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IMMIGRATION FEBRUARY 16, 2024 | The Indian Eye 43

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employment-based (EB) and family Garland’s decision, reinstated the ministrations may reinterpret ambig- is genuinely ambiguous, whether the
based (FB) visa preference categories prior rule under Matter of Avetisyan, uous statutory provisions. agency’s interpretation is reasonable;
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under INA § 203(d). There is nothing which permitted IJs and the BIA to Of course, if Loper Bright Enter- and (iii) even if it is a reasonable in-
in §203(d) that requires the separate administratively close removal pro- prises and Relentless overrule Chev- terpretation, whether it meets the
counting of derivatives even though ceedings, even if a party opposes. Al- ron, Brand X too will fall along with “minimum threshold” to grant Auer
the administration has been separate- though the Second Circuit’s decision its potential for be a force for good deference, requiring the court to con-
ly counting them since the enactment was disappointing, the case leaves for immigrants. There is a possibility duct an “independent inquiry” into
of this provision. Although the Court open some interesting possibilities. In that Chevron may be narrowed rather whether (a) it is an authoritative or
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of Appeals for the D.C. Circuit held Garcia v. Garland the Second Circuit than completely overruled. Green and official position of the agency; (b) it
that derivative family members must held that that agency’s interpretation Steve Yale Loehr suggest that the Su- reflects the agency’s substantive ex-
be counted separately in the EB-5 on administrative closure was valid preme Court may cabin Chevron as it pertise; and (c) the agency’s interpre-
context in Wang v. Blinken, No. 20- because Matter of Castro-Tum was did for Auer deference. The Supreme tation of the rule reflects “its fair and
5076 (D.C. Cir. 2021), Brand X could valid and applicable at the time of the Court in Kisor v. Wilkie provided no considered judgment.”
provide the Biden administration with agency’s decision. Thus, if an IJ or new radical test of how it would view If the Supreme Court similarly
a way to nonetheless change this in- the BIA grant administrative closure an agency’s interpretation of its own narrows Chevron as it did with Auer
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terpretation by deeming INA 203(d) in reliance on Matter of Cruz-Valdez, regulation. It essentially “cabined the deference, then Brand X will also be
ambiguous and issuing a rule or pol- that decision should be upheld even if scope” of Auer deference, and set narrowed and survive. But if Chev-
icy memo overruling Wang v. Blinken a less immigrant-friendly administra- forth a three-step approach under Ki- ron falls, so will Brand X rendering it
everywhere in the country except in tion overrules the decision in future. sor. Under this test, the court must harder for a future immigrant friendly
the D.C. Circuit. Other Court of Ap- The same logic could apply to other determine (i) that the regulation is administration to implement broad
peals decisions have similarly limited Biden administration policies should “genuinely ambiguous” — the court based immigration reform.
the Biden administration’s ability to they be challenged in future. Further, should reach this conclusion after
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use Brand X to the advantage of im- the decision in Garcia v. Garland as- exhausting all the “traditional tools” Kaitlyn Box is a Senior Associate at
migrants. serts that principle that different ad- of construction; (ii) if the regulation Cyrus D. Mehta & Partners PLLC
Matter of Castro-Tum, a Trump _________________________________________________________________________________________________________
era decision holding that Immigra- Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
tion Judges (IJs) and the Board of Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
Immigration Appeals (BIA) do not
have the authority to administrative- mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
ly close cases was rejected by several Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of
Circuit Court decisions and ultimately Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board
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overturned it its entirely by Attorney of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the
General Garland’s 2021 decision in New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and
Matter of Cruz-Valdez. Nevertheless, is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta
the Second Circuit upheld the BIA’s received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
decision not to grant administrative Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has
closure under Matter of Castro-Tum also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded
in Garcia v. Garland, a 2023 deci- lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
sion, despite the fact that the Biden on your browser and watch IndiaLife TV 24 Hours
administration had already, through Chambers Global 2019 in immigration law, among other rankings.

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