Opinion analysis: Another stop at the Chevron station and deference to the BIA
on Jun 9, 2014 at 3:26 pm
Focusing on interpreting the text of the notoriously complex Immigration and Nationality Act and the application of generally applicable doctrines of administrative deference, the Roberts Court’s immigration decisions have demonstrated an unexceptional approach to immigration law. The decision in Scialabba v. Cuellar de Osorio is the latest example.
Due to “per country ceilings” in the U.S. immigration laws limiting the number of visas issued annually to citizens of any single country, some noncitizens experience waits of many years – in some instances, decades — between when they file a visa application and when a visa is actually issued. To address one problem caused by the delays, Congress in 2002 amended the Immigration and Nationality Act with the Child Status Protection Act (CPSA), whichestablishes rules for determining whether particular aliens who initially qualified for visas as “children” can obtain visas despite “aging out” – and no longer being children under the immigration laws – as derivative beneficiaries of family members’ visa applications..
Natives of El Salvador, Rosalina Cuellar de Osorio and her family waited seven years for immigrant visas that would allow them to join her U.S.-citizen mother in the United States. The family was notified that they were next in line for visas, but were also informed that the applicant’s son, who had turned twenty-one while the application was pending and thus was no longer a “child” for purpose of the immigration laws, was not eligible for a visa and thus could not immigrate lawfully to the United States with the rest of his family. The Board of Immigration Appeals (BIA) had interpreted the statute to permit the issuance of the visa to an “aged out” child for some, but not all, of the family visa categories.
An en banc panel of the U.S. Court of Appeals of the Ninth Circuit disagreed with the BIA, concluding that the statute unambiguously grants relief to aged-out derivative beneficiaries; because the Board’s interpretation conflicts with the language of the statute, it was not entitled to deference.
Section 1153(h) of the Immigration and Nationality Act provides that, “[i]f the age of an alien is determined . . . to be 21 years of age or older . . . , the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” The issues presented to the Court in this case were (1) whether Section 1153(h)(3) grants relief to all noncitizens who qualify as “child” derivative beneficiaries when a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the BIA reasonably interpreted the statute.
Justice Kagan announced the judgment of the Court and wrote the plurality opinion, in which Justices Kennedy and Ginsburg joined. She began the analysis as follows:
Principles of Chevron deference apply when the BIA interprets the immigration laws. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984) . . . . Indeed, “judicial deference to the Executive Branch is especially appropriate in the immigration context,” where decisions about a complex statutory scheme often implicate foreign relations.
After engaging in an exhaustive analysis of the statutory text, Justice Kagan concluded that it was ambiguous and subject to “internal tension mak[ing] possible alternative reasonable constructions.” She concluded that “[t]his is the kind of case Chevron was built for. . . . Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role. We decline that path, and defer to the Board.”
Chief Justice Roberts, joined by Justice Scalia, agreed that the BIA’s interpretation of the statute was reasonable, but, unlike the plurality, found no conflict or internal tension in it. In his view, the Board’s reasonable interpretation is consistent with the ordinary meaning of the statute.
Finding the BIA’s interpretation contrary to the statutory text and thus not entitled to deference, Justice Alito dissented.
Justice Sotomayor also filed a dissenting opinion, in which Justices Breyer and Thomas (except as to a footnote) joined. In her view, “because the Court and the BIA ignore obvious ways in which the provision can operate as a coherent whole and instead construe the statute as a self-contradiction that was broken from the moment Congress wrote it, I respectfully dissent.”
Scialabba v. Cuellar de Osorio is an example of the bread-and-butter immigration cases being reviewed by the federal courts today. The BIA is interpreting a complex immigration statute. The reviewing courts are deciding, under generally applicable rules of administrative law and the standard modes of statutory construction, what amount of deference should be accorded to the agency. While reasonable minds may differ on the results, the Roberts Court is consistently applying routine legal methods and doctrines to immigration law, which was once well-known for exceptional deference to the executive branch.
