Chevron Meets the Categorical Approach

By Grammel, Shannon M. | Stanford Law Review, March 2018 | Go to article overview

Chevron Meets the Categorical Approach


Grammel, Shannon M., Stanford Law Review


Table of Contents  Introduction I.   Doctrinal Background      A. Chevron Deference      B. The Categorical Approach         1. Some confusion at step one of the categorical approach         2. The preeminence of criminal law II.  Tension in the Aggravated Felony Context      A. Teasing Out the Tension      B. The Supreme Court's Treatment of the Tension      C. Lower Courts' Treatment of the Tension III. The Categorical Foreclosure of Chevron      A. The Supreme Court's Approach      B. A Proposed Explanation         1. Expertise and complexity         2. Text and context         3. Structure      C. A Better Path Forward Conclusion 

Introduction

This Note explores the clash of two interpretive titans: Chevron deference and the categorical approach. The familiar doctrine of Chevron deference directs courts to defer to reasonable agency interpretations of the statutes those agencies are charged with administering. (1) The categorical approach, meanwhile, is used to answer the question whether a prior conviction qualifies as one for a generic crime listed in a given statute (2)--for instance, whether a Virginia conviction for "grand larceny" (3) counts as "a theft offense" within the meaning of the Immigration and Nationality Act (INA). (4) That approach bars courts from looking to the actual facts surrounding the prior conviction and permits them to consider only the statute defining the crime of conviction. (5) Only if all the elements of that statute fit entirely within the definition of the generic offense does the prior conviction qualify. (6)

These two methodologies clash when a federal court of appeals is asked to review Board of Immigration Appeals (BIA) decisions that use the categorical approach in defining an "aggravated felony" listed in the INA. (7) The INA uses the term "aggravated felony" as the basis for various civil and criminal penalties. (8) The term is defined as a list of more than fifty crimes or categories of crimes. (9) The BIA may encounter the aggravated felony definition in a number of situations. A noncitizen may challenge a removal decision premised on a conviction for an aggravated felony. (10) Or she may challenge a denial of asylum premised on such a conviction. (11) Regardless of context, the BIA is required to employ the categorical approach when it interprets the aggravated felony definition. (12) On appeal, the BIA--charged with administering the INA (13)--would appear to be the textbook candidate for Chevron deference. (14) Indeed, the Supreme Court has explicitly instructed that Chevron applies when the BIA interprets our immigration laws. (15) The Court has even gone so far as to say that deference is "especially appropriate" when it comes to immigration law. (16) Denying the BIA deference in the aggravated felony context would appear to defy these instructions. (17)

Yet that is precisely what the Supreme Court is doing. The Court has not once granted Chevron deference to a BIA interpretation of the INA's aggravated felony definition. (18) In fact, it has never squarely engaged with the question whether principles of Chevron deference even apply in the aggravated felony context in the first place. Time and again, the government has asked the Court to defer to the BIA's explications of the provision. And time and again, the Court has declined with virtually no explanation. (19)

The exact opposite is true in the lower federal courts. Those courts overwhelmingly grant Chevron deference to the BIA's reasonable interpretations of the aggravated felony definition, just as they would with any other INA provision. (20) Despite the clear trend in the Supreme Court's treatment of aggravated felony cases, these lower courts nonetheless believe their approach is "mandated" by the Court's more general immigration precedent. (21) They view themselves and their choice to defer as faithful to the Court's broad "determin[ation] that the special deference rules of Chevron apply to BIA interpretations" of the INA writ large. …

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