Immigration Article of the Day: Slouching Toward Oblivion: the Divergent Implementation and Potential Exodus of Chevron Analysis in the Supreme Court’s Interpretation of Immigration Law by Amy Moore

On February 12, 2019, Reps. García (D-IL), Espaillat (D-NY), and Velázquez (D-NY) as well as 83 more House Democrats sent a letter to Director L. Francis Cissna raising concerns about USCIS’s growing backlog of adjudications. 

On February 22, 2019, the Colorado Advisory Committee to the U.S. Commission on Civil Rights will hold a public briefing to examine the backlog in citizenship and naturalization applications in the U.S. Citizenship and Immigration Services. The Committee will examine the cause of the backlog, and its civil rights implications, and will look at ways to restore the agency’s processing times to its selfimposed target of six months. There will be livestreaming of the event at: https://cu.law/live.

Confirmed panelists include: 

Bryce Downer, Attorney, Downer Legal Group 

John Eastman, Law Professor, Chapman University 

Kristi Goldinger, District Director, US Citizenship and Immigration Service 

Diego Iñiguez-López, Policy and Communications Associate, National Partnership for New Americans 

Jennifer Kain-Rios, Immigration Attorney, KainRios Immigration 

Nicole Melaku, Executive Director Legal Services Coordinator, CO Immigrant Rights Coalition 

Robert Preuhs, Professor of Political Science, Metropolitan State University of Denver 

Jamie Torres, Director of the Denver Office of Immigrant and Refugee Affairs 

Travis Weiner, CO Chapter Lead, Veterans for American Ideals & Veterans for New Americans

DATE: February 22, 2019

LOCATION: University of Colorado Law School, Wolf Law Building, Wittemeyer Court Room 2450 Kittredge Loop Drive, Boulder, CO 80305 Live-streaming at: https://cu.law/live

Slouching Toward Oblivion: the Divergent Implementation and Potential Exodus of Chevron Analysis in the Supreme Court’s Interpretation of Immigration Law by Amy Moore, ___ UMKC L. Rev. ___ (Spring 2019 Forthcoming)

Abstract

The adoption of the Chevron test in 1984 radically changed the face of judicial deference to agency action, but it has taken some time for the test to truly develop meaning and uniformity in the jurisprudence. This article examines some carefully curated examples of Chevron analysis by the Supreme Court since the test’s inception but focuses on the Court’s treatment of agency deference in cases where Chevron was used without being specifically noted or cited. In analyzing the case law, there appear to be four large categories of reasons for avoidance: constitutional concerns, jurisdictional or judicial review delineations, plain language interpretations, and criminal law interpretation that intersects with the immigration interpretation. This article creates a doctrinal map for the Supreme Court’s “shadow” use of Chevron deference and argues for a uniform application of the test and a properly structured step zero level analysis. This is especially relevant in light of congressional efforts to overturn the doctrine by statute and recent judicial invitations to overrule it.

KJ