Posts Tagged ‘Chevron’

Federal law authorizes immigration authorities to detain a criminal alien without a bond hearing “when the alien is released” from some other custody, such as state imprisonment. See 8 U.S.C. 1226(c)(1). The Board of Immigration Appeals has held that this statute authorizes mandatory detention even if the immigration authorities arrest and detain the individual well after his state custody has ended. The Fourth Circuit held today in Hosh v. Lucero that the BIA’s determination was entitled to Chevron deference and that the immigration-law version of the rule of lenity did not require an alternative outcome. Senior Judge Moon (WDVA) wrote the opinion for the court, in which Judge Keenan and Judge Floyd concurred.

Several district courts have been on both sides of the issue resolved by the Fourth Circuit in this case, although the Fourth Circuit’s decision appears to be the first circuit-level decision on this issue.


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The Fourth Circuit held today that section 212(h) of the Immigration and Nationality Act “does not bar an alien who adjusts post-entry to lawful permanent resident status from seeking a waiver of inadmissibility.” Judge Wynn wrote the opinion for the Court in Bracamontes v. Holder, in which Judge Agee joined. Judge Niemeyer concurred in part and dissented in part.

The split between the majority and the dissent focused on whether the statute unambiguously foreclosed the BIA’s interpretation of the relevant statutory provision. Judge Niemeyer’s dissent begins as follows:

While the majority has perhaps set forth a plausible construction of § 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h), its construction is not the only, or even the most, plausible construction. Indeed, I conclude that the different construction given to § 212(h) by the BIA is not only plausible but is more consistent with the other provisions of the INA. But choosing the best construction is not our task. When a statute yields two plausible constructions, we should defer to the agency, especially when the statute pertains to immigration matters.

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A divided panel of the Fourth Circuit held today in Prudencio v. Holder that the framework used by federal immigration judges to decide whether an individual has previously been convicted of a crime of moral turpitude is unauthorized because in conflict with the relevant provisions of the Immigration and Nationality Act. Judge Keenan wrote the opinion, in which Chief Judge Traxler joined. Judge Shedd penned a vigorous dissent.

The decision defies easy summary, but the dispute is an important one. Here is how Judge Shedd’s dissent begins:

The categorical approach adopted by the majority is a doctrine created by the judicial branch to address issues of concern to the judicial branch—protection of Sixth Amendment rights and efficient use of judicial resources. Although an agency may choose to adopt some version of this approach, there is no  requirement to expand this difficult, almost unworkable, limiting analysis to an agency, especially in the immigration context, and I would not do so.

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The National Electrical Manufacturers Association and the Department of Energy disagree about what qualifies as a “small electric motor” under the Energy Policy and Conservation Act. The disagreement is consequential because the Department promulgated energy conservation rules for electric induction motors with .25 to 3 horsepower, relying on its authority to establish energy conservation rules for “small electric motor[s]” under the Act. The Association petitioned for review of a final rule promulgated by the Department, contending that the statutory definition precluded the Department from regulating all motors over 1 horsepower and certain motors at or less than 1 horsepower.

By a 2-1 vote, the United States Court of Appeals for the Fourth Circuit denied the petition for review in National Electrical Manufacturers Association v. Department of Energy. Judge King wrote the opinion, which was joined by Judge Wynn. Judge Shedd dissented. The panel majority deferred to the Department’s interpretation at the second step of a Chevron analysis, whereas Judge Shedd would have stopped at step one. The opinions discuss what sort of agency interpretations are entitled to deference and the relevance of legislative history. There looks to be much here for administrative law mavens.

Kudos to Professor Caleb Nelson of the University of Virginia School of Law, for the majority’s reliance on his casebook on statutory interpretation in discussing the relevance of legislative history.

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