On January 17, 2024, the US Supreme Court will hear oral arguments in 2 cases where the Chevron Deference Doctrine is a key issue:
The Justices will consider whether to overrule the Court’s 1984 precedent in Chevron v. Natural Resources Defense Council. There, the Court held that when a federal statute is ambiguous, federal courts should defer to the agency’s interpretation of the law if the interpretation is “reasonable”.
While overturning, or limiting, the Chevron Deference Doctrine will have negative consequences in some areas, it would revolutionize the ability of persons to challenge immigration denials by federal agencies (including USCIS, ICE, CBP, EOIR, etc.) based on restrictive interpretations of U.S. immigration laws.
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Challenging Immigration Denials in Federal Court
Let me provide you with an example of an immigration matter which has divided thousands of children from their parents due to Chevron deference.
Immigration laws are designed to keep families together. If a person is sponsored for a green card, the person’s spouse and children are generally permitted to adjust their status or obtain their immigrant visas together with the principal applicant.
However, once a child reaches the age of 21, the law states that he/she has “aged-out” and cannot immigrate together with the rest of the family.
To remedy this situation, in 2002, Congress passed and the President signed into law the Child Status Protection Act (CSPA) in order to prevent families from becoming separated due to long waiting times in many family-based and employment-based preference categories.
CSPA provides a formula which allows a child to subtract the time that the I-130 or I-140 visa petition was pending from his age when his priority date becomes current.
However, many children still “age-out” despite this formula.
Therefore, Congress included the following “automatic conversion” clause to CSPA to help prevent family separation:
‘‘(3) RETENTION OF PRIORITY DATE.—If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition’’.
Scialabba v. Cuellar de Osorio
Consider the case of Rosalina Cuellar de Osorio and her family.
Rosalina’s mother, a citizen of the United States, sponsored her and her son Melvin for green cards in May 1998 and her petition was approved a month later. At this time, Melvin was 13 years of age.
However, by the time that his priority date became current in 2005, Melvin had turned 21 and had “aged-out”.
Once she got a green card, Rosalina sponsored Melvin under the family-based 2B category as the adult, unmarried son of a lawful permanent resident. Under CSPA’s automatic conversion clause, she requested that he keep his place in line for a green card, his 1998 priority date. This would have allowed Melvin to rejoin her in the U.S. within a few months.
However, the USCIS refused to allow Melvin to retain the 1998 priority date. Instead, they moved him to the back of the line where he would have to wait many years to get a green card and be reunited with his family in the U.S. This was clearly contrary to law.
In 2008, on behalf of Mrs. Cuellar de Osorio and several similarly situated persons, we sued the USCIS to force them to allow Melvin and his peers to retain their original priority dates and to be able join their families in the United States.
From CSPA’s passage in 2002 until our lawsuit in 2008, the USCIS had never issued a regulation or even a memo explaining how to interpret the “automatic conversion” clause of CSPA.
However, soon after our lawsuit was filed, the Board of Immigration Appeals (BIA) issued a flawed decision in Matter of Wang, which severely restricted who could benefit from CSPA’s automatic conversion clause.
Unfortunately, both the U.S. District Court and the 9th Circuit Court of Appeals granted Chevron deference to the BIA’s mistaken interpretation of the law and ruled that Melvin and his colleagues were not entitled to retain their original priority dates under CSPA.
In 2012, an 11-judge panel of the 9th Circuit Court of Appeals agreed to rehear the case, and ruled in favor of the long-separated families. Under Chevron, they found that the intent of Congress was clearly expressed in CSPA, and that there was no need to defer to the agency’s mistaken interpretation of the law.
The conservative 5th Circuit Court of Appeals had issued a similar decision in 2011 in Khalid v. Holder. In a unanimous decision, they ruled that “contrary to the BIA’s interpretation in Matter of Wang, the benefits of 8 U.S.C. section 1153(h)(3) unambiguously apply to all petitions described in section 1153(h)(2)…”
While the government did not appeal the 5th Circuit’s decision in Khalid v. Holder, they decided to appeal the 9th Circuit’s decision to the U.S. Supreme Court.
Various groups submitted Friend of the Court Briefs to the Supreme Court. One of these briefs was submitted by 6 Senators, 3 Republicans and 3 Democrats who were all in the Senate when the CSPA was enacted in 2002: Dianne Feinstein (D-CA), Orrin Hatch (R-UT), John McCain (R-AZ), Robert Menendez (D-NJ), Charles Schumer (D-NY) and former Senator Sam Brownback (R-KS).
The Senators’ brief stated that the “Court should not allow the Solicitor General to introduce ambiguity into the CSPA where none exists.”
Despite this, in 2014, the U.S. Supreme Court in a 5-4 decision, found that the language of CSPA’s automatic conversion clause was ambiguous. The majority exercised Chevron deference and deferred to the BIA’s decision in Matter of Wang thereby separating Melvin and his peers from their families for years.
This deference to a flawed agency decision has resulted in the separation of many thousands of sons and daughters from their parents.
As a former INS Attorney (1976-82), I am all too familiar with the government’s tendency to interpret immigration laws in an overly restrictive manner.
We have challenged many of these interpretations in Federal Court and achieved successful results for our clients.
But as the Supreme Court’s decision in Scialabba v. Cuellar de Osorsio demonstrates, when Federal Courts are restrained by doctrines like Chevron deference (and by Consular Nonreviewability), immigrants are deprived of their rights under our justice system.