deference—but only in a narrow sense. They urge the “surgical” removal of Chevron deference for agency interpretations made in immigration adjudications, while preserving it for courts’ review of immigration rulemaking. Under their proposal, courts would more closely scrutinize immigration decisions made by the Board of Immigration Appeals (BIA) and the Attorney General—the two main immigration adjudicators.

To frame their critique, the authors identify the four primary rationales for delegation that justify Chevron deference: the comparative expertise of agencies, the flexible deliberative process agencies employ, political accountability of agencies, and national uniformity of law. The first three of these rationales, however, “collapse” in the immigration adjudication context.

The primary rationale that Wadhia and Walker argue underlies the delegation theory is that federal agencies possess expertise—both technical and legislative—that the courts do not. Agencies often fill statutory gaps that demand “scientific, technical, economic, or other subject-matter expertise,” which fall outside a judge’s traditional skillset.

Immigration adjudication requires no such expertise. Rather, it demands that adjudicators employ rigorous legal interpretation of complex statutes and regulation, which is “precisely the sort of expertise that federal courts have.” Even more, the hiring requirements for the BIA—the primary immigration adjudicators—do not require substantive experience, much less any subject-matter expertise.

As for legislative expertise, agencies frequently possess “special insight” into the goals behind legislation, which weighs in favor of deferring to their interpretation. Although this may be true in rulemaking, it is less so in agency adjudication. Indeed, neither the BIA nor the Attorney General—another key immigration adjudicator—consults with agency legislative experts when interpreting statutes in adjudication.

The second rationale underlying the delegation theory that Wadhia and Walker suggest is that agencies engage in a wide-ranging deliberative process that “incorporates all stakeholders,” but courts can only consider the cases before them. Because of this process, the argument goes, agencies should be entitled to substantial deference when their decisions are reviewed. That unique deliberative process, however, is only apparent in agency rulemaking, a process that proceeds entirely in the public eye and welcomes input from relevant stakeholders.

Immigration adjudication stands in stark contrast. For one, immigration adjudication offers few procedural protections for immigrants. In addition, politics have overtaken the immigration adjudication system. As a former BIA chair explained, “the BIA is not a court anymore. It’s an enforcement mechanism.” These are hardly the features of a deliberative process deserving of the substantial deference afforded by Chevron, Wadhia and Walker conclude.

The third reason Wadhia and Walker pose for delegation is the comparative political accountability of agencies relative to courts. Conventional wisdom assumes that agencies are more politically accountable than a federal court, so deferring to agencies reduces partisanship in judicial decision-making. Although it may not be their most powerful point, Wadhia and Walker argue that such wisdom applies more forcefully to rulemaking than it does to adjudication. Indeed, immigration adjudication often “lacks the hallmarks of public engagement and transparency that is commonplace in rulemaking.”

Finally, Wadhia and Walker propose that a desire to promote national uniformity in federal law partly motivates Chevron deference. Here, agency adjudication may better promote this goal than the judiciary, but this preference for legal uniformity is only one of four factors. When considering the other three, “the case against Chevron deference in immigration adjudication becomes so clear as to justify some course correction to narrow Chevron’s domain.”

In turn, Wadhia and Walker identify three potential institutions that could bring about this reform: the Supreme Court, Congress, and the executive branch itself. The Supreme Court, for its part, could simply decide to exclude immigration adjudication from Chevron deference.

Alternatively, Congress could pass legislation that requires courts to review immigration decisions with less deference, which Congress has done in the context of some consumer financial laws. By requiring a more exacting review of immigration adjudication, “the BIA and Attorney General will face greater incentives to exercise expertise and engage in reasoned decision-making.”

And finally, the executive branch could unilaterally implement this change by affirmatively seeking less deference from courts reviewing immigration decisions. In fact, the U.S. Department of Justice has recently taken similar action in the context of agency guidance. Whether an agency can unilaterally waive Chevron deference is unsettled, but an agency should at least adjudicate as if it will face minimal deference.

Several lawmakers have warned that restricting the scope of Chevron deference will have “titanic real-world implications.” From Wadhia and Walker’s perspective, however, narrowing Chevron is “more consistent with Chevron’s theoretical foundations.” But perhaps even more importantly, requiring courts to scrutinize the decisions of immigration adjudicators could result in fairer outcomes for immigrants to the United States.