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Cardozo Law Review

Abstract

The Supreme Court held for four decades that Chevron deference should apply in all immigration proceedings. How, then, will asylum proceedings change in a post-Chevron world? When, and under what circumstances, will courts continue to defer to the findings of immigration judges and the Board of Immigration Appeals (BIA)? And why does it matter? This Article answers those questions.

These issues require urgent examination for three reasons. First, they directly confront an issue pending before the U.S. Supreme Court in Urias-Orellana v. Bondi: Without the protection of Chevron insulating BIA decisions from meaningful judicial review, can certain legal questions like the definition of “persecution” be recast as fact questions requiring statutory deference from the courts? Those with an institutional interest in aggregating agency power over asylum matters, including the attorney general, have taken this exact approach.

Second, the contours of post-Chevron power sharing between the executive branch and the federal courts are only beginning to be drawn, and this exercise will continue for years, if not decades. Nowhere is the issue more salient than in asylum law, where courts have traditionally granted multilayered deference to the executive branch, but where agency interpretation of ambiguous statutory provisions has been met with withering criticism from courts and scholars alike. The sixfold increase in asylum applications this decade further highlights the importance of articulating an appropriate post-Chevron role for judicial review in asylum cases.

Third, the extent to which courts may reclaim interpretive power in asylum proceedings will prove to be a matter of urgent and enduring importance in light of the current administration’s open attempts to unilaterally restrict asylum eligibility to a desirable subset of applicants, arguably in violation of international law, court and agency precedent, and (to use the language of Chevron) reasonable constructions of the refugee statute.

Disciplines

Administrative Law | Immigration Law | Jurisdiction

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