Justices’ New Agency Review Rules May Test Immigration Policies

The U.S. Supreme Court’s June 26 decision that courts should defer to agency interpretations of their own regulations in limited circumstances could serve as a boon to immigration attorneys, advocates, and businesses litigating over Trump administration immigration policies.

The majority decision in Kisor v. Wilkie gives “ample ammunition” to those challenging immigration decisions and is “very positive” despite refusing to do away with the underlying deference precedent, said Jeremy McKinney, second vice president of the American Immigration Lawyers Association.

That could prove pivotal in upcoming months, as immigration attorneys as well as the AILA itself gear up to file scores of administrative lawsuits targeting administration policies and decision making in individual visa cases.

“Kisor appears to leave room for advocates to persuade courts that an agency simply got it wrong and should not receive any deference in certain circumstances,” said Thomas Ragland of Clark Hill in Washington. “That’s a good thing. A challenger just has his/her work cut out to make the case against deference.”

Restatement of Law

The decision doesn’t really change the legal landscape, said David Rubenstein, a professor at Washburn University School of Law in Topeka, Kan. Rather, it serves to “crystallize” what the justices have been saying about how to treat these interpretations all along, he said.

Like Ragland, Rubenstein said there’s still likely to be more focus now on whether the regulations are ambiguous and deference even applies. “Getting the court to agree that the regulation is even ambiguous might be a bigger hurdle than it was in the past,” he said.

Representatives for the Justice Department and U.S. Citizenship and Immigration Services declined to comment.

But under the review standard the courts have in place, “the agencies tasked with implementing immigration law are emboldened to do whatever they want,” said John Miano, a New Jersey attorney with the Immigration Reform Law Institute.

Miano is representing U.S. workers in two cases challenging the Homeland Security Department’s authority to implement optional practical training—which allows student visa holders to work after graduation—and a program providing work permits to the spouses of H-1B guestworkers who are waiting for their green cards to become available.

Under the Administrative Procedure Act, the courts are supposed to make sure federal agencies are acting in line with the authority Congress delegated to them, Miano said.

“Sadly, this system has completely broken down because the agencies test the bounds of what their authority is and the Courts have let the agencies run amok,” he said in an email.

More Litigation Coming

Litigation was the overarching theme of AILA’s 2019 annual conference in Orlando, Fla., a week before the Kisor decision.

Being lawyers “gives us a very powerful tool” against the administration’s immigration policies: “We can take them to court,” AILA President Marketa Lindt said during her installation speech. “Many of the administration’s signature policies have crumbled when they’ve been challenged in court,” said Lindt, who practices with Sidley Austin in Chicago.

For example, federal courts have blocked the administration’s attempt to end immigration protections under the Deferred Action for Childhood Arrivals and temporary protected status programs.

A federal judge in North Carolina also blocked a U.S. Citizenship and Immigration Services policy that would have changed the way international students are penalized for violating the terms of their visas.

Deference ‘in Name Alone’

In Kisor, a 5-4 majority of the court upheld Auer deference, also known as Seminole Rock deference, both terms a nod to the Supreme Court decisions that established the concept. Under the doctrine, courts are supposed to credit an agency’s interpretation of its own regulations if those regulations are ambiguous, even if there’s more than one reasonable interpretation.

But the decision scaled back the instances when courts should rely on an agency interpretation in the first place.

The court “left Auer deference in place in name alone,” said McKinney, who practices with McKinney Immigration Law in Greensboro, N.C. For someone challenging an agency immigration decision, “there’s bound to be something in that majority opinion that you can latch onto” to justify not crediting the agency’s argument, he said.

McKinney mentioned a 2018 attorney general decision that removes asylum protections for domestic violence victims. The decision was “such a departure from the last three administrations,” one of the factors the Kisor majority said to examine when considering whether an agency should receive deference, he said.

Employment Different

Businesses receiving denials of employment-based visa applications also say they’re seeing new interpretations of the visa standards.

But in many cases, Auer deference isn’t applicable because the agency isn’t relying on a regulation, said Jonathan Wasden of Economic Immigration Support Services in Reston, Va.

“We argue pretty successfully, and the government concedes most of the time,” that a different standard applies, which gives even less deference to an agency decision, said Wasden, who also serves as counsel for litigation with the Houston-based firm Reddy & Neumann.

In the H-1B specialty occupation visa context, for instance, the USCIS essentially is disregarding its own regulations and saying that its decision is relying on the agency’s interpretation of the Immigration and Nationality Act, he said. “That’s something they’re not allowed to do.”

Auer deference might get “a little more traction” when it comes to denials of permanent employment-based visas, but litigation in that area hasn’t gotten off the ground yet, Wasden said.