Deporting Chevron: Why the Attorney General’s Immigration Decisions Should not Receive Chevron Deference

Abstract

The Trump Administration has transformed the landscape of immigration law. One of the most far-reaching — but least visible — tools it has used is the Attorney General’s power to refer immigration decisions to itself for decision. The Attorney General can use this decision-making power to issue precedent that is binding on all immigration courts and immigration officers, to set policy, and to interpret immigration statutes and regulations in ways that impact the millions of non-citizens present in the United States. While sparingly used in prior administrations, recent Attorneys General have exercised the referral power at a skyrocketing rate, and have issued decisions curtailing the rights of asylum-seekers, forcing more non-citizens into detention, and limiting the power of non-partisan immigration judges to enable non-citizens to decide cases in an even-handed way. Despite possessing such expansive power, the Attorney General receives only limited judicial oversight, as courts afford Chevron deference to the Attorney General’s interpretations of immigration law. Under that standard, a court will uphold an agency’s interpretation of an ambiguous statute as long as the interpretation is reasonable. This can be a difference-maker, as agencies are highly likely to win in court when courts apply Chevron deference. Yet, in recent years, various Supreme Court Justices have expressed concerns about Chevron and have signaled an openness to revisiting it. While some scholars have addressed whether Chevron should apply to discrete areas of immigration law, no one has addressed whether Chevron should apply to Attorney General immigration decisions. This article argues that Chevron deference should not apply because none of the three primary justifications for Chevron deference — procedural formality, specialized expertise, or democratic accountability — are present in Attorney General immigration decisions. Rather, when courts review the Attorney General’s interpretation of a statute, they should apply Skidmore deference, a much lower degree of deference than Chevron. A framework of more robust judicial review will ensure that the Attorney General’s unilateral power to issue immigration decisions is not unchecked.