Document Type

Article

Publication Date

7-5-2018

Abstract

United States immigration courts that decide asylum cases are situated within the Justice Department – a law enforcement agency deeply invested in enforcing border control – and are subordinate to the Attorney General, the nation’s politically appointed chief law enforcement officer. This institutional subjugation of immigration judges and the Board of Immigration Appeals challenges the system’s integrity and leaves people seeking protection promised by international treaty to the whims of an enforcement agency. Courts exacerbate the problem when they give Chevron deference to those Justice Department decisions rather than reviewing them rigorously. Given the prosecutorial nature of the Justice Department, the obligatory and international nature of the legal duty to protect asylum seekers, and the vulnerable population at risk, courts should reconsider the appropriateness of giving deference to the prosecuting agency on asylum decisions and standards. This would be in keeping with developing Chevron jurisprudence, in which the Supreme Court has shown increasing willingness, in Step-Zero-style analysis, to ask whether Congress truly intended for courts to extend deference to a specific agency on a specific statutory question, and with case law declining deference to prosecutors.

This article will apply contemporary Chevron doctrine to the question of deference in asylum and withholding of removal cases arising under the Refugee Convention. It will conclude that Congress likely intended for courts not to defer to, but rather to exercise robust review of the BIA and the Attorney General, to ensure full enforcement of all immigration law – including asylum provisions that protect persecuted individuals.

Publication Citation

Administrative Law Review (forthcoming).

Disciplines

Administrative Law | Human Rights Law | Immigration Law | Law

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