Immigration Article of the Day: Mind The Gap: Delegation In Immigration Law After Loper Bright by Duncan Fulton

Mind The Gap: Delegation In Immigration Law After Loper Bright by Duncan Fulton

Abstract

Loper Bright disposed of Chevron’s presumption that agencies enjoy interpretative primacy over statutory ambiguities. Two resulting questions are particularly pressing: (1) how clearly must Congress delegate an administrative agency authority to “fill up the details of a statutory scheme” or mend a gap in the statute; and (2) when does an agency abuse its exercise of delegated authority? 

Several case studies illustrate how courts are likely to apply Loper delegation in the context of immigration law: (1) determine the scope of a statute’s delegation and (2) review for arbitrary implementation. The first case study analyzes the decades-long assertion of authority by the Board of Immigration Appeals to interpret the “particular social group” ground for asylum. This protected ground may represent an implied delegation. Courts have criticized the BIA’s inconsistent interpretations, which are especially problematic in the BIA’s repeated flips on gender-based asylum claims, and which present strong reliance interests. Second, by contrast, a statutory gap in the asylee adjustment statute is demonstrative of an implied delegation that courts are likely to respect after Loper Bright. This gap, which the Supreme Court will resolve this upcoming Term, may well provide early feedback on Loper delegation.