Tag Archive for: Loper Bright

Cyrus Mehta & Kaitlyn Box*

Although the Fifth Circuit has Justified Detention Without Bond for Noncitizens who Entered Without Inspection, Courts Outside the Fifth Circuit Are Not Bound and Can Use Independent Judgment Under Loper Bright 

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By Cyrus D. Mehta and Kaitlyn Box*

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. We have discussed Loper Bright at length in prior blogs (here, here, here  and here). 

Thus far, Loper Bright’s influence on federal courts’ handling of immigration cases has been relatively subtle under the Immigration and Nationality Act (INA) but it has proved a powerful tool for challenging the Board of Immigration Appeal (BIA)’s reinterpretation of INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A),  and INA 236(a), 8 U.S.C. 1226(a) to hold that noncitizens who entered without inspection (EWI) are not eligible for bond. On September 5, 2025, the BIA held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), that a noncitizen respondent who entered the US without inspection and was placed in removal proceedings is not eligible for bond under INA 235(b)(2)(A). This BIA decision was a marked reversal of policy, as bond had been permitted for noncitizens who entered without inspection for three decades, since the passage of the Immigration Act of 1996. The decision also disregarded INA 236(a), which provides for the release on bond of a noncitizen who is not ineligible under the categories prescribed in INA 236(c), which notably excludes respondents who have entered without inspection. Addressing this discrepancy, the BIA stated that “nothing in the statutory text of section 236(c), including the text of the amendments made by the Laken Riley Act, purports to alter or undermine the provisions of section 235(b)(2)(A) of the INA, 8 U.S.C. § 1225(b)(2)(A), requiring that aliens who fall within the definition of the statute ‘shall be detained for a proceeding under section 240’”. 

Aware that a federal court would not give deference to its interpretation of the ambiguity posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), the BIA invoked Loper Bright to conclude that the language under INA 235(b)(2)(A) is clear and explicit without regard to the contradiction posed in neighboring INA 236(c), stating: “the statutory text of the INA is not ‘doubtful and ambiguous’ but is instead clear and explicit in requiring mandatory detention of all aliens who are applicants for admission, without regard to how many years the alien has been residing in the United States without lawful status. See INA § 235(b)(1), (2), 8 U.S.C. § 1225(b)(1), (2).”

However, a string of recent district court rulings have relied on Loper Bright to reject the theory that noncitizens who entered without inspection are ineligible for bond as set out in Matter of Yajure Hurtado. These decisions invoke Loper Bright to emphasize that judges must independently interpret INA §§ 235 and 236, rather than automatically deferring to the BIA’s interpretation, and arguing that EWIs are eligible for § 236(a) detention and, thus, bond hearings. The courts reasoned that DHS’s new policy departs from three decades of consistent practice and lacks clear statutory grounding, thereby maintaining bond eligibility for these individuals. See, for example, Barco Mercado v. Francis, Guerreno Orellana v. Moniz, and Pizarro Reys v. ICE.

In Buenrostro-Mendez v. Bondi (5th Cir. 2026) the Fifth Circuit  agreed with Yajure Hurtado, holding that noncitizens who entered without inspection are ineligible for bond. The court addressed the statutory discrepancy by stating that “Section 1226(a) undeniably does work independent from § 1225(b)(2)(A) because only § 1226(a) applies to admitted aliens who overstay their visas, become deportable on many different grounds, or were admitted erroneously due to fraud or some other error… Not only does § 1226(c) sweep in deportable aliens in addition to the inadmissible aliens covered by § 1225(b)(2)(A)…it also eliminates the option of parole for those to whom it applies.” In a dissenting opinion, Justice Douglas found that “Combining the ordinary meaning of ‘seeking’ with the statutory definition of ‘admission,’ there is no need to resort to strained analogies with the college admissions process to determine the meaning of key statutory terms governing detention.”

Nonetheless, most district courts outside the Fifth Circuit have not been persuaded and continue to rule in favor of releasing the citizen using their own independent interpretation of the INA under Loper Bright. District court cases that have cited Buenrostro to date have primarily done so to point out that the Fifth Circuit’s holding is an outlier and nonbinding. See, for example,  Aroca v. Mason, Pascual Jose-de-Jose v. Noem,  Carlos Roldan Chang v. Noem. In a New Jersey district court case, Judge Padin wrote in her opinion that the court was “unpersuaded” by the Fifth Circuit’s decision in Buenrostro, reasoning that “the majority’s interpretation risks rendering substantial portions of the statutory scheme superfluous and internally inconsistent”. The Seventh Circuit preliminarily concluded that the U.S. Department of Homeland Security was not likely to prevail on its argument that “§ 1225(b)(2)(A) covers any noncitizen who is unlawfully already in the United States as well as those who present themselves at its borders,” Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025).   Only a handful of district courts have adopted the reasoning laid out by the Fifth Circuit in Buenrostro. See e.g.  D.M.R.D. v. Andrews and Zhuang v. Bondi.  Even the Fifth Circuit’s decision in Buenrostro-Mendez also does not preclude release based on constitutional grounds. In Buenrostro-Mendez, the Fifth Circuit did not consider whether a noncitizen detained under 8 U.S.C. § 1225 may be constitutionally entitled to a bond hearing at the outset of proceedings, or even to release on constitutional grounds. It also leaves intact habeas corpus as a key mechanism for challenging unlawful prolonged detention.

The BIA in Yajure Hurtado invoked Loper Bright to conclude that the language under INA 235(b)(2)(A) is clear and explicit to justify the detention of a noncitizen who entered without inspection without bond. Paradoxically, the majority of courts who have also invoked Loper Bright have done so to justify that they need not pay deference to the BIA’s interpretation of INA 235(b)(2)(A) in Yajure Hurtado. An administrative agency like the BIA cannot use Loper Bright to insulate itself from a court’s independent review of the statute. Only a federal court can invoke Loper Bright to justify why it is not deferring to the agency’s erroneous interpretation of a statute. To date, there have been hundreds of federal court decisions that have not paid deference to Yajure Hurtado and are also not deferring to the Fifth Circuit decision in  Buenrostro-Mendez v. Bondi. 

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

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? Some Bright Spots Emerge

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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. 

However, there are bright spots too. In a recent district court decision, a district court invoked Loper Bright to overturn the denial of an employment-based first preference extraordinary ability case. Courts have also not paid deference to the Board of Immigration Appeal’s reinterpretation of INA 235(2)(A) and INA 236 holding that noncitizens who entered without inspection (EWI) are not eligible for bond.

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 (11th Cir. 2026),  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  instead 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. Bondi (4th Cir. 2025), 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 Fourth 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 under 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 (4th Cir. 2025) 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 its finding that a theft offense is a crime involving moral turpitude. 

Similarly, in Lopez v. Garland  (9th Cir. 2024) 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), the Second Circuit  in Penaranda Arevalo v. Bondi (2d Cir. 2025) addressed Loper Bright but held that Loper Bright did not change its existing precedent in Banegas Gomez v. Barr (2d Cir. 2019), 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. 

Exceptional and Extremely Unusual Hardship

In Moctezuma–Reyes v. Garland  (6th Cir. 2024), 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 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 USC 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), and 

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 discussed 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 a non-deferential review.

In Diaz-Arellano v. U.S. Att’y Gen (11th Cir. 2025),  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  Loper Bright “formally overruled Chevron deference.” 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 (2d 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 Second 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.

Bright Spots

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 (9th Cir. 2010) 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.

Disregarding the Yajure Hurtado Decision in Detention without Bond Cases

On September 5, 2025, the BIA held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), that a noncitizen respondent who entered the US without inspection and was placed in removal proceedings is not eligible for bond under INA 235(b)(2)(A) despite allowing bond since the passage of the Immigration Act of 1996.

After almost three decades, the BIA found that the language in INA 235(b)(2)(A) is clear, but completely disregarded INA 236(a), which provides for the release on bond of a noncitizen who is not ineligible under the categories prescribed in INA 236(c), which do not make reference to respondents who have entered without inspection. The BIA addressed this discrepancy but stating that “nothing in the statutory text of section 236(c), including the text of the amendments made by the Laken Riley Act, purports to alter or undermine the provisions of section 235(b)(2)(A) of the INA, 8 U.S.C. § 1225(b)(2)(A), requiring that aliens who fall within the definition of the statute ‘shall be detained for a proceeding under section 240’”.

The BIA knew that a federal court would not give deference to its interpretation of the ambiguity posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), and so preemptively invoked Loper Bright to conclude that the language under INA 235(b)(1)(2) is clear and explicit without regard to the contradiction posed in neighboring INA 236(c).  The BIA in Yajure Hurtado invoked Loper Bright, stating: “the statutory text of the INA is not ‘doubtful and ambiguous’ but is instead clear and explicit in requiring mandatory detention of all aliens who are applicants for admission, without regard to how many years the alien has been residing in the United States without lawful status. See INA § 235(b)(1), (2), 8 U.S.C. § 1225(b)(1), (2).”

Recent district court decisions have all used Loper Bright to challenge or disregard Matter of Yajure Hurtado’s “no bond for EWIs” theory. These courts rely on Loper Bright to insist on independent judicial interpretation of §§ 1225 and 1226, with no automatic deference to the BIA’s reading. They use  Loper Bright’s endorsement of longstanding government practice as an interpretive aid to favor § 236(a) detention—and thus bond hearings—for EWIs arrested inside the country. They conclude that DHS’s new no‑bond position conflicts with 30 years of practice and lacks statutory support, thereby preserving bond eligibility for these EWIs. See e.g. Barco Mercado v. Francis, Guerreno Orellana v. Moniz; Pizarro Reys v. ICE.

The Fifth Circuit very recently in Buenrostro-Mendez v. Bondi (5th Cir. 2026) agreed with Yajure Hurtado although district courts outside the Fifth Circuit have not been persuaded and continue to rule in favor of releasing the citizen using their own independent interpretation of the INA under Loper Bright. Even in the Fifth Circuit Buenrostro-Mendez also does not preclude release based on constitutional grounds.

(Last updated on 2/16/2026)

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.