Immigration Blog

By Paul Hunker

The Supreme Court in Loper Bright overturned Chevron and the deference it accorded agency interpretation of the law. How will this impact the rights of noncitizens?    

Chevron ruled that if a federal law does not directly speak to the precise question at issue, courts should defer to the agency’s interpretation of the law if based on a permissible construction of the statute.  This gave the Department of Homeland Security a big advantage in litigation. (Chevron was a nice arrow in my quiver when I represented DHS; grateful to SCOTUS for overruling it now that I am private practice!).   

Loper Bright may have some negative consequences for noncitizens.  For example, as David Bier notes with the Cato Institute, the ruling could provide legal support for those challenging the legality of Optional Practical Training (although the power of DHS to authorize work is clearly set forth in section 274A(h)(3) of the Immigration and Nationality Act). But to the extent states like Texas or other parties want to challenge immigrant friendly regulations, they need legal standing to do so. And the Supreme Court seems to be imposing more stringent standing requirements these days.   

But let’s look on the “bright” side.  Loper Bright will not only be helpful going forward but could be helpful in challenging prior federal court decisions that negatively impacted noncitizens. For example, in Matter of Briones, the BIA held that a noncitizen inadmissible under INA § 212(a)(9)(C) is ineligible to adjust. 24 I&N Dec. 355 (BIA 2007).  Sadly, INA § 212(a)(9)(C) imposes an effectively permanent bar to adjustment of status for otherwise deserving noncitizens based on Briones.  Many circuits upheld the BIA’s interpretation of Briones but based on principles of Chevron deference.   

But some courts disagreed on the legal merits. The Tenth Circuit prior to Briones found that a noncitizen could adjust her status, notwithstanding INA § 212(a)(9)(C).  See Padilla-Caldera v Gonzalez, 453 F. 3d 1237 (10th Cir. 2005).  But then based on the Chevron derivative Brand-X decision (also now overruled post Loper Bright), the Tenth Circuit held they had to defer to the BIA’s reasonable interpretation. See Padilla-Caldera v Holder, 637 F. 3d 1140 (10th Cir. 2011).  

Admittedly, holdings like the 2011 Padilla decision will still be subject to statutory stare decisis.  But statutory stare decisis does not mean that an interpretation of a statute is sacrosanct.  And as then Notre Dame Professor of Law Amy Coney Barett has argued, strong statutory stare decisis may be less “strong” where the decision interpreting a statute came from a circuit court, not the Supreme Court. 

Paul Hunker, is an immigration attorney based out of Dallas, Texas and partner at DMCA, LLP. Prior to joining DMCA he spent his entire legal career representing the former U.S. Immigration and Naturalization Service (INS), and U.S. Immigration and Customs Enforcement (ICE). He served as the Chief Counsel for U.S. Immigration and Customs Enforcement, Department of Homeland Security, Dallas Office of the Principal Legal Advisor (OPLA).