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Recent Supreme Court ruling could have big impact on U.S. immigration policy, asylum cases

<b>People arrive before the start of a naturalization ceremony at the U.S. Citizenship and Immigration Services Miami Field Office in Miami, Aug. 17, 2018. (AP Photo/Wilfredo Lee)</b>
Associated Press
People arrive before the start of a naturalization ceremony at the U.S. Citizenship and Immigration Services Miami Field Office in Miami, Aug. 17, 2018. (AP Photo/Wilfredo Lee)

Though a major decision last week by the United States Supreme Court centered on regulatory policy and the intersection between environmental law and commerce, attorneys argue its effects on the complicated realm of immigration policy cannot be overstated.

In a 6-3 decision, the high court gutted what’s been known as the Chevron doctrine, originally established in the court’s 1984 Chevron v. Natural Resources Defense Council decision. It stated that, in instances where Congress passes laws that are somewhat ambiguous, courts should defer to an agency’s interpretation of a federal statute, provided the interpretation is reasonable. Over the last four decades, the ruling has been cited more than 18,000 times in court decisions, according to SCOTUSblog, an independent website that explains and analyzes cases before the Supreme Court.

An analysis of the ruling from the American Immigration Lawyers Association, the national trade group of industry attorneys, said the new ruling’s effects won’t be felt equally: The change could be beneficial to some immigrants on visa applications and for employers who rely on immigrant labor.

“Employers may also be able to find a court willing to give a more favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker,” the authors wrote. The H-1B visa is awarded to college educated, high-skilled workers who contribute “specialized knowledge” to an industry. The L visa allows businesses based outside the United States to transfer an employee to a U.S.-based branch or affiliate of the company if the person provides specialized knowledge or serves in a managerial role.

But Eduardo Beckett, an El Paso-based immigration attorney, said the high court’s decision will be a “double-edged sword” for attorneys trying to protect their clients from deportation. He said circuit court judges considering appealing a removal order will now be able to interpret statute more broadly, specifically as it relates to asylum cases.

To be granted asylum, an applicant must prove they have been persecuted or fear they will be based on one of five categories: Race, religion, nationality, membership in a particular social group, or political opinion. While race, religion and nationality are straightforward, the remaining categories could now be open to a broader interpretation.

“What's the definition of a social group? If you look at the statute, it's not really defined,” he said.

Beckett said that after last week’s ruling, once binding precedent from the Board of Immigration Appeals could be challenged in the future. The BIA is part of the Department of Justice’s Executive Office for Immigration Review, which calls BIA “the highest administrative body for interpreting and applying immigration laws.” It has national jurisdiction to hear appeals on decisions handed down by immigration judges or other Department of Homeland Security agencies.

“[The decision] is going to help, but now some decisions are going to go against the client,” he said.

 Beckett, whose client list includes several asylum seekers who have migrated from Latin America to Texas, knows the BIA process well.

He represents Emilio Gutierrez, a journalist who in 2009 fled northern Mexico with his then-teenaged son after receiving death threats for reporting on alleged atrocities committed by the Mexican military. Gutierrez finally won his asylum case earlier this year after being denied the benefit twice by an immigration judge.

In a decision the BIA rendered last year, it concluded that: “[Gutierrez’s] fear of persecution in Mexico based on his political opinion (actual and imputed) as well as his membership in the particular social group consisting of former Mexican reporters who criticized the Mexican military, is objectively reasonable.”

In its ruling the BIA didn’t cite the Chevron doctrine, but Beckett said the Supreme Court’s decision leaves open the door for the government to challenge similar rulings in the future if it disagrees with the BIA’s interpretation of what constitutes a political opinion or social group.

Still, attorneys at the American Immigration Lawyers Association see the court’s ruling as a potential benefit to immigrants fighting deportation. That’s because the BIA usually interpreted the doctrine in a way that led to more removals, which wasn’t the case with Gutierrez.

“There will be winners and losers, and some unintended consequences may occur in limiting previously afforded deference to immigration agency decision making,” the AILA attorneys wrote. “For example, in removal cases, Chevron deference previously hurt those seeking review of immigration judge or Board of Immigration Appeals decisions. Now, in a post-Chevron world, the BIA’s interpretation of ‘particular social group’ … may not be given the same deference as before.”

AILA president Kelli Stump added that the Supreme Court’s decision limits the power of the White House and federal agencies to make meaningful changes to the country’s immigration system.

“Valuable immigration benefits created by regulations may be threatened if not clearly based on statutory language,” Stump said. “We hope Congress takes the initiative to come together in a bipartisan fashion to legislate sensible solutions that make our immigration system reflective of our modern-day realities.”

In the meantime, Beckett said he’s preparing for more litigation moving forward.

“We already have chaos,” he said. “It’s going to create more.”

Copyright 2024 KERA

Julián Aguilar | The Texas Newsroom