Interring the Immigration Rule of Lenity

Abstract

The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tie-breaker of sorts, a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even this rhetorical role has been called into question with the advent of Chevron deference. The raison d’etre of the rule was to provide the basis of decision when the court was confronted with two equally plausible interpretations of a statutory provision. Chevron now fills that gap, and there seems no room left for the immigration rule of lenity in modern administrative law. Rather than continue to allow this outmoded rule of decision to stalk argumentation in immigration cases, the Supreme Court should simply euthanize and inter the rule at the earliest opportunity.