The practice of immigration law relies heavily upon administrative agency regulations and interpretations. For four decades, the Supreme Court’s decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. guided federal courts in their analysis of regulatory actions. In recognition of the agencies’ expertise and familiarity with complex areas of law, the Chevron doctrine required judicial deference to administrative interpretations of statutes. In June 2024, however, the Supreme Court overruled Chevron in a decision likely to create a significant impact upon the development of immigration precedent and the ability to challenge agency rulemaking. Loper Bright Enterprises v. Raimondo, 114 S.Ct. 224 (2024). Under Loper Bright Enterprises, courts are allowed to not defer to agencies and should independently interpret the statue in question.

Background on Chevron and Its Importance

To understand the magnitude of the Supreme Court’s decision in Loper Bright Enterprises, it is first important to understand the holding in the now-overruled Chevron case. In Chevron, the Supreme Court set out a two-step test for federal court review of agency interpretation. The first step required a federal court to review an agency interpretation to assess whether Congressional intent in drafting the statute was clear. If it was, the inquiry ended there. However, if the statute was ambiguous, the reviewing court would proceed to step two and consider whether the agency’s interpretation was reasonable. If it was, the reviewing court would have to defer to it. The logic behind this decision was that agencies have special expertise and knowledge of their subject matter that federal courts lack. Since its issuance in 1984, Chevron became the most cited Supreme Court decision in history and its reach went beyond the environmental regulations that were at the heart of that decision.

Overview of Loper Bright Enterprises

In Loper Bright Enterprises, petitioners challenged a regulation that required commercial fisherman to allow federal agents to board their watercrafts for the purpose of monitoring compliance with fishing regulations. The regulation also required the fisherman to pay the salaries of the federal observers. The petitioners argued that the Magnuson-Stevens Fishery Conservation and Management Act, which granted authority to the National Marine Fisheries Service to promulgate regulations, did not extend as far as the agency’s interpretation and did not allow the agency to put the cost burden of the federal observers on the fisherman. The petitioners asked the Court to find that the Constitution requires that courts — not agencies — determine the statute’s allowable reach. The Court agreed with the petitioners and overruled Chevron holding that, under the Administrative Procedure Act, judicial courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.” Loper Bright Enterprises, 144 S.Ct. at 2247.

Now, after Loper Bright Enterprises, courts are directed to exercise independent judgment in interpreting statutes, even if they are ambiguous. Agency interpretations, however, may still be considered in the reviewing court’s analysis. Those interpretations, the Court explained, “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Loper Bright Enterprises, 144 S.Ct. at 2259. This approach of considering agency interpretation as guidance rather than affording it significant deference is known as “Skidmore deference,” which refers to the Court’s previous holding in Skidmore v. Swift & Co., 323 U.S. 134 (1944).

Although the Court overruled Chevron, the Loper Bright Enterprises decision clarifies that cases previously decided under the Chevron framework remain good law. Rather than call into question 40 years of precedent, the Court characterized its decision in Loper Bright Enterprises as a “change in interpretive methodology” that does not undermine the holdings in cases that were previously decided under Chevron. Loper Bright Enterprises, 144 S.Ct. at 2273.

Loper Bright’s Potential Implications on Immigration Matters

So why does Loper Bright Enterprises matter for immigration cases? Chevron has required federal courts to defer to agency interpretations, including precedential Board of Immigration Appeals (BIA) decisions and regulations. These have concerned a range of immigration matters, from interpretations of the Child Status Protection Act, the definition of the term “conviction,” what constitutes a “crime involving moral turpitude,” what makes up a “particular social group” for asylum eligibility, and how the term “exceptional and extremely unusual hardship” should be defined for cancellation of removal eligibility. Many immigration laws are outdated and poorly drafted, having been written decades ago. The ambiguous language in some of these laws leaves much room for administrative agencies to fill in gaps in the statute. Given the current conservative bent of the BIA, these statutes have often been interpreted in ways that were unfavorable to immigrants. For that reason, many immigration advocates have cheered the overruling of Chevron because they believe it may give their clients a fairer shot at obtaining relief. Advocates also note that Loper Bright Enterprises leaves room for advocates to challenge agency interpretations not only issued by the BIA but those issued by U.S. Citizenship and Immigration Services, the Department of State, Customs and Border Protection, and Immigration and Customs Enforcement.

The positive impact of Loper Bright Enterprises for clients may also depend on where they reside. Litigators in more immigrant-friendly federal court jurisdictions such as the Second, Fourth, and Ninth Circuits may find judges who are more receptive to creative arguments and will not be encumbered by the need to defer to conservative agency interpretations. On the other hand, litigators in the more conservative Fifth Circuit may face judges even more emboldened to adopt harsh anti-immigrant stances. Ultimately, the Supreme Court transferred the power from administrative agencies to federal court judges to interpret ambiguous laws. Whether that is a good or bad thing for immigrants may come down to where they live and how zealously their representatives can advocate on their behalf.

Advocates’ enthusiasm about the potential for Loper Bright Enterprises, however, may be tempered by the realization that the decision also would limit an immigrant-friendly administration in its ability to promulgate new rules that benefit immigrants.

Following its decision in Loper Bright Enterprises, the Court remanded immigration cases analyzing interpretations regarding the definition of what constitutes a conviction of a crime involving moral turpitude and the definition of what constitutes a conviction involving child abuse. On remand, the circuit courts must consider the issue without relying on Chevron deference. Upon re-review of these cases, circuit courts may still be guided by the BIA’s interpretations, employing the Skidmore doctrine, but may not simply defer to the agency’s reasonable interpretation without further statutory analysis. In re-reviewing these cases, some courts may continue to defer to the BIA interpretation under Skidmore, while others may apply an alternate construction, even if the BIA’s analysis was also a reasonable interpretation of the statute. These remanded cases represent some of the first tests to the applicability of Loper Bright Enterprises in the immigration context and may demonstrate the potential for disparate application of immigration laws across circuits.

Conclusion

The Supreme Court’s decision in Loper Bright Enterprises represents a dramatic change in administrative agencies’ role in interpreting ambiguous statutes. Reviewing courts are no longer required to defer to agencies’ reasonable interpretations of ambiguous provisions of statutes like many contained in the Immigration and Nationality Act. Instead, under the new Loper Bright Enterprises framework, courts may contradict and overrule agencies’ interpretations, even if they are well-reasoned.

The extent, however, of the impact of Loper Bright Enterprises on immigration practice is difficult to ascertain in the early days following the Court’s landmark decision. While this notable transfer of authority may result in a flood of litigation, courts may still consider agency interpretations as guidance in their analyses. It remains to be seen to what extent federal courts will be motivated to question agency regulations and adjudications.