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The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo calls on courts to apply a broad range of rules of statutory construction instead of engaging in a deferential inquiry about whether an agency’s views are reasonable. Courts of appeals face the question how to apply their new interpretative responsibilities in the absence of Chevron deference. This Essay argues that courts of appeals must now apply the long- standing rule of strict construction of deportation statutes, also known as the immigration rule of lenity, which provides that ambiguities in deportation statutes be resolved to limit the sanction of deportation. This Essay shows that the Court developed the rule of strict construction of deportation statutes as a substantive check against the harsh consequences of deportation statutes. It further shows that the Court treated it as a strong substantive rule that applied to ambiguous statutes, even in situations where the agency’s position found support in its contemporaneous interpretation of the statute. By 1966, the Solicitor General as well as majority and dissenting Justices treated the rule as settled, leaving only the question whether a particular statutory provision contained an ambiguity sufficient to trigger the rule in the case before the Court. This established rule of strict construction is supported by the same justifications as the criminal rule of lenity and is further supported by unique aspects of deportation statutes, which typically have no statute of limitations and may apply retroactively. While much remains to be seen about how courts will apply their interpretive powers in the wake of Loper Bright, the rule of strict construction of deportation statutes has the pedigree of a strong substantive rule that ought to be considered fully in determining the scope of deportation laws.

Well before the Supreme Court’s decision in Loper Bright, the Solicitor General laid the groundwork for treating the outcome of the case as irrelevant for immigration law. In recent cases, the Solicitor General has argued that 8 U.S.C. § 1103(a)(1) provides a freestanding basis for deference by the judiciary due to a phrase that the Attorney General’s views are “controlling.” This Essay shows that the Solicitor General’s argument is deeply flawed. Building on textual critiques, this Essay shows that for one hundred years Congress has considered how to manage multiple executive departments administering immigration laws. From 1924 until 1952, Congress did not preclude intrabranch disagreements, and in at least one case such disagreements were presented to the Supreme Court. In 1952, Congress acted to have the executive speak with one voice and placed that power with the Attorney General in § 1103(a)(1). Until recently, the Solicitor General recognized that § 1103(a)(1) was nothing more than a method for resolving intrabranch conflicts. The Solicitor General’s new effort to turn § 1103(a)(1) into a separate basis for judicial deference to agency views has no basis in the text or history of the provision. The Solicitor General’s argument should be abandoned before it leads to a new wave of circuit conflicts about deference in immigration cases in the wake of the Supreme Court’s decision this Term overturning Chevron.

Karina Solano is the deportation defense coordinator at Organized Communities Against Deportations. Antonio Gutierrez is an undocumented queer non-binary anti-displacement organizer in Chicago, IL. ...

Should pro-immigrant advocates pursue federally funded counsel for all immigrants facing deportation? For most pro-immigrant advocates and scholars, the answer is self-evident: More lawyers for immigrants would mean more justice for immigrants, and thus, the federal government should fund such lawyers. Moreover, the argument goes, federally funded counsel for immigrants would improve due process and fairness, as well as make immigration enforcement more efficient. This Article argues the opposite: Federally funded counsel is the wrong goal. The majority of expulsions of immigrants now happen outside immigration courts—and thus are impervious to immigration lawyering. Even for those who make it before an immigration judge, factors including geography, random judicial assignment, and the limited forms of deportation relief mean that most people represented by immigration lawyers are still ultimately deported. Gideon v. Wainwright’s guarantee of counsel in the criminal realm co-existed for nearly sixty years with the development of mass incarceration. Likewise, expanding federally funded counsel for immigrants could coexist with a vastly expanded deportation infrastructure without contradiction. In fact, federally funded counsel would provide cover for continued deportations, and the restrictions that would likely come with such funding would make it harder for attorneys to challenge the growth of the mass deportation regime effectively. Instead of investing in a strategy that risks normalizing expanded enforcement, pro-immigrant advocates and scholars must choose battles that aim at dismantling immigration enforcement. This means putting aside efforts that seek to add lawyers as one more mandated player in immigration court.

Under pressure to turn away noncitizens who fabricate religious affiliation to improve their chances of gaining asylum, immigration judges are known to ask asylum seekers doctrinal questions about their purported religions to assess their overall credibility. Immigration judges administer these “religious tests” with broad statutory authority to make credibility determinations and without meaningful review by the Board of Immigration Appeals or the federal Courts of Appeals. Although “religious tests” are currently allowed in immigration court, they are strictly forbidden in federal court because of an Establishment Clause principle called the “religious question doctrine,” which forbids government tribunals from weighing in on intrafaith doctrinal disputes or holding claimants’ beliefs and practices to judicial standards of orthodoxy. This Note highlights the difference in how religious tests are treated in these two adjudicative contexts and argues that for both constitutional and institutional reasons—that is, because of the Establishment Clause’s mandates and the government’s incompetence in adjudicating intimate issues of personal identity—appellate courts should forbid religious testing in asylum proceedings just as they do in federal courtrooms. To the extent that the government has a legitimate interest in preventing so-called “religious imposters” from gaining asylum, immigration judges can further that interest by gauging the sincerity and not the orthodoxy of applicants’ beliefs, just as federal judges do.

In Matter of Thomas & Thompson, former Attorney General William Barr argued that states have no role to play in immigration matters and thus, state adjustments to a criminal sentence post-conviction will not be given effect for adjudicating deportability based on criminal grounds under section 101(a)(48)(B) of the Immigration and Nationality Act without an underlying substantive or procedural flaw in the original criminal case. The former Attorney General incorrectly assumed that states cannot be involved in immigration decisionmaking. Not only is it constitutionally permissible for the federal government to delegate certain immigration powers to the states, but the immigration code does so in many places. Careful examination of the text and legislative history of section 101(a)(48)(B) reveals that whatever sentence the state deems operative counts for immigration purposes—even if state law considers the operative sentence a later adjustment—implying that Matter of Thomas & Thompson put forth an erroneous interpretation.

Line-level immigration officers have virtually unreviewable discretion to deny noncitizens the ability to enter the United States. This power extends not only to those who enter without inspection or arrive with counterfeit documents, but also to those who travel to the United States with the U.S. government’s express permission—i.e., visa holders. These noncitizens can unwittingly be caught up in the expedited removal process, which affords only minimal procedural safeguards and heavily circumscribes judicial review of officers’ actions. This Note argues that, despite these limitations, federal habeas courts should take advantage of their ability under the statute to inquire into whether an expedited removal order in fact was issued. In particular, courts should insist upon compliance with critical procedures required by the agency’s own regulations, without which an expedited removal order may be said not to exist at all. Informed by fundamental principles of administrative law, such an insistence on procedural compliance could help correct some of the worst abuses of the system notwithstanding the lack of constitutional due process protections for arriving noncitizens.

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the exclusion of immigrants from the political community because this exclusion compromises representational equality.

In this piece, I examine the political branding of Asian immigrants by comparing the rhetoric used in the political platforms of the Democratic and Republican parties from 1876 to 1924 to the language deployed in U.S. Supreme Court opinions during the same time period. The negative verbiage repeated at national political conventions branded the Chinese as a threat to labor, immoral, unassimilable, diseased, and invaders. Interestingly, the Republican authors of their political platforms were multiracial, and yet they produced rhetoric as harshly anti-Asian as their Democratic counterparts, who included ex-Confederate soldiers and even KKK members. And disappointingly, the Supreme Court picked up this derogatory language found in both parties’ political platforms and continued to echo it in cases that diminished the rights of Chinese and other Asian immigrants. This history is then linked to the present day through the example of the negative impact of politicians’ calling the contemporary COVID-19 pandemic “Kung Flu.”

Although many scholars have recognized the need for increased procedural protections for immigrants in removal proceedings, very little attention has been paid to the process afforded to immigrants applying affirmatively to acquire lawful status. However, due to the collection of important interests implicated by affirmative immigration proceedings, procedure still matters even if deportation is not immediately at stake. This Note helps to fill the scholarly gap by discussing a relatively recent phenomenon in affirmative immigration practice: U.S. Citizenship and Immigration Services’ requests for and reliance on police reports, arrest records, and other documents underlying any contact an applicant has had with the criminal justice system, even when the charges were ultimately dropped or the applicant was acquitted. This practice is particularly problematic in light of the unreliability of these documents, the role they play in the adjudication of applications, and the difficulty applicants face in appealing unfavorable decisions. Thus, this Note argues that not only is USCIS’s policy unlawful under the Administrative Procedure Act, but it also violates the guarantee of Due Process provided by the Fifth Amendment of the Constitution.