Tag Archive for: Loper Bright

Cyrus Mehta

How the Major Questions Doctrine Can Undo some of Trump’s  Policies, Including On Birthright Citizenship

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By Cyrus D Mehta and Kaitlyn Box*

Introduced by the Supreme Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022), the major questions doctrine holds that, “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”. Until now, the doctrine has largely been used by the conservative-majority Supreme Court to thwart Biden-era policies, but a recent New York Times op ed by Aaron Tang highlights the doctrine’s potential to be a tool in challenging Trump’s actions, including those relating to immigration. 

Lawsuits have been filed challenging Trump’s  tariffs questioning whether there is clear authorization as they present a matter of vast economic and political significance. Like his tariffs, Trump’s efforts to freeze federal funding, interfere with the states’ administration of their elections and slash the government using the Department of Government Efficiency “DOGE”) are all areas of major national significant that Congress has not authorized the president to decide, the lawsuits claim.

Even if the immigration arena, lawsuit’s invoking the major  questions doctrine challenging Trump’s modification of birthright citizenship question whether federal law has granted the president authority to revoke birthright citizenship. 

In a previous blog we examined the role of the major questions doctrine in the immigration context in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”) and Texas v. DHS. The dissent in Washtech indicated that the issue of whether DHS’ 2016 Optional Practical Rule for students in F-1 visa status exceeds its statutory authority was a “major question”, and finding that the doctrine applied, directed the district court upon remand to examine whether DHS had the authority to issue OPT regulations under this principle. The major questions doctrine arose again in Save Jobs USA v. DHS, which involved a challenge to the regulation providing work authorization to some H-4 spouses.  There, the D.C. Circuit was not compelled by an argument that Washtech  should be disregarded because it did not address the major questions doctrine, holding that because Washtech had already interpreted the relevant regulations after West Virginia v. EPA, it remained good law. The court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement the DACA program. 

Trump may  be hoisted by his own petard through the major questions doctrine in a birthright citizenship case. Santa Clara County California, in a lawsuit aimed at blocking the implementation of the Trump administration’s executive order restricting birthright citizenship, invoked the major questions doctrine. On page 17 of its brief, Santa Clara County states: 

Even if Section 301(a) could be construed to leave any ambiguity about the meaning of the phrase “subject to the jurisdiction thereof,” there is no basis for any argument that in 1952 Congress intended that such an ambiguity serve as a delegation of broad authority to the President to define the parameters of a statute, let alone a constitutional right. It is difficult to imagine any question of greater “economic and political significance” than the scope of a provision that describes what group of people constitutes the American polity and may participate in its sovereignty. See, e.g., West Virginia v. EPA, 597 U.S. 697, 721 (2022) (statutory ambiguities should not lightly be construed to delegate decision making authority on major questions of economic or political importance). Given these stakes, it is untenable to read the INA as granting the President the authority to resolve or disturb the statutory meaning.

As Tang points out, the major questions doctrine was developed by the Supreme Court at a time when Chevron required the court to give broad discretion to agency decisions. As our previous blog discusses, courts may have now have more latitude to strike down agency actions since the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned Chevron and instructed courts to “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the Administrative Procedure Act  requires”. 

The major questions doctrine can now serve as yet a further tool for courts to employ in resisting the Trump administration’s efforts to make sweeping and destructive changes to immigration law and policy through executive power. Another example is the Trump administration’s broad interpretation of the Alien Enemy Act beyond an armed conflict, to include migration and drug smuggling as an “invasion”, thus triggering sweeping executive removal power. Would the courts consider whether a matter of such “vast … political significance” ought to be decided by the executive branch absent clearer instruction from Congress under the major questions doctrine? 

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

After Chevron’s Demise, Should Courts Be Giving Deference to the Trump Administration’s  Foreign Policy Considerations When Deporting a Noncitizen?

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By Cyrus D. Mehta and Kaitlyn Box*

The Department of State has revoked the visas of hundreds of  students in recent weeks. This disturbing measure comes after the Trump administration has taken numerous actions targeting students involved in pro-Palestine protests for immigration enforcement actions in recent weeks, including the arrest of student activist Mahmoud Khalil, who is a lawful permanent resident, as well as the arrest of a researcher at Tufts University  in F-1 status, Rumeysa Ozturk,  who has been targeted for deportation for merely writing an op-ed in the student newspaper that was critical of Tufts and Israel.

We have discussed in detail the arrest and detention of Columbia University student activist Mahmoud Khalil. The Notice to Appear (NTA) issued to Khalil invokes INA 237(a)(4)(C)(i), which provides for the deportation of a noncitizen if the Secretary of State has determined that their presence or activities would have adverse policy consequences. Pursuant to 212(a)(3)(C)(iii), the government bears the burden of proving “by clear, unequivocal, and convincing evidence that the Secretary of State has made a facially reasonable and bona fide determination that an alien’s presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States” in order to establish that a noncitizen is deportable under this provision. INA 237(a)(4)(C)(i) has also been invoked in many of the notices allegedly rescinding the status of F-1 students in the SEVIS system. 

Although the government can charge a noncitizen on other grounds including under INA 237(a)(1)(B) based on the revocation of the underlying nonimmigrant visa in the passport, a lawful permanent resident who has otherwise not been convicted of a crime, supported terrorism or made misrepresentations in their green card process can only be charged under INA 237(a)(4)(C)(i), which is so broad that it can be used against just about any noncitizen  whose views may be disfavored by the government and thus have serious adverse foreign policy consequences for the United States. A revised NTA charged Khalil under INA 237(a)(4)(C)(i) and for making material omissions in his green card application under INA 237(a)(1)(A). 

A letter from Secretary of State Marco Rubio asserting that Khalil’s presence in the United States would have seriously adverse consequences on U.S. foreign policy has not yet been made public or provided to the chairmen of the Judiciary and Foreign Affairs Committees of the House and to the Judiciary and Foreign Relations Committee of the Senate as required by INA 212(a)(3)(C)(iv). Even at the recent hearing in immigration court, the government has not yet provided government has not any evidence to support the charge under INA 237(a)(4)(C)(i).  Even if a letter from Secretary Rubio is issued and the immigration court rubber stamps the Secretary’s letter, the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo could mean that it will be afforded less deference if the case is appealed to a court of appeals. 

A 1999 Board of Immigration Appeals (BIA) case, Matter of Ruiz-Massieu, held that a determination letter from the Secretary of State “conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination” is sufficient to meet this high standard. Ruiz-Massieu, however, involved a Mexican official who entered the US as a visitor and was apprehended a day after he arrived based on accusations of corruption. The BIA’s holding in this case is thus readily distinguishable from that of Khalil, who is a lawful permanent resident and engaged in constitutionally protected speech. 

Moreover, Loper Bright abolished the longstanding Chevron doctrine, which required courts 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 clarified that cases decided under the Chevron framework were not automatically overruled. In the absence of Chevron, courts tend to apply the lower Skidmore standard, which asserts that the level of deference an agency’s decision merits depends on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U. S. 134 (1944).

Given the demise of Chevron, a respondent like Khalil will have more room to argue that the BIA’s decision in Ruiz-Massieu is not only distinguishable from his own case, as the government is not entitled to the same deference that it had under Chevron. The BIA’s determination in Ruiz-Massieu that a determination from the Secretary of State that a noncitizen’s presence in the U.S. would have adverse foreign policy consequences is, alone, sufficient to meet the “clear and convincing” standard may not be sufficiently well reasoned even to survive a Skidmore analysis. Under Skidmore, factors like the thoroughness of the agency’s analysis and the validity of its reasoning influence the degree of discretion that is warranted. In her dissent in Ruiz-Massieu, Board Member Lory Rosenberg argued that the statutory language of old INA 241(a)(4)(C) is “not clear, and it does not resolve the question…regarding the effect of the letter submitted by the Secretary of State.” Rosenberg pointed to the Congressional Record of the 1990 amendment that created this provision as evidence that Congress’ intent as the amount of discretion  that should be afforded to the Secretary is unclear as it was not “fully debated nor clearly understood in practical terms…” These inconsistencies in the BIA’s interpretation could result in deference not being afforded even under a Skidmore standard. 

In Moctezuma-Reyes v. Garland, 124 F.4th 416 (6th Cir. 2024), the Sixth Circuit addressed the question of how much deference should be afforded to the BIA’s interpretation of “exceptional and extremely unusual hardship” at INA  240A(b)(1)(D) post-Chevron. The court laid out a two part test for determining whether an agency’s interpretation should still be given deference after Loper Bright. First, the statute in question must contain “broad, flexible standards like ‘appropriate’ and ‘reasonable’”, and it must “pair that language with words that expressly empower the agency to exercise judgment”. The Sixth Circuit in Moctezuma -Reyes v. Garland held that the BIA’s interpretation of § INA  240A(b)(1)(D) does not warrant deference because it “contains no such language vesting the BIA with discretion to determine the meaning of ‘exceptional and extremely unusual hardship’”. 

INA 237(a)(4)(C)(ii) contains a freedom of speech and association safe harbor incorporated by reference to the inadmissibility provisions at INA 212(a)(3)(C)(iii) prohibiting deportation “because of the alien’s past, current, or expected beliefs, statements or associations, if such beliefs, statements, or associations would be lawful”.  In order to invoke an exception for the safe harbor protection, the Secretary of State must “personally determine[e] that the alien’s presence would compromise a compelling US foreign policy interest.” Although the language of this provision is quite broad, and permits the Secretary of State the authority to make a “personal determination”, the language of INA § 240A(b)(1)(D) is similarly expansive, yet the Sixth Circuit held that it did not afford the BIA sufficient discretion. Under the Moctezuma -Reyes v. Garland test, it is thus possible that the Secretary of State’s determination would be afforded less discretion in the post-Chevron era.  

We have also addressed in the prior blog that there is a strong basis to constitutionally attack INA 237(a)(4)(C)(i) on grounds that it violates a person’s First Amendment rights, is void for vagueness and represents an impermissible delegation of legislative power to the executive. We also believe that under Loper Bright a court should not rubber stamp a letter without more from the Secretary of State to the immigration court that a noncitizen’s presence would compromise a compelling US foreign policy interest.  

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

How Corner Post Along with the Demise of Chevron Deference  Can Open Up Immigration Regulations to Challenges

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On February 20, 2024,  the Supreme Court  heard oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. This case could potentially expand the six year statute of limitations to challenge a regulation under the Administrative Procedure Act (APA).   § 702 of the APA provides that “]a] person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action” may seek judicial review. § 2401(a) of the United States Code generally requires that the complaint to commence such an action must be “filed within six-years after the right of action accrues.”

 In Corner Post, the plaintiffs asserted that the six year statute of limitations under the APA first begins to accrue when the plaintiff has suffered a “legal wrong” or been “adversely affected or aggrieved” rather from when the agency issues a rule. The Board of Governors of the Federal Reserve issued Regulation II in 2011, which capped the interchange fees paid on debit-card transactions.  The North Dakota Retail Association and others challenged this regulation under the APA. The Board moved to dismiss arguing that the statute of limitations had run out.  They added Corner Post, which was incorporated in 2017 and began operating in 2018. The Board again moved to dismiss, and the district court granted the motion holding that the statute of limitations under Section 702 began running when Regulation II was published in 2011. The Eight Circuit affirmed rejecting the argument that the six year statute of limitations began running only when Corner Post opened in 2018. Corner Post sought review by the Supreme Court.

If plaintiffs prevail, Corner Post would open the door to many challenges to government regulations  even beyond the six year date from when they were issued. Moreover, on January 17, 2024,   the Supreme Court also heard oral argument on January 17, 2024 in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo whether to eliminate or restrict the deference that courts give to an agency’s interpretation of an ambiguous statute under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). This is known as Chevron deference, which has insulated the government from challenges to its interpretation of a statutory provision.

 One can see how the evisceration of Chevron deference in Loper Bright and Relentless,  along with Corner Post relaxing the six year deadline for APA challenges,  can result in challenges to immigration regulations even though they were promulgated more than six years ago. For instance, in  Wash Tech v. DHS the F-1 Optional Practical Training (OPT) and STEM OPT rule promulgate in 2016 were both upheld by the First Circuit under Chevron deference. If Corner Post broadens the six year limitation to challenge a rule, and if Chevron deference is eliminated, plaintiffs who claim they were aggrieved because they may have lost their job to an F-1 nonimmigrant under the OPT rule, can again try to challenge the rule even though more than 6 years have passed.

As background, the Washington Alliance of Technology Workers (Wash Tech) challenged the Optional Practical Training (OPT) and the STEM Optional Practical Training (OPT). DHS allows eligible students in STEM fields an additional 24 month OPT extension beyond the usual 12 month OPT period. The 2016 Rule restarted the clock to challenge the statutory authority for the OPT program as a whole along with the new, STEM-specific extension.

Wash Tech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Wash Tech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court affirmed a district court judgment that upheld DHS’ current OPT rules. The court reasoned that the STEM OPT extension is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has been authorized even prior to the enactment of the INA in 1952.  In previous blogs, we have discussed Congressional authority for OPT at length, see here, here, here, and here.

In addition, the court paid deference under Chevron  to the agency’s interpretation of 101(a)(15)(F)(i)  by asserting that “OPT’s nexus to an F-1 student’s course of study, together with the student’s application to the school for approval and the school’s reporting responsibilities to DHS, ensure that the additional time and practical training opportunities available through the program help F-1 students to cement the knowledge acquired in their coursework consistent with legal limits.”

If  the Supreme Court in Loper Bright and Relentless eliminate Chevron deference, and if Corner Post broadens the six year statute of limitations, a different  plaintiff can again challenge the OPT rule all over again. The rule may most likely withstand attack because it is not entirely based on Chevron deference as it was also upheld under Lorillard v. Pons. So even if Chevron deference is eliminated, under  the doctrine established in Lorillard it can be presumed that Congress was aware of the government’s interpretation of F-1 status as encompassing practical training each time it has amended the INA. It can also be argued that the DC Circuit’s reliance on Chevron was either an alternate holding or dicta. The following extract from the decision indicates that the DC Circuit relied on the plain meaning of INA 214(a)(1); 8 USC 1184(a)(1) rather than paying Chevron deference to the DHS’s interpretation of those provisions:

The 2016 Rule is within DHS’s statutory authority. Section 1184(a)(1)’s time-and-conditions provision is the source of that authority, and the F-1 visa class definition guides its use. Because the 2016 Rule regulates the “time” and “conditions” of admission for F-1 visa-holders, and because it is reasonably related to the distinct composition and purpose of that visa class, as defined in the F-1 provision, the Secretary had authority to promulgate it.

50 F.4th at 177.

The most straightforward reading of the INA is that it authorizes DHS to apply to admitted F-1 students the additional “time” and “conditions” that enable them to remain here while participating in OPT recommended and overseen by their respective academic institutions. But at a minimum, even if it is ambiguous on the point, the statute may reasonably be understood as the Department has read it in support of the 2016 OPT Rule. That interpretation thus merits our deference. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

 

Id. at 192.

At oral argument in Corner Post the justices questioned what impact it may have if parties were allowed to bring facial challenges more than six years after a final agency action. Justice Jackson asked whether this could risk destabilizing industry and noted that “we have settled rules that govern all sorts of industries, the healthcare industry, the finance industry, and people have adjusted themselves around them.” It appears that  the justices know that Chevron deference is on the chopping block, and perhaps there is already a draft opinion circulating among them suggesting that Chevron deference may be no more. In an exchange with counsel for Corner Post, Justice Jackson raised the potential impact of the rulings in Corner Post, Relentless, and Loper Bright.  Justice Elena Kagan also raised the risk of retroactive impacts scrambling long-established law.   If plaintiffs prevail in Corner Post, it would open up challenges to well settled immigration rules such as the F-1 OPT and STEM OPT rule, as well as the H-4 employment authorization rule,  which  can destabilize and upend the lives of real people rather than just industries.

While we have addressed how the F-1 OPT rule might be vulnerable, it may be possible for noncitizen plaintiffs to attack other rules more than six years after they were issued. For instance, 8 CFR  245.1(d)(2)(i) implements the technical exception under INA 245(c)(2), which precludes one to file an I-485 application for adjustment of status who has failed to maintain lawful status  “other than through no fault of his own or for technical reasons.” 8 CFR 245.1(d)(2)(i) provides a very narrow reading of the exception under INA 245(c)(2) by only allowing one whose status was jeopardized due to inaction by the government or by an organization or individual authorized to act on behalf of he individual such as a designated student officer in a school.  The Ninth Circuit in Peters v. Barr recently held that the regulation should cover situations where the applicant fell out of status due to ineffective assistance of counsel but did not invalidate the regulation.  Although the rule was promulgated in 1989, Corner Post could allow one who got injured through the denial of an I-485 application to challenge the rule even today, and the elimination of Chevron deference may allow a court to hold that the regulation does not faithfully interpret the exception in INA 245(c) without regard to whether the government’s interpretation of the statute is reasonable or not. One caveat is that the plaintiff may have to get over the jurisdictional bar as set forth in Patel v. Garland when seeking judicial review of a denied I-485 application.

Corner Post along with the elimination of Chevron deference can open up other possibilities. It may be possible for a plaintiff to challenge the regulation implementing the foreign labor certification program at 20 CFR 656. Under INA §212(a)(5), an alien is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient workers who are able, willing, qualified…and available at the time of application” among the U.S. workforce. A plain reading of INA §212(a)(5) does not in any way suggest that an employer must seek to recruit U.S. workers in order for the Secretary of Labor to certify that there is a lack of U.S. workers who are qualified and willing at the time of the application. Although the PERM rule was promulgated in 2005, Corner Post can extend the 6 year limitation if an employer was subject to injury in the last six years. Moreover, if Chevron has been eliminated a court may not give deference to the DOL’s interpretation of INA § 212(a)(5) as set forth in 20 CFR 656, which requires onerous recruitment steps including two Sunday print ads and  which requires employers to justify supposedly restrictive requirements through business necessity among many other burdens that have no bearing with an employer’s real world recruitment practices.

There will  be  both winners and losers in a post Chevron world if the plaintiffs are victorious in Corner Post, Loper Bright and Relentless.