Statutory Interpretation (Federal Immigration)

  • The purpose of law is to provide certainty
  • People want/need to know consequences of behavior, especially for those engaged in commercial activities—need to know boundaries
  • Loose interpretations can present some major problems, because application unclear
  • You are witnessing an internal struggle within the judiciary about its relationship with the legislative and executive branch
    • Chevron, etc.—this area of law very confusing
  • While some cases may appear clear you can see that they (the court) could have viewed the statute that they were reviewing in a different way
    • Just b/c there are rules doesn’t mean they area always applied in the same way—two courts could come out completely differently
  • SCOTUS only decides approximately 200 cases per year
    • Wait until conflict is sharp before intervening
    • Can mean that uncertainty/unsettled areas of law remain for a while
  • Courts are not supposed to be partners with the legislature
    • The legislative and executive are more like partners
    • Courts will decide when Congress or the agency has gone too far
  • Court will guard their limited jurisdiction
    • Very territorial and protective!
  • Court views its role as essential to providing a sense of certainty in the law
    • Once again, certainty is key
  • Agency rules have nationwide application and can give a sense of greater certainty than court decisions, especially those of lower courts
    • When an agency decides or gives an interpretation, it has impact across the U.S.
    • Except for SCOTUS, a court decision applies in a narrow geographic area (unless agency adopts it or other courts pick it up)
    • Thus can have 1 set of rules for U.S., and all of U.S. except for 9th circuit or something. Or even N.D. Cal…
Immigration cases are different than other kinds of cases
  • Greater deference to agency (often)—
    • delegation that's written into statute
    • by its nature, authority to determine rules of entry, or who can have status is very different that rules of other areas of law—Congress can do most of what they want
  • Fewer constitutional constraints
  • Sometimes there are no constitutional concerns
  • Thus statutory construction especially key
Useful Source Materials for Immigration Statutory Interpretation
  • Start with statute (Immig. Natu. Act)
  • Regulations: Title 8 C.F.R. and Title 22 C.F.R. §§ 40-46.—changing this is hard—agencies are bound by own regulations
  • DHS policy manual—the "Operation Instructions" (O.I.)—more changeable, more used day-to-day
  • Dept. of State—Volume 9 of the Foreign Affairs Manual (F.A.M.)
Plain-Meaning Rule
  • The ordinary and plain language of the statute will be followed even if the gov’t agency charged with its interpretation has previously applied it in a contrary manner
  • Part of the reason for a rule of interpretation which relies on a very straight-forward reading is that of separation of powers
  • The legislative body is best suited to statutory drafting
    • The court doesn’t write laws, they interpret them and apply them in a narrow way
  • Under the plain-meaning rule as applied in Phinpathya is that the legislature and not the courts are responsible for correcting drafting errors in a statute
Gonzalez (of Elian Gonzalez fame)
  • Unless a statute's language is unambiguous, a statute will not be interpreted as divesting a court of all jurisdiction to review agency action.
  • It is assumed that Congress will not inadvertently deprive a person of all avenues of review if agency action.
  • Particularly in cases involving gov’tal agency action the court will look to whether Congress has spoken directly on the question?
    • "Agency" action usually implicated delegated authority by Congress to a part of the executive branch
  • Where there has been a delegation of authority
  • Silence on a particular question will be treated as an expectation that gap filling will be done by the agency.
  • In which case, the reviewing court may not impose its own construction.
  • Mead should be viewed as a refinement of Chevron
  • Chevron deference will only extend to agency action that amounts to formalized rule-making or adjudication
    • It does not extend to the less formal rules or policies which make up agency action.
  • Non-retroactivity
  • Finality
  • Constitutional considerations
    • Bills of attainder
    • Due process
    • Takings clause
    • Ex post facto prohibition
  • Of paramount concern is the notion that laws are designed to create a sense of order and understanding of the rules to be applied in a given situation
  • Therefore statutes will not be applied retroactively unless the statute clearly calls for that interpretation
St. Cyr
  • Retroactivity of statutes as applied to immigration law
  • Congress may enact laws which are retroactive but only within proscribed areas
  • While the enactment in question was not a criminal statute, it did attach an immigration consequence to a criminal conviction
  • Retroactivity will only be applied where it is absolutely clear on the fact of the statute
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