Academic journal article Harvard Law Review

Immigration Law - Statutory Interpretation - Seventh Circuit Defers to Agency Interpretation of Evidentiary Standards

Academic journal article Harvard Law Review

Immigration Law - Statutory Interpretation - Seventh Circuit Defers to Agency Interpretation of Evidentiary Standards

Article excerpt


Although they lessen the uniformity of our national laws, (1) circuit splits abound across jurisdictional lines. So it is that an alien residing legally in Maine can live under a different immigration law than his counterpart in Kentucky. By freeing agencies from the stare decisis effects of judicial interpretations of ambiguous statutory language, National Cable & Telecommunications Ass'n v. Brand X Internet Services (2) presented a means of mitigating this structural dilemma. Under Brand X, courts must defer to reasonable agency interpretations of ambiguous statutes even over conflicting precedent. (3) Although Brand X offered agencies another tool with which to claim deference from courts, it did nothing to clarify the preexisting doctrinal confusion about when such deference would be granted. Over the last decade, cases such as United States v. Mead Corp. (4) and Barnhart v. Walton (5) have transformed the Court's doctrine around deference to agencies from a simple two-part test to a convoluted multi-factor analysis. (6) Under Brand X, even apparently settled law is subject to this muddle.

Recently, in Ali v. Mukasey, (7) the Seventh Circuit deferred to a statutory interpretation put forth by the Board of Immigration Appeals, holding that an immigration court could consider additional evidence beyond the charging papers and judgment of conviction in classifying a criminal offense as a "crime involving moral turpitude." (8) In doing so, the court overturned several conflicting Seventh Circuit precedents with the explanation that "administrative discretion belongs to the agency rather than to the court." (9) This stark assertion bears no relationship to the current state of the doctrine surrounding deference. The court's failure to engage that doctrine saps the persuasive power from its opinion. But given the state of the Supreme Court's case law, it seems unlikely that even a better reasoned opinion could achieve the effect that Brand X seemed to promise and Ali aimed to deliver.

In December 2000, (10) Ibrahim Ali was convicted of conspiracy "to commit an[] offense against the United States, or to defraud the United States" for selling firearms without a license. (11) As a permanent resident alien, Ali was subject to removal but eligible to apply for discretionary relief unless he had been convicted of a "crime involving moral turpitude." (12) An immigration judge, drawing factual details from the presentence report prepared after Ali's trial, ruled that he had been convicted of fraud, which was well established as a crime involving moral turpitude. (13) He declared Ali ineligible to seek adjustment of status and ordered him removed from the United States. (14)

Ali appealed to the Board of Immigration Appeals (BIA). In 2007, the Board affirmed that Ali's offense was a crime involving moral turpitude. (15) Relying upon "wording in the pre-sentence report," the Board found "sufficient evidence to demonstrate that the respondent's conspiracy involved fraud." (16) The BIA found Ali ineligible for a waiver of inadmissibility and dismissed the appeal. (17)

Ali then appealed to the Seventh Circuit, claiming that the BIA had referred to impermissible materials to determine that he had been convicted of fraud. After distinguishing Taylor v. United States (18) and Shepard v. United States, (19) two Supreme Court precedents which might be thought to control, (20) Chief Judge Easterbrook explained that "there are at least two distinct questions in immigration proceedings": "the fact of the prior conviction" and "the appropriate classification of that conviction." (21) The first has a close analogue in the criminal context, while the second does not: "'moral turpitude' just isn't relevant to the criminal prosecution; it is not as if 'turpitude' were an element of an offense. …

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