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

Richard Frankel

Vol. 54

November 2020

Page 547

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 power to issue nationwide binding precedent, and to reinterpret 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 immigration judges to decide cases in an evenhanded way.

Despite possessing such expansive power, the Attorney General receives only limited judicial oversight. Under the deferential Chevron standard, courts will uphold an agency’s interpretation of an ambiguous statute as long as the interpretation is reasonable. This often is the difference maker for courts, as agencies win in court much more often when they receive Chevron deference than when they do not.

While scholars have addressed whether Chevron should apply to a few discrete areas of immigration law, they have not addressed whether Chevron should apply to the Attorney General’s immigration decisions. This Article fills that gap and 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, courts should apply more robust judicial review to ensure that the Attorney General’s unilateral power to reshape immigration law does not go unchecked. View Full Article

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