Immigration Article of the Day: Deference in Immigration after Loper Bright by Shoba Sivaprasad Wadhia, Loy. U. Chi. L. J. Forthcoming
Deference in Immigration after Loper Bright by Shoba Sivaprasad Wadhia, Loy. U. Chi. L. J. Forthcoming
Abstract
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo marks a turning point in administrative law by discarding Chevron framework and requiring courts to independently interpret ambiguous statutes. Immigration law—largely shaped by agency interpretation—offers a uniquely revealing lens through which to assess the Court’s decision in Loper Bright. The elimination of Chevron deference will alter immigration law through its impact on the interpretive authority of the Board of Immigration Appeals (BIA), attorney general certifications, and agency rulemaking. Drawing on recent and shifting BIA decisions, this Essay illustrates how agency-driven statutory interpretation has historically filled gaps in immigration law and how deference may nevertheless persist through statutory provisions and long-standing institutional practice. Moreover, this Essay further highlights many foundational immigration law terms that remain undefined by statute or regulation which may likely now be interpreted increasingly by federal courts rather the BIA. Ultimately the Court’s decision in Loper Bright will produce a transitional period, during which courts and agencies redefine the boundaries of interpretive authority in immigration law.
