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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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