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IMMIGRATION FEBRUARY 09, 2024 | The Indian Eye 42

Musings On Brand X As a Force

for Good Ahead of the Supreme Court’s

Ruling on Chevron Deference

BY CYRUS D. MEHTA AND thus becomes subject to def- able interpretation of a statute er had naturalized in 1988, addressing an aspect of the
KAITLYN BOX erence, is also a subjective granting H-1B or L visa clas- and subsequently gained legal law that the petitioner in the
determination based on the sification to a noncitizen custody of Mr. Douglas when Third Circuit’s previous deci-
he Supreme Court on administration’s political ide- worker. However, Chevron his parents divorced. sion in Cheruku v. Att’y Gen.,
January 17, 2024 heard ology at any given moment deference can help when the Case law in the Third 662 F.3d 198 (3d Cir. 2011),
Targuments in two cases in time. There is thus a great immigration agency seeks to Circuit required that an ap- had not challenged, see Mat-
– Relentless, Inc. v. Depart- likelihood that Chevron will give employment authoriza- plicant under former INA ter of Arrabally, 25 I&N Dec.
ment of Commerce and Lop- either be overturned or nar- tion benefits, such as with the §321(a)(3) demonstrate that at 775 n.6.
er Bright Enterprises v. Rai- rowed. As Brian Green and Deferred Action for Child- his custodial parent natural- Brand X can also provide
mondo – that may determine Stephen Yale-Loehr have as- hood Arrivals program or with ized after legal separation hope when even the Supreme
whether courts will continue tutely observed in their blog F-1 optional practical training. from the other parent. See Court may have ostensibly
to give deference to a federal on Think Immigration: If the Supreme Court Jordon v. Att’y Gen., 424 shut the door. If a court’s de-
agency’s interpretation of an Not all immigration prac- retains but limits Chevron, F.3d 320, 330 (3d Cir. 2005) cision is based on deference
ambiguous federal statute as titioners and their clients will efforts will be made to ar- (quoting Bagot v. Ashcroft, to an agency’s interpretation
held in Chevron U.S.A., Inc. feel the impact if Chevron is gue that Chevron deference 398 F.3d 252, 257 (3d Cir. of a statute, a subsequent
v. Natural Resources Defense narrowed or overruled. There should not apply in BIA ad- 2005)). The BIA, however, administration may interpret
Council, 467 U.S. 837 (1984). will be winners and losers, and judications. Many case deci- had previously held that one the statute differently not-
Chevron deference also some unintended consequenc- sions have held that BIA ad- may demonstrate citizenship withstanding the court’s de-
applies to ambiguous pro- es may occur in limiting previ- judications receive Chevron under former INA §321(a) cision. In Scialabba v. Cuel-
visions under the INA. It is ously afforded deference to deference, but there may be regardless of whether his lar de Osorio, the Supreme
currently disfavored by the federal agency decision mak- room to argue for a reversal parent gained legal custody Court ruled that the BIA’s
conservative majority in the ing. For example, in remov- of that precedent, depending before or after naturalizing. previous interpretation of the
Supreme Court because it al cases, Chevron deference on how the Court rules in Re- See Matter of Baires, 24 I&N Child Status Protection Act
gives too much power to a hurts those seeking review of lentless and Loper. Dec. 467 (BIA 2008). Relying (CSPA), as set out in Mat-
federal agency to decide what immigration judge or Board If the Supreme Court’s on Brand X, the Board of Im- ter of Wang, 25 I&N Dec. 28
the law is. It is also disfavored of Immigration Appeals deci- holdings in Relentless and migration Appeals chose to (BIA 2009), was a reasonable
because deciding whether sions. It can also hurt employ- Loper Bright deprive agen- follow its own precedent and interpretation of an ambigu-
a statute is ambiguous, and ers seeking to obtain a favor- cies of the ability to interpret hold that Mr. Douglas was a ous statute. In particular, the
ambiguous statutes with- U.S. citizen, circuit court case Court deferred to the BIA’s
out explicit Congressio- law notwithstanding. narrow interpretation of INA
nal authorization, other Isaacson’s blog also §203(h)(3), 8 U.S.C. §1153(h)
precedent beyond Chev- points to other instances (3), severely limiting which
ron could be eviscerated where the BIA previously derivative beneficiaries of visa
as well. In National Ca- rejected Court of Appeals petitions could retain their
ble & Telecommunica- case law that it thought to be parents’ priority dates. This
tions Assn. v. Brand X incorrect in favor of a more is a disappointing decision,
Internet Services, 545 immigrant-friendly approach but the details of the opinions
U.S. 967 (2005), the Su- but not as explicitly as in Mat- in Cuellar de Osorio do leave
preme Court held that an ter of Douglas. In Matter of room for some hope. When
agency’s interpretation F-P-R-, 24 I&N Dec. 681 a statue is ambiguous in that
of an ambiguous statute (BIA 2008), for example, the way, Brand X makes clear
may still be afforded def- BIA declined to follow the that the BIA could reverse
erence even if a circuit Second Circuit’s decision in its position. So too could the
court has interpreted the Joaquin-Porras v. Gonzales, Attorney General go against
statute in a conflicting 435 F.3d 172 (2d Cir 2006), Matter of Wang and adopt
way. The Court’s holding and held that the one-year pe- a broader interpretation of
in Brand X is a double riod in which a timely applica- INA §203(h)(3). If Brand X
edged sword – it can em- tion for asylum may be made falls by the wayside like Chev-
power agencies to inter- runs from the applicant’s lit- ron, there will be no room for
pret statutes in a way that eral “last arrival” even when a future administration to re-
will be detrimental to im- that last arrival followed a rel- interpret this CSPA provision
migrants, or in a benefi- atively brief trip outside the that could provide amelio-
cial way, even in light of United States pursuant to ad- rative relief for hundreds of
problematic circuit court vance parole granted by im- thousands of children.
m of precedent. One example migration authorities (which The demise of Brand X
of an agency using Brand
the Second Circuit had held would deprive a future ad-
CYRUS D. MEHTA & PARTNERS PLLC X to the benefit of an would not restart the one- ministration that might be
immigrant may be found year clock). Isaacson also as- bolder and kinder on immi-
in Matter of Douglas, tutely points to a footnote in gration, a potentially import-

26 I&N Dec. 197 (BIA the BIA’s acclaimed decision ant tool to implement immi-

  2013), discussed at in Matter of Arrabally and gration reform in the face of
   
­ length by David Isaacson Yerrabelly, 25 I&N Dec. 771 Congressional polarization
€
‚   in a prior blog. Matter (BIA 2012) (regarding trav- and inaction. As we have
of Douglas involved an el on advance parole by one noted in prior blogs, Brand
individual, Mr. Douglas, who has accrued unlawful X could be used by that ad-
who was born in Jamaica presence) that could be read ministration to, for example,
and seeking to establish as pointing in this direction, count derivative family mem-
2 6th Floor citizenship under former the BIA in Arrabally made bers together with the prin-

    INA §321(a). His moth- much of the fact that it was cipal applicant in both the

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