Chevron Is Dead! Initial Thoughts on the Immigration Impact of Loper Bright Enterprises
By Brian Green, Mark Stevens, Cyrus D. Mehta, and Stephen Yale-Loehr*
On June 28, 2024, the U.S. Supreme Court overturned Chevron, U.S.A., Inc. v. Natural Resources Defense Council,[1] a 40-year old Supreme Court decision that had held that U.S. courts should give substantial deference to federal agency decisions. The decision in Loper Bright Enterprises v. Raimondo[2] will have major implications for all administrative law areas. This article speculates on the potential impact of Loper Bright in the immigration context.
In Loper Bright, Chief Justice Roberts, writing for the 6-3 majority, held that Chevron conflicts with the federal judiciary’s constitutional role, which is “to say what the law is.”[3] The Chief Justice also found that Chevron conflicts with the Administrative Procedure Act, which instructs federal judges to “decide all relevant questions of law.”[4] Chief Justice Roberts succinctly stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.”[5]
The Loper Bright majority also answered another important question: whether cases decided under Chevron are also overruled. The Court explicitly said no:
[W]e do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific actions are lawful … are still subject to stare decisis despite our change in interpretative methodology.[6]
Chevron’s overruling does not mean deference is dead. Deference will continue. But courts might now apply a lower level of deference called Skidmore deference. In Skidmore v. Swift & Co.,[7] the Supreme Court held that federal agency interpretations are entitled to respect only to the extent that those interpretations have the power to persuade.[8] This is a much lower level of deference than the former Chevron standard of “permissible” or “reasonable.” Under Skidmore, the amount of weight given to an executive agency interpretation depends on the thoroughness of its consideration, the validity of its reasoning, and its consistency with earlier agency pronouncements.[9] The majority in Loper Bright endorsed Skidmore deference.[10]
As noted in a previous article previewing Loper Bright,[11] not all immigration attorneys and their clients will feel the impact of Chevron’s demise equally. There will be winners and losers, and some unintended consequences may occur in limiting previously afforded deference to immigration agency decision making. For example, in removal cases, Chevron deference previously hurt those seeking review of immigration judge or Board of Immigration Appeals (BIA) decisions. Now, in a post-Chevron world, the BIA’s interpretation of “particular social group” or its restrictive interpretation of the automatic conversion of the priority date for aged-out children under § 203(h)(3) of the Immigration and Nationality Act (INA) may not be given the same deference as before. Employers may also be able to find a court willing to give a more favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker. Similarly, the USCIS’s “final merits determination” to evaluate “extraordinary ability” or “outstanding researcher” in employment-based first preference petitions may also be more vulnerable to challenge.
These are just a few examples of how immigration attorneys can seek more favorable interpretations for their clients after Loper Bright. However, former Chevron deference can help when the immigration agency seeks to give employment authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training. Even if Chevron no longer helps, there is a statutory basis for the USCIS to issue work authorization to noncitizens under INA § 274A(h)(3) and to set time and other conditions for nonimmigrants under INA § 214(a)(1).
The effects of the demise of Chevron are not limited to USCIS policies and decisions. Loper Bright now also makes judicial review of decisions and actions by the U.S. Department of Labor, U.S. Department of State, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection more likely.
The U.S. Department of Justice has and will continue to argue that immigration agency decisions should receive substantial deference. The government contends that INA § 103 incorporates an express delegation of interpretive authority. INA § 103(a)(1) states:
The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.
Thus, the government will claim, judicial deference to immigration agency decisions and rules continues to exist, even though Chevron has been overruled.
However, there is a strong argument that INA § 103(a)(1) does not constitute an express delegation of interpretative authority to the agency. All federal agencies are granted some level of deference simply by virtue of being charged with administering a statute. The language after “Provided” in INA § 103(a)(1) is intended simply to allocate U.S. immigration law authority among the U.S. Department of Justice, the U.S. Department of State, and the U.S. Department of Homeland Security.[12]
At a broader level, Loper Bright transfers power from federal agencies to federal courts. It will likely lead to less national uniformity in U.S. immigration law, since each federal court of appeals may now give its own reading of the law.
How this change in U.S. administrative law affects your clients and practice will vary. But the time to challenge federal agency policies and adverse decisions in court has arrived.
* An earlier version of this originally appeared through the American Immigration Lawyers Association at https://www.aila.org/library/think-immigration-chevron-is-dead-thoughts-on-the-immigration-impact-of-loper-bright-enterprises.
Brian S. Green (BrianGreen@greenUSimmigration.com) is a solo practitioner and the Chair of AILA’s Benefits Litigation Committee. He operates the Law Office of Brian Green in the Denver, Colorado suburbs and handles immigration-related U.S. District Court cases in thirty-two districts around the U.S. Brian was awarded AILA’s 2023 Sam Williamson Mentor Award for his mentorship in immigration litigation.
Mark Stevens (https://www.clarkhill.com/people/mark-stevens/) is a Senior Attorney in the immigration practice at Clark Hill PLC in Washington, DC. He litigates immigration matters against federal government agencies in a range of courts across the United States. He is the Chair of the Litigation Committee for the Washington, DC chapter of AILA and a member of AILA’s Benefits Litigation Committee.
Cyrus D. Mehta (https://www.cyrusmehta.com) is the Managing Partner of Cyrus D Mehta & Partners PLLC where he represents corporations and individuals from around the world in business and employment immigration, family immigration, consular matters, naturalization, federal court litigation, and asylum. He is also an adjunct professor of immigration law at Brooklyn Law School and received AILA’s Edith Lowenstein award for excellence in the practice of immigration law in 2018.
Stephen Yale-Loehr (SWY1@cornell.edu) is co-author of Immigration Law and Procedure, the leading immigration law treatise, published by LexisNexis. He also is Professor of Immigration Law Practice at Cornell Law School, and is of counsel at Miller Mayer (http://www.millermayer.com) in Ithaca, NY. He received AILA’s Elmer Fried award for excellence in teaching in 2001, AILA’s Edith Lowenstein award for excellence in the practice of immigration law in 2004, and AILA’s Robert Juceam Founders award in 2024.
[1] 467 U.S. 837 (1984).
[2] Loper Bright Enterprises v. Raimondo, __ U.S. __, 2024 U.S. LEXIS 2882 (U.S. June 28, 2024), available at https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf.
[3] Id. at *25 (citing Marbury v. Madison, 1 Cranch 137, 177 (1803)).
[4] 5 U.S.C. § 706.
[5] Loper Bright Enterprises, 2024 U.S. LEXIS 2882, at *61-62.
[6] Id. at *60-61.
[7] 323 U.S. 134 (1944).
[8] Id. at 140.
[9] Id.
[10] Loper Bright Enterprises, 2024 U.S. LEXIS 2882, at *12, 29, 36.
[11] Brian Green & Stephen Yale-Loehr, Is Chevron Dead? Thoughts after Oral Arguments in Relentless, Inc. and Loper Bright Enterprises (Jan. 25, 2024), https://www.aila.org/blog/is-chevron-dead-thoughts-after-oral-arguments-in-relentless-inc-and-loper-bright-enterprises.
[12] For more on this issue, see Nancy Morawetz, Immigration Law After Relentless, 99 NYU L. Rev. Online (2024), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4785466.