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IMMIGRATION JULY 12, 2024 | The Indian Eye 34

SEC v. Jarkesy and Loper Bright v. Raimondo:

How the Supreme Court’s Dismantling of the

Administrative State Impacts Immigration Law

The conservative Supreme Court ma- The Supreme Court ultimate- in Jarkesy. On the other hand, one interpretation of an ambiguous vorable interpretations such as the
jority recently issued two decisions ly held that defendants are entitled provision resembling common law statute. Chief Justice John Rob- BIA’s restrictive definition of “par-
that will have a major impact on the to jury trials when the SEC seeks fraud is the document fraud pro- erts, writing for the majority, stated ticular social group” under Matter
administrative state by transferring civil penalties against them for se- vision at INA 274C. An individu- that “Chevron is overruled. Courts of M-E-V-G , or the BIA’s narrow
power from administrative agencies to curities fraud. However, this hold- al who is subject to an INA 274C must exercise their independent interpretation of INA §203(h)(3)
the courts. We discuss both these cases ing appears unlikely to impede the hearing before an ALJ may wish to judgment in deciding whether an under Matter of Wang, which pre-
and their impact on immigration law. ability of IJs to hear cases. In its try to invoke Jarkesy to invalidate agency has acted within its statutory cludes many derivative beneficia-
SEC V. JARKESY opinion, the Supreme Court ad- the hearing because it is a violation authority, as the APA requires”, but ries of visa petitions who did not get
protection under the Child Status
of their Seventh Amendment right
dressed concerns that its holding
made clear that prior cases decided
n June 27, 2024 the Su- could reach beyond SEC admin- to a jury trial. Similarly, if there is under the Chevron framework are Protection Act (CSPA) from re-
preme Court issued its de- istrative enforcement proceedings an discrimination hearing under not automatically overruled. It is taining their parents’ priority dates.
Ocision in Securities and Ex- that replicate common law fraud. INA 274B based on an employee’s likely that courts will revert to Skid- The Supreme Court affirmed Mat-
change Commission v. Jarkesy. As Citing Oceanic Steam Navigation complaint, an employer may seek more deference, the lower-level ter of Wang purely under Chevron
discussed in our previous blog, Jark- Co. v. Stranahan, 214 U. S. 320 to invoke its right to a jury trial. framework that preceded Chevron, deference in Scialabba v. Osorio.
esy involved an investment advisor (1909), a case that involved the Since the Supreme Court did which asserts that the level of def- On the other hand, the future
who was charged with violations of imposi tion of a monetary penalty not review an appointments clause erence an agency’s decision merits of other, beneficial immigration
securities law and challenged the on a steamship company accused violation involving an ALJ, Jarkesy depends on “the thoroughness evi- policies is rendered uncertain with-
SEC’s enforcement action on the of transporting immigrants afflict- may not have impacted the Space dent in its consideration, the valid- out Chevron deference. F-1 OPT
grounds that he was deprived of his ed with “loathsome or dangerous X and Walmart lawsuits that have ity of its reasoning, its consistency is an exercise of DHS’ discretion
constitutional right to a jury trial, contagious diseases” to the United thus far successfully invalidate with earlier and later pronounce- and not explicitly authorized by
that “Congress unconstitutionally States, the Supreme Court clarified proceedings before the Office of ments, and all those factors which statute. F-1 OPT has already been
delegated legislative power to the that Congress has the power to reg- the Chief Administrative Hearing give it power to persuade, if lack- challenged, and was upheld by the
SEC by failing to provide it with ulate immigration and even impose Officer, which handles cases involv- ing power to control.” Skidmore v. First Circuit in 2022 in WashTech
an intelligible principle by which monetary fines for violations with- ing unfair employment practices, Swift & Co., 323 U. S. 134 (1944). v. U.S. under Chevron deference.
to exercise the delegated power”, out triggering the right to a jury trial document fraud and noncompli- In a previous blog, we dis- Deferred Action for Childhood
and that restrictions on the remov- under the plenary power doctrine. ance record keeping requirements. cussed the possible impacts of the Arrivals (DACA), a discretion-
al of Administrative Law Judges Justice Robert’s majority opinion These will be dealt with at a later elimination of Chevron deference, ary benefit that has been the sub-
(ALJs) violate Article II. It was cited this case as on of the catego- time in another case. However, including the idea that it may open ject of numerous legal challenges,
feared that the outcome of Jarkesy ry of cases concerning public rights, the Supreme Court’s holding in the door for challenges to a number could also be vulnerable without
could significantly impact the im- including immigration law, which Jarkesy could impact immigration of unfavorable immigration policies. Chevron. Even if Chevron no lon-
migration court system, as the au- do not include a jury trial. This dis- lawyers who have an EB-5 practice, For example, 20 CFR 656, which ger helps, there is a statutory basis
thority of Immigration Judges (IJs) cussion seems to exclude most, if as they can be subjected to SEC en- requires employers to place outdat- for the USCIS to issue work au-
could be challenged using the same not all, immigration-related matters forcement actions. As discussed in ed print advertisements in Sunday thorization to noncitizens under
arguments advanced by Jarkesy. from the Supreme Court’s holding a prior blog, the SEC has initiated newspapers as part of the labor cer- INA § 274A(h)(3) and to set time
enforcement actions against tification recruitment process could and other conditions for nonim-
immigration lawyers who it now be vulnerable to challenges. migrants under INA § 214(a)(1).
claimed had offered invest- INA §212(a)(5) states only that a The demise of Chevron also
ments without registering as noncitizen is deemed “inadmissible brings about the fall of Brand X.
a broker or received com- unless the Secretary of Labor” cer- As discussed in our prior blog, the
missions from their clients’ tifies, inter alia, that “there are not Supreme Court in National Cable
investments. The SEC often sufficient [U.S.] workers who are & Telecommunications Assn. v.
imposes monetary sanctions able, willing, qualified…and avail- Brand X Internet Services, 545 U.S.
on immigration lawyers found able at the time of application”, 967 (2005) held that an agency’s in-
to have committed a securi- and imposes no requirement on terpretation of an ambiguous stat-
ties violation. Thus, Jarkesy employers to conduct recruitment ute may still be afforded deference
could provide immigration to establish a lack of U.S. workers. even if a circuit court has interpret-
lawyers accused of securities Post Chevron deference, courts may ed the statute in a conflicting way.
fraud a means of challenging be more reluctant to defer to DOL’s Brand X has been a double edged
the enforcement proceed- interpretation of INA § 212(a)(5) sword – although allowed agencies
ings brought against them by as set forth in 20 CFR 656, which to interpret statutes in a way that
the SEC on the grounds that requires compliance with onerous was detrimental to immigration, it
they are entitled to a jury trial. recruitment steps including the also allowed for the possibility of
Although Jarkesy only placement of print ads. Moreover, creative beneficial interpretations
struck down as unconstitu- the Supreme Court also issued Cor- notwithstanding contradictory cir-
tional the lack of a civil jury ner Post v. Board of Governors of cuit court precedent. Brand X could
trial for civil penalties under the Federal Reserve System further have been harnessed to allow deriv-
securities law, Justice Soto- widening the window to challenge ative family members to be counted
mayor in her dissent identified regulations beyond the 6-year stat- together with principal applicants
at least two dozen agencies ute of limitations until the plaintiff in the employment-based (EB) and
that impose civil penalties in is injured b final agency action. family based (FB) visa preference
administrative proceedings USCIS’ “final merits deter- categories under INA § 203(d), as
including CFPB, CFTC, EPA, mination”, the second component the plain text of §203(d) does not
FCC, FDA, FMC, FMSHRC, of a two-part test for determining require separate counting of deriv-
m of FRA, DOJ, DOT, FERC, whether an applicant has satisfied atives. Although Wang v. Blinken,
HHS, HUD, MSPB, OSHA,
No. 20-5076 (D.C. Cir. 2021) held
the criteria for extraordinary abil-
CYRUS D. MEHTA & PARTNERS PLLC Treasury, USDA, and USPS. ity, outstanding researcher and that derivative family members
professor, and exceptional ability
must be counted separately in the
LOPER BRIGHT ENTERPRISES EB-5 context, Brand X could have
V. RAIMONDO immigrant visa petitions may now allowed an immigrant-friendly
be more ripe for legal challenges,

nother recent Supreme as well. This requirement arose presidential administration to is-
Court decision may, from USCIS’ interpretation of dicta sue a policy memorandum over-

  Aon the other hand, referencing a “final merits determi- ruling the case everywhere else.
   
­ nation” in the Ninth Circuit’s opin- Brand X has also been em-
€
‚   have wide reaching impacts
on immigration. In its June 28, ion in Kazarian v. USCIS, 596 F.3d ployed to the detriment of im-
2024 decision in Loper Bright 1115 (9th Cir. 2010). However, the migrants. In his concurrence in
Loper Bright v. Raimondo, Jus-
Enterprises v. Raimondo, the Ninth Circuit’s holding in Kazari- tice Gorsuch pointed to De Niz
an does not actually impose a final
Supreme Court abolished the
long-standing Chevron doc- merits determination, nor does this Robles v. Lynch, 803 F. 3d 1165
2 6th Floor trine. Under this doctrine, requirement appear anywhere in (CA10 2015), in which the BIA
had invoked Chevron to “over-

    courts were required to defer the relevant regulatory criteria. It
to the government agency’s may now be possible to attack unfa- rule a judicial precedent on which
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