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Abstract

Recent developments in the composition of the Supreme Court have fueled academic and journalistic speculation about the future of one of the foundational cases in modern administrative law, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Thirty-five years ago, Chevron established the current legal foundation for judicial deference to agency interpretations of ambiguous statutory language. This Article contains an empirical study of the manner in which courts of appeals have applied Chevron in one specific area of administrative law: immigration law.

Immigration law provides a unique case study because it implicates a number of legal and constitutional considerations related to national security, foreign relations, civil rights, international human rights, and criminal law. In contrast to other areas of administrative law, the jurisprudential underpinnings of the modern deference regime--expertise, political accountability, and delegation--apply with varying force within immigration law, depending on the particular nature of the statutory interpretation at issue, and with inconsistent results. Despite these variables, or perhaps because of them, the judiciary has developed inconsistent practices in its application of Chevron in immigration cases.

This Article presents an empirical study of 473 instances of statutory interpretation where federal circuit courts considered the application of Chevron deference in immigration cases during an eleven-year period from 2003 to 2013. The study considers the factors and elements within immigration cases that produce distinct results in the courts' precedent.

This study finds that three categories of variables shape the manner and frequency with which courts of appeals apply Chevron. First, the nature of *180 the immigration case may lead to strikingly different rates of application and agency success. Of the categories of immigration cases studied by this paper, courts apply Chevron at starkly lower rates when the legal issue concerns the government's authority to detain the noncitizen or the immigration consequences of criminal convictions (“crimmigration”). In contrast, courts apply Chevron at rates consistent with other areas of administrative law in cases where a noncitizen has affirmatively initiated the litigation or is in removal proceedings regardless of the relief sought. Second, the formality of the agency's underlying interpretation also affects the frequency with which courts apply Chevron. This variable, however, does not appear to influence the court differently in immigration cases than it does in administrative law cases, generally. Finally, geography matters when considering court's willingness or hesitation in applying Chevron in immigration cases. There exists significant disparities in circuits' application of Chevron in immigration cases. These findings illustrate invisible trends in the appellate courts' jurisprudence and informs ongoing debates about Chevron's role in immigration cases, as well as in administrative law.

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