Tag Archive for: Mukherjee v. Miller

Cyrus Mehta

Federal Court Relies on Loper Bright to Overturn EB-1 Denial Based on the Final Merits Determination

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In Mukherji v. Miller, a district court in Nebraska recently set aside the denial of a petition of extraordinary ability on the ground  that the “final merits” determination was unlawful. 

Although the petitioner satisfied five out of the ten criteria for establishing extraordinary under 8 CFR 204.5(h)(3), when only three were needed to be satisfied, the USCIS denied the extraordinary ability petition because the petitioner failed to establish the “high level of expertise required for the E11 immigrant classification through the “final merits determination.” 

As background, an individual can obtain permanent residence in the U.S. under EB-1 by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Olympic Gold Medal). If the applicant is not the recipient of such an award, then documentation of any three of the following is sufficient:

  • Receipt of lesser nationally or internationally recognized prizes or awards.
  • Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  • Published material about the person in professional or major trade publications or other major media.
  • Participation as a judge of the work of others.
  • Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

See 8 C.F.R. § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

The Plaintiff in Mukherjee v. Miller contended that this “final merits” determination is not found in the statute or regulation and is taken from the Ninth Circuit’s decision in Kazarian v. USICS, which the USCIS adopted as a nation-wide policy on December 2, 2020. The Court held that the USCIS did not properly create the two step process. Indeed, the USICS unlawfully adopted the final merits determination without notice and comment rulemaking. The final merits determination had the force of law, and the USCIS ought to have ordinarily abided by the notice and comment procedures prescribed by the Administrative Procedure Act, 7 U.S.C. § 553(b). 

In addition, the agency acted arbitrarily and capriciously for failing to acknowledge and reason that it was changing its policy. Pursuant to Encino Motorcars LLC v. Navarro, agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.  Encino Motorcars requires that the agency must display awareness that it is changing its position and that there are good reasons for the new policy. This did not happen with the final merits determination. 

Perhaps the most significant part of the decision is that the court acknowledged  Loper Bright Enterprises v. Raimundo, wherein the Supreme Court in 2024 diminished the validity of deference to an agency’s interpretation of a statute under Chevron.  With the very limited deference after Loper Bright, all questions of law will be determined by the  Court. The validity of the final merits determination is clearly a question of law, not fact. Accordingly the Court found that the two-tier analysis was not valid at its inception.  

Mukherjee v. Miller did not go against Kazarian in its entirety, it only found that the final merits determination was unlawful. In my prior blog entitled The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications under the Employment-Based First Preference I wrote that when Kazarian was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian had been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary.  

Now Mukherjee v. Miller has relied on Loper Bright to hold that the final merits determination was unlawful although many courts have adopted it.   Even the Fifth Circuit in Amin v. Mayorkas     adopted the final merits determination, based upon which it upheld the denial of Mr. Amin’s extraordinary ability petition even though he met three of the ten criteria. The Fifth Circuit held that the USCIS did not violate the APA by not adopting a formal rule as the final merits determination was an interpretive rather than a legislative rule and do it did not need to go through notice and comment. The Fifth Circuit issued Amin v. Mayorkas in 2022 before the Supreme Court brought about the demise of Chevron deference.  

The Court in Mukherjee v. Miller while reviewing the merits of the USICS’s decision held that it was an arbitrary and capricious decision. The reviewing officer hailed to articulate the required standard and the failure to meet the standard by the plaintiff. It appeared that the plaintiff did not meet the final merits because she failed to indefinitely stay at the top of her field. The Court held that “[I]t is clear that the Plaintiff in this case was at the top of her field. No one argues that is not accurate. The Agency based its decision on whether she continuously received awards recognizing her status or kept up with that level of production. The Court finds nothing in the statutory scheme that would support such a finding.”  

It remains to be seen whether other courts will also be nudged by Loper Bright to disregard the USCIS’s final merits determination. In Scripps College v. Jaddou, a case decided just prior to Loper Bright, the Court did not discard the final merits analysis but still overturned the USCIS by holding that USCIS cannot and should not, under the cover of the second step final merits determination, be allowed to introduce new requirements outside the parameters of the regulatory criteria or reverse its prior acceptance of evidence under the regulatory criteria. Prior to Mukherjee v. Miller, most courts have clung onto the final merits determination even when reversing the USCIS denial (as in Scripps College), but now future courts have Loper Bright on their side to not pay deference to the final merits determination while  still relying on Kazarian to shoot down the circular argument, which is  that one does not need to submit extraordinary evidence under one of the ten criteria to establish extraordinary ability.  

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Cyrus Mehta

No Dramatic Changes in Immigration Cases after Loper Bright? A Bright Spot Emerges 

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In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine.  Under this doctrine, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for the majority, stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires”, but made clear that prior cases decided under the Chevron framework are not automatically overruled.

Loper Bright is already reshaping how federal courts handle immigration cases under the INA, but the change is more incremental and nuanced than revolutionary so far. Courts are repeating Loper Bright’s core rule that courts must exercise independent judgment on statutory meaning and may not defer to the BIA or DHS simply because the statute is ambiguous. At the same time, courts are  invoking Loper Bright’s statutory stare decisis language to preserve pre-2024 Chevron-era immigration precedents, rather than discarding them wholesale. Courts are also using their own independent judgment by analyzing the INA provision but are reaching the same outcome. 

In a recent district court decision, the court invoked Loper Bright to overturn the denial of an employment-based first preference extraordinary ability case.

Below is a summary of  selected cases regarding how courts  are using Loper Bright in immigration-related decisions: 

Ineffective Assistance Counsel under Matter of Lozada

In an Eleventh Circuit case on ineffective assistance in removal proceedings,  Gutierrez-Mikan v. Attorney General,  the petitioner argued that Loper Bright undermined Matter of Lozada and circuit precedent enforcing Lozada-style requirements such as filing a bar complaint against the prior attorney against whom ineffective assistance was alleged.  The court rejected that argument and  explained that Loper Bright stops “unthinking” Chevron deference to agency interpretations of ambiguous statutes, but Lozada did not rest on a statutory interpretation of the INA; it was an exercise of the BIA’s authority to regulate practice before the immigration courts, which the circuit had already adopted as binding precedent.

 

The Court reasoned that Lozada did not interpret an unambiguous provision under the INA but was part of the Board’s broad discretion in considering motions to reopen deportation orders

The Court then expressly invoked Loper Bright’s stare decisis passage in a footnote:

Loper Bright “did ‘not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful … are still subject to statutory stare decisis despite  change in interpretive methodology.’”

“Mere reliance on Chevron cannot constitute a special justification for overruling such a holding… That is not enough to justify overruling a statutory precedent.”

In ineffective-assistance litigation, Loper Bright is not being treated as a ticket to unwind established Lozada-based requirements. Courts are using Loper Bright to reaffirm that Chevron is dead going forward, but Chevron-era INA precedents still bind under statutory stare decisis. In Gutierrez-Mikan the Court also noted that Loper Bright was not applicable as Lozada was not interpreting an ambiguous statutory provision.

Crime involving moral turpitude  

In Solis-Flores v. Garland/Bondi (4th Cir. 2023, reaffirmed 2025), the U.S. Court of Appeals for the Fourth Circuit held that a Virginia conviction for receipt of stolen property (VA Code § 18.2-108) is a crime involving moral turpitude (CIMT). The court determined that knowingly possessing stolen goods with dishonest intent is inherently base and constitutes a CIMT. 

Even after the Supreme Court’s 2024 ruling in Loper Bright eliminating Chevron deference, the 4th Circuit found that the statute, which requires knowledge that the property was stolen, aligns with their established, independent definition of a CIMT. The Court reconsidered the question without Chevron deference and again independently concluded that the prior conviction (receipt of stolen property) was a CIMT, reaching the same result as pre-Loper Bright. It expressly stated that Loper Bright “changes the analysis but does not alter the result.”

Even where the Supreme Court has told circuits to reconsider immigration rulings “in light of” Loper Bright, courts often reaffirm the same outcomes using their own interpretation of the INA, rather than deferring to the BIA.

In another Fourth Circuit case, Chavez v. Bondi, the petitioner Chavez  contended that petit  larceny  under a Virginia penal provision isn’t  a  CIMT because it doesn’t require a   sufficiently culpable mental state and doesn’t involve reprehensible conduct.  

The Fourth Circuit explicitly reconciled  Loper Bright with  immigration case law developed by the BIA such as in Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016) and gave deference to it finding that a theft offense is a crime involving moral turpitude. 

Similarly, in Lopez v. Garland  the  Ninth Circuit considered whether the BIA’s holding in Matter of Diaz-Lizarraga “constitutes a CIMT if it includes an intent to deprive either permanently or under circumstances where the owner’s property rights are substantially eroded” was entitled to deference. The Court gave Skidmore deference to BIA’s interpretation in Matter of Diaz-Lizarraga, finding it “thorough and well-reasoned”, and consistent with judicial precedent. 

 

Jurisdiction and defective Notice to Appears

In the defective NTA litigation (omission of time/place), a Second Circuit decision in Penaranda Arevalo v. Bondi addressed a Loper Bright argument. The panel recited that in Loper Bright, the Supreme Court held that under the APA courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous,” overruling Chevron. But the court held that Loper Bright did not change its existing precedent in Banegas Gomez v. Barr, which had already concluded that NTA defects do not strip immigration court jurisdiction because “no ‘statutory glue bonds the Immigration Court’s jurisdiction to § 1229(a)’s requirements.”

The Court emphasized that its jurisdictional holding was its own reading of the statute, not Chevron deference, so Loper Bright did not disturb it. On issues like NTA defects, the Second Circuit is  explicitly saying their holdings do not rest on Chevron, so Loper Bright provides no basis to reopen those questions.

Exceptional and Extremely Unusual Hardship

In Moctezuma – Reyes v. Garland  the Sixth Circuit addressed the question of how much deference should be given to BIA’s interpretation of the meaning of “exceptional and extremely unusual hardship.”  Even in light of Loper Bright, the Court developed a two part test – courts can still defer to agency interpretations if the statute uses broad language and makes clear that “Congress expressly and explicitly delegated discretion to the agency”. 

The Court affirmed the BIA’s denial of cancellation of removal under this new standard as the petitioner did not meet the stringent “exceptional and extremely unusual hardship” standard under the two part test. 

The case is widely cited as one of the first major tests of how courts handle agency interpretations following the Supreme Court’s 2024 decision in Loper Bright.  Rather than automatically deferring to the BIA’s interpretation of “hardship,” the Sixth Circuit conducted its own statutory analysis. It concluded that while courts must now use their own judgment to interpret laws, they can still find agency interpretations “informative” and “persuasive” if they align with the statute’s text.

 

When Does a Child Stop Being a Child for Cancellation Hardship

Several federal courts have now cited Loper Bright in cases analyzing when a child “ages out” as a qualifying relative for cancellation of removal under INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D). The main issues are:

At what time the child must meet the INA § 101(b)(1) “under 21” definition (filing date, IJ merits hearing, or date of final decision).

How Loper Bright affects deference to the BIA decision in  Matter of Isidro-Zamorano, which that the  held that a qualifying child who turns 21 before the adjudication of her parent’s application for cancellation of removal does not remain a qualifying relative under the hardship requirement of § 1229b(b)(1)(D).

Whether Loper Bright allows courts to adopt a more noncitizen-favorable age-fixing rule (e.g., at application filing), especially where agency delay caused aging out.

In the decisions below, courts uniformly acknowledge that Chevron is gone, but most still adopt the “final decision” / continuing-application approach, either because the text is “unambiguous” or because the BIA’s reading remains the most persuasive under non-deferential review.

In Diaz-Arellano v. U.S. Att’y Gen., 120 F.4th 722 (11th Cir. 2024), the Eleventh Circuit addressed when a child must be under 21 to qualify for cancellation of removal under § 1229b(b)(1)(D). The Court noted that after briefing and argument, the Supreme Court in Loper Bright “formally overruled the Chevron deference regime.” It stated that, with Chevron “out of the picture,” the court must exercise its “independent judgment” when reviewing the BIA’s decision and “exercise that interpretive authority whether or not the governing statute is ambiguous.”

The panel then held that the text of § 1229b(b)(1)(D) unambiguously requires a qualifying relative at the time the immigration court finalizes its decision on the application. It explained that, if an applicant proceeds based on hardship to a child, “there must be a child—an unmarried person under the age of twenty-one—when the final decision on cancellation of removal is made.”

The Court explicitly cited Loper Bright to reject Chevron deference and to justify its own textual reading of § 1229b(b)(1)(D).

Despite that, it ended up in line with the BIA’s “continuing application” concept, effectively confirming that age is tested at the final IJ decision (or final agency decision), not at filing.

In Yupangui v. Bondi (3d Cir. 2025), the petitioner sought cancellation based on hardship to his U.S.-citizen daughter who turned 21 while his case was pending. He argued that the statute is ambiguous on “aging out” and that, under Loper Bright, no deference is owed to the BIA’s continuing-application reading. He urged the court to fix his daughter’s age as of the date he filed the cancellation application, or the date of the individual hearing, or the date when the hardship evidence was presented. The panel recognized that Loper Bright overruled the Chevron framework and that the petitioner was asking the court to choose a different, non-deferential interpretation of § 1229b(b)(1)(D).

The government argued that even without Chevron, the BIA’s reading remains the best interpretation: cancellation is a “continuing application,” so a qualifying child’s age is “properly considered at the time an application for cancellation of removal is decided,” citing Matter of Isidro-Zamorano.

The Third Circuit ultimately agreed that a qualifying child must still be under 21 when the application is finally decided. It found that by the time the BIA ruled on the motion to reopen, the daughter had aged out, so “there will be no exceptional hardship to a qualifying relative” going forward. The Court explicitly aligned itself with the Tenth and Eleventh Circuits as the “only other courts of appeals to have considered this issue since Loper Bright,” citing Rangel-Fuentes v. Bondi (10th Cir. 2025) and Diaz-Arellano.

Yupangui squarely addressed the hardship prong—the Court held that because the daughter is no longer a qualifying child at the time of the final decision, the “exceptional and extremely unusual hardship” element cannot be satisfied, regardless of earlier hardship.

In Perez-Perez v. Bondi (6th Cir. 2025), the Sixth Circuit addressed when to measure qualifying-child status under § 1229b(b)(1)(D. 

The BIA denied cancellation solely because the petitioner’s daughter turned 21 while the case was on appeal, i.e., before the BIA decision, and thus was no longer a qualifying child. The Court recognized that, after Loper Bright, it is “no longer obligated to defer to the BIA’s interpretation of the INA,” but also notes the general principle that issues not addressed by the BIA should be remanded. The Court held that the child’s age is determined when the Immigration Court finalizes the decision. The dissenting opinion held that the child’s age is fixed at the time of the  BIA decision rather then the IJ makes the decision.

Final Merits Determination in Extraordinary Ability Cases

In Anahita Mukherji v. Loren K. Miller, et al the district court in Nebraska, set aside the USCIS’s denial of an extraordinary ability petition under the person of extraordinary ability category pursuant to INA 203(b)(1)(A). The Court  found that the two tier system – where the person who meets three out of ten regulatory criteria under 8 CFR 204.5(h)(3) is also subject to a broad and amorphous “final merits” determination – not deserving of deference after Loper Bright.  This is indeed a bright spot  post Loper Bright. The USCIS had seized on the words “final merits determination” in Kazarian v. USCIS to create a two system without going through notice and comment or providing good reasons for the new policy. The Court held that all questions of law will be determined by the Court, and found that the two tier final merits analysis was not valid at its inception. The Court need not have relied on Loper Bright to reach this outcome as the final merits analysis could have been discarded for a number of other reasons,  but it got the nudge from Loper Bright.