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IMMIGRATION JULY 12, 2024 | The Indian Eye 35

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many immigrants had relied” in the 10th addressing an aspect of the law that the peti- Stump responded to Loper Bright as follows: system reflective of our modern-day realities.”
Circuit. That precedent was Padilla–Calde- tioner in the Third Circuit’s previous decision “The Loper Bright and Relentless cas- Notwithstanding Stump’s upbeat view,
ra v. Gonzales, 426 F. 3d 1294 (CA10 2005), in Cheruku v. Att’y Gen., 662 F.3d 198 (3d Cir. es had nothing to do with immigration law not everybody will benefit from the fall of
which held that a noncitizen subject to the 2011), had not challenged, see Matter of Ar- and policy, but SCOTUS overturning the Chevron. The most vulnerable being DACA
permanent bar could nonetheless adjust rabally, 25 I&N Dec. at 775 n.6. With the fall longstanding Chevron doctrine will have a recipients whose cases is being heard at the
pursuant to INA § 245(i). According to Jus- of Chevron, Arrabally might also be vulnera- significant impact on many immigration ad- Fifth Circuit Court of Appeals, and Stump
tice Gorsuch, who clearly dislikes Brand X: ble although it remains to be seen whether a judications. This now means that an agency’s too acknowledges that “valuable immigration
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“The agency then sought to apply its new state or organization, which tries to challenge interpretation of the INA doesn’t automat- benefits created by regulations may be threat-
interpretation retroactively to punish those Arrabally and other immigration policies may ically prevail, which could level the playing ened if not clearly based in statutory language.
immigrants—including Alfonzo De Niz Ro- get standing to sue. In United States v. Texas, field for immigrants and their families and “ If the Fifth Circuit and then the Supreme
bles, who had relied on that judicial precedent the Supreme Court held that Texas and Loui- employers. In removal cases, those seeking Court find DACA unlawful, Congress will
as authority to remain in this country with his siana had no standing to challenge the Biden review of immigration judges’ or Board of need to step in to save DACA recipients. This
U. S. wife and four children…Our court ruled administration’s enforcement priorities. Writ- Immigration Appeals decisions should now remains wishful thinking as Congress has nev-
that this retrospective application of the BIA’s ing for the majority, Justice Kavanaugh said: have more opportunity to do so. Employers er been able to pass meaningful immigration
new interpretation of the law violated Mr. De “The States have brought an extraordinarily seeking to obtain a favorable interpretation of reform in recent times. Chevron provided the
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Niz Robles’s due process rights…But as a low- unusual lawsuit. They want a federal court to a statute granting H-1B or L visa classification bulwark for an immigrant friendly administra-
er court, we could treat only the symptom, not order the Executive Branch to alter its arrest to a noncitizen worker may also benefit. We tion to pass meaningful immigration reform
the disease. So Chevron permitted the agency policies so as to make more arrests. Federal note possible negative consequences as well, through executive action thus providing ame-
going forward to overrule a judicial decision courts have not traditionally entertained that as the decision has severely handicapped the liorative relief to hundreds of thousands of
about the best reading of the law with its own kind of lawsuit; indeed, the States cite no executive branch’s power to modernize our nonimmigrants. Some programs involving pa-
different ‘reasonable’ one and in that way precedent for a lawsuit like this.” In the face immigration system through policy updates role have a statutory basis under INA 212(d)
deny relief to countless future immigrants.” of United States v. Texas, it could be hard- or regulations. Valuable immigration bene- (5) and will continue but other programs with-
Its problematic aspects aside, Brand X er for states to argue that they have stand- fits created by regulations may be threatened out explicit statutory language may be sus-
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was a tool for reversing unfavorable circuit ing to challenge Arrabally or other policies. if not clearly based on statutory language. ceptible to challenge. Without Chevron and
court decisions, but has now fallen along with While many are fearing that the un- With this ruling, SCOTUS is punting the Congress stepping up, the rug has been pulled
Chevron. In Matter of F-P-R-, 24 I&N Dec. doing of Chevron will unleash an environ- rule making process back to Congress. We under the feet of vulnerable noncitizens.
681 (BIA 2008), for example, the BIA de- mental, consumer, food and drug safety hope Congress takes the initiative to come *Kaitlyn Box is a Senior Associate at Cyrus
clined to follow the Second Circuit’s decision free for all, AILA is viewing the decision in together in a bipartisan fashion to legislate D. Mehta & Partners PLLC.
in Joaquin-Porras v. Gonzales, 435 F.3d 172 a more positive light. AILA’s president Kelly sensible solutions that make our immigration
(2d Cir 2006), and held that the one-year pe-
riod in which a timely application for asylum _________________________________________________________________________________________________________
may be made runs from the applicant’s literal Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta & Partners PLLC
“last arrival” even when that last arrival fol- in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s
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lowed a relatively brief trip outside the United Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First Department,
States pursuant to advance parole granted by New York; member of the ABA Commission on Immigration; board member of Volunteers for Legal Services and board member of New York
immigration authorities (which the Second Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration Council and former chair of the
Circuit had held would not restart the one- Committee on Immigration and Nationality Law of the New York City Bar Association. He is a frequent speaker and writer on various immi-
year clock). Also in Matter of Arrabally and gration-related issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled
Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (re- Immigration and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
garding travel on advance parole by one who and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.
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has accrued unlawful presence) that could be He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers
read as pointing in this direction, the BIA in in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019
Arrabally made much of the fact that it was in immigration law, among other rankings.
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