Executive Deference in U.S. Refugee Law: Internationalist Paths through and beyond Chevron

By Farbenblum, Bassina | Duke Law Journal, February 2011 | Go to article overview

Executive Deference in U.S. Refugee Law: Internationalist Paths through and beyond Chevron


Farbenblum, Bassina, Duke Law Journal


ABSTRACT

When Congress amended U.S. immigration law via the Refugee Act of 1980, it did so with the explicit purpose of bringing U.S. asylum law into conformity with the nation's international refugee treaty obligations. Nevertheless, U.S. courts interpreting domestic asylum provisions routinely discount international legal norms, laboring under the mistaken perception that the Chevron doctrine requires deference to the executive agency's interpretation of asylum law regardless of its compatibility with international law. As a result, domestic asylum law has become jurisprudentially unmoored from international refugee law to the serious detriment of asylum seekers.

This Article argues that neither Chevron nor the policies underlying it compel the lockstep deference that courts afford the Board of Immigration Appeals' interpretation of U.S. asylum law. The Article charts two alternate paths by which courts may reject agency statutory interpretations that are inconsistent with international refugee law: a route through Chevron that navigates within existing Supreme Court jurisprudence, and a route beyond Chevron based on the limited applicability of this administrative law doctrine to the asylum-adjudication context. Addressing further impediments to the reconciliation of domestic and international law, the Article demonstrates that courts are indeed capable of applying a coherent interpretive methodology to determine the content of refugee treaty obligations, particularly if engaged by government lawyers committed to reestablishing the international legality of U.S. practice.

In seeking to remove a fundamental administrative law obstacle to the implementation of international refugee law, the Article lends impetus to broader scholarly efforts to align U.S. law with this nation's international human rights obligations. It also provides a framework that enables courts, immigration attorneys, and government policymakers to situate U.S. asylum law in the more rights-protective context that Congress intended.

TABLE OF CONTENTS

Introduction

I. Deference and Diversion: Straying from the International Law
     Framework
     A. The International and Domestic Refugee Law
        Framework
        1. The International Refugee Law Framework
        2. Congress Intended Congruence: Domestic
           Implementation of the Convention via the
           Refugee Act
        3. The Domestic Refugee Law Framework
        4. Treaty Interpretation Methodology Applicable to
           the Convention
     B. According Deference to BIA Interpretations
        Regardless of Inconsistency with the Convention
        1. The Chevron Doctrine
        2. Deference to Unmoored BIA Interpretations--The
           "Particularly Serious Crime" Example
II. Supreme Court Jurisprudence on Chevron and the
     Convention
     A. Cardoza-Fonseca: Defining a Path
     B. Aguirre-Aguirre: A Mixed Methodology Message
     C. Negusie: Orlando Ventura's "Ordinary Remand Rule"
        Obfuscates Cardoza-Fonseca's Chevron Step One
        Boundaries
III. Achieving Fidelity to Congressional Intent and U.S.
     International Obligations: A Path through Chevron
     A. Restoring Cardoza-Fonseca's Definition of Chevron
        Step One
     B. Chevron Step Two and Other Canons of Statutory
        Construction
IV. Beyond Chevron: Getting Past Reflexive Deference to the
     BIA's Interpretation of Refugee Provisions
     A. The Core Rationales Underpinning Deference
     B. Problems with the Political-Accountability Rationale
        and Separation-of-Powers Concerns
        1. Substantive Concerns
        2. Structural Concerns
     C. Problems with the Agency-Expertise Rationale
        1. Interpretation in a "Detailed and Reasoned
           Fashion".
        2. BIA's Expertise Relative to the Courts'.
        3. Interpretation of International Law
        4. Uniformity
V. Toward a More Internationally Engaged U. … 

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