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Fighting Chance

The Potential Upside of the Supreme Court’s Chevron Decision

The courts no longer have to bow to executive whims, which may give noncitizens a better chance.

A security guard stands in front of the Supreme Court building
Amanda Andrade-Rhoades for The Washington Post/Getty Images

Last week, the Supreme Court tossed out so-called Chevron deference, a long-standing precedent that held that when federal statutes are ambiguous, the courts should defer to executive agencies’ interpretations of how to apply them.

The decision, in Loper Bright Enterprises v. Raimondo, landed like a ton of bricks on mostly left-leaning proponents of tight regulation on everything from environmental emissions to medical products to workplace safety, who warned that barrages of deep-pocketed industry litigation could hamstring the administrative state. But in the executive-heavy area of immigration, one of the areas of federal policy most reliant on agency interpretation, the doctrine’s death might actually have a silver lining.

“In many ways, the end of Chevron deference has the potential, at least, to benefit noncitizens in ways that our traditional allies in environmental protection and others that promote federal regulation are not celebrating,” said Emma Winger, deputy legal director at the American Immigration Council. Everything from how the U.S. Citizenship and Immigration Services define the eligibility criteria for work visas like H-1B to general concepts like what it means to be a public charge are essentially interpretations of statute, so Chevron deference’s demise could lead to less draconian interpretations.

Winger brought up the example of conviction for a “particularly serious crime,” which bars access to both asylum and withholding of removal, another form of protection from deportation. The law doesn’t specify what type of crime qualifies, which traditionally has meant it is whatever the executive decides it is. It’s not hard to imagine how these ambiguities can be weaponized by a hostile administration, and indeed this is what happened under former President Donald Trump.

His administration infamously reformulated the immigration system without congressional action, via a barrage of executive policy changes and reinterpretations of the immigration statutes—enacting, by one count, nearly 500 immigration administrative changes, often engineered by anti-immigration fanatic Stephen Miller. Some of these shifts, like an expansion of expedited removal, were clearly authorized by statute. Many more were based on reading hazy laws as harshly as possible. Even in cases where these changes were struck down, it was largely on the basis that the administration was sloppy and capricious, not that it didn’t have the authority to reinterpret these laws.

Maybe the area of rawest executive discretion is the immigration courts system. While most people probably think of these courts as falling in the same bucket as the rest of the federal judiciary, these are not actually Article 3 courts. They are wholly contained in the Executive Office of Immigration Review, which is part of the Department of Justice. That means each decision, and particularly precedential decisions issued by the appellate Board of Immigration Appeals or the attorney general—who acts as a kind of one-person immigration Supreme Court—is an exercise in executive interpretation. (Administrative judges were the focus of another recent high court decision, SEC v. Jarkesy, which upended the judges’ ability to issue decisions without jury trials; for a number of complex precedential reasons, this seems unlikely to impact immigration judges’ ability to reach civil immigration decisions, but other immigration-related civil findings could be affected.)

Such decisions haven’t generally been considered reviewable by the federal courts barring some clear claim of statutory or constitutional violation, but Loper Bright ended this deference. This doesn’t necessarily mean that there will be numerically many more challenges to individual removal orders and broader immigration policies, but it does mean the federal government won’t get automatic court wins based on Chevron alone, and federal judges writ large will have more power to question how their administrative counterparts are reaching decisions.

As just one example, in the 2014 Supreme Court opinion in Scialabba v. de Osorio, the justices backed the Board of Immigration Appeals’ interpretation limiting the ability of lawful permanent residents’ family members to receive derivative residence if they aged out of eligibility while waiting for their petitions to be processed. Justice Elena Kagan wrote for the majority that “this is the kind of case Chevron was built for.” That’s now no longer the controlling approach, though it should be noted that the Loper Bright decision all but said that it does not overturn existing precedents based on Chevron, just the deference itself. Still, Winger said, “there is a question of the extent to which the circuit courts might revisit some of that precedent in light of Loper Bright.”

The anti-immigration sphere is already fretting about this, with former Trump Homeland Security official and Center for Immigration Studies senior legal fellow George Fishman writing that the Board of Immigration Appeals, or BIA, “may turn out to be the biggest loser, as in the context of removal proceedings the BIA has been rather successful in using Chevron to bypass detrimental judicial interpretations of statutes.” He mused that this “may be especially detrimental for aggressive enforcement efforts” under a second Trump administration.

Of course, there’s a flip side to this: In the face of congressional paralysis, practically the only official protections for undocumented immigrants and humanitarian migrants issued over the past several decades are executive in nature. The Deferred Action for Childhood Arrivals program is already on the chopping block, currently under review by the hard-right Fifth Circuit Court of Appeals after it had previously affirmed a lower court’s ruling that the whole program was unlawful. The program relies on the discretionary application of statutory powers, as do grants of temporary protected status and parole.

Most vulnerable are probably Biden’s wide-ranging parole programs, which have become a staple of his administration’s one-two approach of border restrictions paired with limited humanitarian programs. Two months before the administration rolled out its transit ban 2.0—a rehash of a Trump-era asylum restriction timed to replace the Title 42 expulsion program—it announced a policy to allow 30,000 migrants a month from Cuba, Haiti, Nicaragua, and Venezuela to enter the country via parole. Then, two weeks after unveiling another executive action to further cut off access to asylum at the border, Biden issued an order to grant parole in place to U.S. citizens’ undocumented spouses. The administration has also used parole extensively for Afghan and Ukrainian humanitarian migrants.

All these parole grants are balanced on a single, very nonspecific authority in the Immigration and Nationality Act, which permits the attorney general “in his discretion [to] parole [noncitizens] into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit,” with a specific time limit for this pseudo-status. You’ll notice a lot of caveats there that could be argued pretty severely constrain the authority, and indeed the former program was already challenged in court by a coalition of states led by (who else) Texas.

A Trump-appointed judge threw out that lawsuit in March on standing, pointing out the obvious reality that the states couldn’t really establish how they could have been harmed by the program. If and when such a case makes it to a real-merits consideration, though, the government can’t just point to Chevron and insist on deference for its own interpretation of what the statute allows.

Indeed, whatever benefits accrue to the pro-immigration side from granting the courts more interpretative authority must be balanced against the fact of a federal judiciary that the hard right has largely co-opted, with the reactionary Fifth Circuit as a prime example. In ruling on the parole programs, the circuit may not have considered Chevron at all, but simply ruled that the statute was, in fact, unambiguous, based on its own interpretation. After all, if the current Supreme Court has one overarching principle, it’s that the law is what the right-wing judges say it is.

Nonetheless, this is still an arena where pro-immigration advocates and individual petitioners can now duke it out with the executive decision-makers on, at least theoretically, level ground. The courts may not side with immigrants and their advocates each time, but they won’t be compelled to side with the government by default anymore either. Especially in the context of an immigrant-hostile administration, this might just be a lifeline.