Note | Immigration Law
Time to Go Auer Separate Ways: Why the BIA Should Not Say What the Law is
by Tatum P. Rosenfeld*
From Vol. 94, No. 5 (2021)
94 S. Cal. L. Rev. 1279 (2021)
Keywords: Board of Immigration Appeals (“BIA”), Auer
Neither fully legislative nor fully judicial, federal administrative agencies are tasked with “policing the minutiae.”1 They codify and enforce the details of the regulatory scheme set out by Congress.2 Simply put, administrative agencies administer the law. Agency regulations, however, like other legal sources, can be ambiguous.3 Thus, interpretation is inevitably necessary either to confront a novel circumstance or to resolve an inherent semantic ambiguity. This then raises the question: Who should be called upon to resolve such ambiguities? The Supreme Court’s solution is to put agencies in charge. Auer deference says an agency’s interpretation of its own rule controls so long as it is not “plainly erroneous or inconsistent with the regulation.”4 In effect, after an agency promulgates a regulation, it then maintains the latitude to fill in the gaps by interpreting its own regulation.
The Court has offered no good reason why Auer, while reasonable in some situations, should be applied indiscriminately to all agencies. A multitude of federal agencies exist to effectuate policies touching on everything under the sun—including housing, education, social benefits, food, agriculture, commerce, health, and the environment—but there is one agency in particular whose special attributes suggest that it should not be treated the same as all the others. That is the agency in charge of immigration appeals. One might reasonably think deference, for example, to the Food and Drug Administration’s expert interpretation of what constitutes an “active moiety,” promotes a robust and efficient government necessary for modern complexities. It follows that such agencies deserve deference from a court that is less well versed in the expertise involved in rendering such a judgment. However, immigration presents an entirely different set of policy concerns.
This is because deference to the Board of Immigration Appeals (“BIA”) under Auer risks political manipulation at the expense of immigrants’ liberty and freedom. Nested under the Department of Justice (“DOJ”), and more specifically the Executive Office of Immigration Review (“EOIR”), the BIA and lower immigration courts operate as quasi-judicial bodies, specifically “prone to political manipulation because of their unique combination of structure, history, and function.”5 A “clarifing” interpretation by the BIA can dictate the scheme by which people are welcomed into or rejected from the United States. The BIA is the unsuspecting gatekeeper, capable of molding the rules by interpretation to advance an anti-immigrant political agenda. Auer, therefore, acts as another tool in the political toolbox to restrict immigration in what is already a labyrinth of proceedings, paperwork, and fear.
This Note argues that Auer deference, even in light of the Supreme Court’s recent clarification of the doctrine, is an inappropriate approach for courts to take when they review the BIA’s rulings. Because the BIA lacks political accountability while simultaneously commingling government powers, deference to the BIA undermines key constitutional principles, such as separation of powers and democracy. Such principles must be enhanced, rather than undermined, more than ever when there is a heightened threat to
liberty. Therefore, a close look is needed to determine whether Auer deference is warranted for an agency in which the very freedoms of immigrants are at stake. The problem actually goes even further. Even if federal courts decided to eschew deference to BIA interpretations, the courts’ own interpretations would still not be an adequate mechanism to protect immigrants from unjust results. With ever-growing caseloads, Article III judges are not equipped with the requisite resources, time, and experience with immigration laws to adjudicate thousands more life-altering decisions in a timely, just manner.6 Immigration matters deserve to be adjudicated with proper accountability and more formalistic separations of power than those that currently stand. To achieve this, immigration courts and the BIA should, as many others have suggested before, be reformulated as Article I legislative courts to best serve democratic and separation of powers purposes. Liberty for immigrants can be salvaged through fairer adjudications and independent interpretations that are more insulated from political manipulation and the polarized ideologies that waft in and out of power.
* Executive Development Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A., 2017, University of Michigan, Communications and Minor in Law, Justice & Social Change. I am so deeply grateful for my family and their unending support, especially my dad for always being my sounding board and biggest cheerleader. I want to thank Professor Rebecca L. Brown for her invaluable guidance and inspiring perspective in drafting this Note. And, thank you to the talented Southern California Law Review staff and editors for their thoughtful work throughout this publication process.
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