Section Review

In a June 28, 2024, decision in Loper Bright Enterprises v. Raimondo, the Supreme Court overturned a 40-year-old precedent established in Chevron v. Natural Resources Defense Council. In Chevron, the court held that when a federal statute is ambiguous, federal courts should defer to an administrative agency’s interpretation of that law as long as the interpretation is “reasonable.” The decision to overturn will potentially have consequences for all areas of administrative law, including the field of immigration law.

Lober Bright Enterprises v. Raimondo concerned a National Marine Fisheries Service regulation that requires fishing vessels to pay the salaries of the federal observers they are required to carry. The regulation invoked Congress’ Magnuson-Stevens Act, which gave the National Marine Fisheries Service authorization to require these vessels to carry the federal observers. Petitioners, who represented owners of the fishing vessels affected by this interpretation of the Magnussen-Stevens Act, argued for a full overturning of Chevron deference, stating that it violated Article III of the U.S. Constitution, and Section 706 of the Administrative Procedure Act, which instructs federal judges to determine all relevant questions of law. In a 6-3 decision, the Supreme Court agreed. 

The Supreme Court’s decision to overrule Chevron could significantly impact the immigration field, leading to an increase in litigation challenging agency decisions from U.S. Citizenship and Immigration Services (USCIS), the Department of Labor, Immigration and Customs Enforcement, and U.S. Customs and Border Protection. Some believe that agency decisions should receive deference rather than strict de novo review, as judges are not experts in the immigration law field and are not involved in the political administration making the regulations. Another concern is that the end of Chevron could lead to less uniformity in immigration law, as each federal court of appeals might interpret congressional mandates differently. The inconsistent interpretations mean greater opportunity for challenges, as immigrants and employers may seek a court more favorable to their cause. Lack of predictability and more litigation also have downstream cost and resource implications, which could ultimately mean longer case processing times.

There has been concern by those who argue against Chevron deference that agencies under different administrations may interpret the laws differently. The inconsistency of the agencies’ decisions would leave future rulemaking and rule interpretation unpredictable. However, courts are not exempt from partisan rulings, as we have recently seen.

As a practical example, consider the recent updates to filing fees by USCIS, which cited authority from the Homeland Security Act of 2002, as well as several sections of the Immigration and Nationality Act. If an employer challenges the newly required payment of an Asylum Program Fee for filing of an I-129 H-1B petition, claiming that USCIS misinterpreted the congressional mandate, courts would have formerly applied the Chevron doctrine and thus deferred to USCIS’ interpretation. Now, each court will have de novo review of this question, potentially coming to varied conclusions. Many practitioners believe that non-pure and abstract legal questions, like this one, call for agency deference because it is difficult for the judges to measure the financial conditions of any agency.

When it comes to fighting for the rights of immigrants facing deportation proceedings, many practitioners believe that the Supreme Court’s decision to overturn Chevron leaves the door open for government agencies to challenge previously binding precedent from the Board of Immigration Appeals (BIA). For example, many of the statutorily protected grounds for asylum are not specifically defined by 8 U.S.C. § 1158 of the U.S. Code. The BIA, the highest administrative body for analyzing and applying immigration laws, has provided its interpretation on some of the ambiguous protected grounds. Under asylum law, individuals seeking protection must show that they fled their home country because they were persecuted based on one or more protected grounds: race, religion, nationality, political opinion, and membership in a particular social group. Although the BIA has provided clarity under some of the more ambiguous protected grounds, such as political opinion and membership in a particular social group, in a post-Chevron world, the circuit courts might not give the BIA’s interpretations the same level of deference as before.

Looking ahead, Congress still has the power to pass laws with enough specificity to prevent them from being left to the interpretation of courts, so we could see greater pressure to revise existing statutes. However, given the decades that have passed without any significant immigration legislation, it seems likely that existing ambiguities in the statutes will end up before federal judges in the coming years. The extent of the impact of overturning Chevron remains to be seen.