ENFORCING/PROTECTION: THE DANGER OF CHEVRON IN REFUGEE ACT CASES

• 成果类型: Article
• 署名作者: Sweeney, Maureen A.
• 署名单位: University System of Maryland; University of Maryland College Park
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2019
• 页码: 127-192
• 关键词: statutory interpretation; immigration detention; judicial deference; agencies; COURTS

摘要

United States immigration courts that decide asylum cases are situated within the Justice Department (DOJ)-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 (BIA or Board) challenges the system's integriy and leaves people who are seeking protection promised by international treaty to the whims of a politically responsive enforcement agency. Courts exacerbate the problem when they give Chevron deference to 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 applies contemporary Chevron doctrine to the question of deference in asylum and withholding of removal cases arising under the Rqfugee Convention. It concludes that Congress likely intended for courts not to defer to, but rather to exercise robust review of the Board of Immigration Appeals and the Attorney General, to ensure full enforcement of all immigration law-including asylum provisions that protect individuals facing persecution.