Immigration Article of the Day: Strict Construction of Deportation Statutes After Loper Bright by Nancy Morawetz

 

Strict Construction of Deportation Statutes After Loper Bright by Nancy Morawetz

Abstract

The Supreme Court’s decision in Loper Bright calls on courts to apply a broad range of rules of statutory construction instead of engaging in a deferential inquiry about whether an agency’s views are reasonable. Courts of Appeals will immediately face the question how to apply their new interpretative responsibilities in the absence of Chevron. This Essay argues that courts of appeals must now apply the long-standing rule of strict construction of deportation statutes, also known as the immigration rule of lenity, which provides that ambiguities in deportation statutes be resolved to limit the sanction of deportation.  Past commentary situates the deportation strict construction rule in a world dominated by Chevron. Commentators have argued that it is a substantive canon that should be applied at step one; that it should be a tool of last resort at step one; that it should be applied at step 2 to evaluate reasonableness;  that it should be applied as a tool of last resort after Chevron step 2; that it requires a higher level of ambiguity than the ambiguity needed for deference at Chevron Step 1; or that the strict construction rule should be “interred” because it short-circuits deference to agency interpretations. There is also literature seeking to exclude deference in the specific context of detention statutes or statutes governing fear-based relief. With Loper Bright, the terrain has shifted and courts have a responsibility to apply traditional tools of statutory construction when they face a statutory question. This Essay places the traditional substantive rule of strict construction of deportation statutes in the post-Loper Bright context. It shows that the Supreme Court debated and developed the traditional rule of strict construction of deportation statutes through decisions over several decades, making it an established precedent that is worthy of full application in the wake of Loper Bright. This issue is of immediate importance to circuit courts as they adjudicate cases remanded in the wake of Loper Bright, as well as other cases percolating through the courts of appeals. 

KJ