Day 285: Will Courts Defer to the BIA in a post-Chevron World?

Photo by Clovis Wood Photography on Unsplash

My colleague, Anne Lofaso, presented her current work in progress at a faculty lunch today. Lofaso and her colleague are exploring the implications for the National Labor Relations Board if the Supreme Court narrows or overrules Chevron deference this term.

To Lofaso and colleagues, the fact that the NLRB makes law through case-by-case adjudication rather than by prospective regulation may limit the applicability of Chevron anyway. Board decisions, they think, may have been entitled to deference before Chevron, and for different reasons.

We got into a discussion about whether the same arguments would apply to the Board of Immigration Appeals. The BIA, like the NLRB, makes law through adjudication of particular cases, not by rulemaking. Does court deference to the BIA arise from separate, pre-Chevron policy concerns too?

skirting Chevron

The problem, for those who represent respondents before the BIA is that we never really liked the idea of courts giving Chevron deference to BIA decisions anyway. For most of its modern history, the BIA has appeared to respondents’ counsel (like me) to be mostly a rubber-stamp deportation machine. It’s rare to get a serious reconsideration of an immigration judge’s decision before the BIA. Mostly we see it as a hoop we have to jump through before we get to the U.S. Court of Appeals, where we hope to get a fair and thorough hearing.

The preference of the respondents’ bar wouldn’t really matter if the law said the courts had to defer to the BIA and the courts followed the law. My impression, however, is that many courts of appeals — including the Third and Fourth Circuits, where most of our cases go — don’t actually give that much deference to BIA decisions, despite Chevron. When we prepare appellate briefs we certainly nod to Chevron, preparing arguments as to why they don’t have to defer. But we don’t spend much time working around any giant body of case law where the circuit courts simply deferred.

Respondents’ counsel lawyers tend to fall into that narrow category of politically progressive lawyers who have no love for judicial deference to agency decisionmaking. That flows directly from the fact tha the immigration courts and the BIA sit within the Department of Justice, a law enforcement agency. (I got upset enough about that arrangement to write a book about it, so I won’t rehearse those concerns here.)

Chevron and the history of deference to immigration agencies

Lofaso and colleagues’ research provoked interesting questions about Chevron and its import for immigration cases. Do the courts of appeals routinely defer to the BIA? If not, why not? Do they defer more in certain categories of cases (like designated precedential decisions)? Did they defer even less before Chevron was decided in 1984? Do the answers vary by circuit?

Questions like these will have major impact on how the immigration legal community receives the import of the Supreme Court’s expected rulings in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.