Think Immigration: Using Loper Bright to Advocate for Your Clients in Immigration Cases

This blog post is part of a multi-part series from members of the AILA Rule of Law (AROL) Task Force; for more information about AROL look to Chair Jerry Grzeca’s blog post which is a handy guide to its purpose, priorities, and work.

The Supreme Court’s June 2024 decision in Loper Bright Enterprises v. Raimondo abolished the Chevron doctrine, which for four decades required courts to defer to reasonable agency interpretations of ambiguous statutes. Chief Justice Roberts wrote that Chevron is overruled and that courts must independently decide whether an agency has acted within its statutory authority, as the Administrative Procedure Act requires. However, past decisions that relied on Chevron are not automatically invalidated.

For immigration, this means that government agencies including Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), Department of Labor (DOL), and the Board of Immigration Appeals (BIA) no longer receive automatic deference just because the Immigration and Nationality Act (INA) is ambiguous. Lawyers can now more directly challenge restrictive agency interpretations and press for more favorable readings of the statutes. The impact so far is significant but evolving, with courts using Loper Bright as both a tool to check agencies and, at times, as cover to entrench restrictive positions.

One recent positive example is Mukherjee v. Miller, a Nebraska district court case involving an EB 1 extraordinary ability petition under INA 203(b)(1)(A). USCIS uses a two-step approach: first, checking whether the petitioner meets at least three of ten regulatory criteria under 8 C.F.R. 204.5(h)(3); and second, applying a vague “final merits determination” to decide if the person is truly at the top of the field. This second layer was largely built out of language in Kazarian v. USCIS without proper rulemaking.

Post–Loper Bright, the Mukherjee court refused to defer to USCIS’s two-tier system. It held that questions of law are for courts to decide, found the final merits analysis invalid from the outset, and set aside USCIS’s denial. Although the court could have rejected the “final merits” framework on other grounds, Loper Bright clearly strengthened its willingness to refuse deference when USCIS stretches beyond statutory and regulatory text. This is an important example for challenging restrictive adjudicatory frameworks in business immigration.

On the enforcement and detention side, the BIA decision in Matter of Yajure Hurtado shows a more troubling use of Loper Bright. In that case, the BIA held that a person who entered the United States without inspection (EWI) and is in removal proceedings is not eligible for bond under INA 235(b)(2)(A). For nearly 30 years after the 1996 immigration reforms, such individuals were generally considered eligible for bond under INA 236(a), unless subject to mandatory detention under INA 236(c).

Yajure Hurtado reversed that longstanding practice. The BIA claimed that the language in INA 235(b)(2)(A) clearly requires mandatory detention for certain “applicants for admission,” and it brushed aside the tension with INA 236(a), which expressly authorizes release on bond for many noncitizens and does not exclude EWIs. The BIA asserted that nothing in 236(c) undermines 235(b)(2)(A) and declared the INA “clear and explicit” in mandating detention of all applicants for admission, regardless of how long they have lived in the United States.

In effect, the BIA invoked Loper Bright preemptively: if courts no longer defer to agencies in resolving ambiguity, the Board tried to remove ambiguity by simply labeling the text clear, even in the face of conflicting provisions and decades of contrary practice.

District courts, however, saw through the Board’s sleight of hand and have used Loper Bright against Yajure Hurtado. Relying on Loper Bright’s directive that courts, not agencies, interpret statutes, federal judges have independently analyzed 8 U.S.C. §§ 1225 and 1226 (INA 235 and 236). In cases such as Barco Mercado v. Francis, Guerreno Orellana v. Moniz; Pizarro Reys v. ICE courts emphasized the longstanding practice of granting bond hearings to EWIs arrested inside the country and found no clear statutory command to end that practice. They concluded that DHS’s new “no bond for EWIs” position conflicts with three decades of implementation and is not supported by the text, preserving bond eligibility under INA 236(a) for many EWIs.

The issue has now moved to the courts of appeals, with a split emerging. The Fifth Circuit in Buenrostro-Mendez v. Bondi and the Eighth Circuit in Avila v. Bondi sided with the BIA and held that EWIs are ineligible for bond, effectively treating them as subject to mandatory detention. The Seventh Circuit also weighed in Castanon-Nava v. DHS, issuing a fractured opinion in which one judge said the government's interpretation of Section 1225 is wrong, another declined to weigh in, and a third sided with the government.

By contrast, the Second Circuit in Cunah v. Freden rejected the government’s position and strongly criticized the administration’s theory that anyone who ever crossed the border unlawfully is perpetually “seeking admission” and thus indefinitely detainable. In Cunah, the Second Circuit leaned heavily on Loper Bright to emphasize that courts must independently interpret the INA and are not bound by the BIA’s restrictive reading in Yajure Hurtado. It found the government’s expansive interpretation inconsistent with the statutory structure and warned against an approach that would authorize near-indefinite detention of long-term residents.

Recently, the Eleventh Circuit in Alvarez v. Warden, Federal Detention Center Miami, has issued a decision siding with the Second Circuit’s approach, likewise rejecting the BIA’s no-bond theory for EWIs and confirming that Loper Bright requires independent judicial construction of the detention statutes rather than deference to Yajure Hurtado. “Simply put, the language that Congress has chosen to use does not grant to the Executive unfettered authority to detain, without the possibility of bond, every unadmitted alien present in the country,” according to the majority opinion. “Nowhere in the text, structure, or history of [federal immigration law] does that reading find steady footing.” Even more recently, the Sixth Circuit in Lopez-Campos v. Raycraft aligned itself with the Second and Eleventh Circuits, holding that the government’s longstanding practice of permitting bond for noncitizens who entered without inspection is a significant indicator of the statute’s meaning and can properly inform the court’s independent construction of the INA detention provisions after Loper Bright.

Loper Bright’s core instruction is straightforward: statutory meaning is for courts, not agencies, to decide. If it were not for Loper Bright, the circuit courts would have likely being paying deference to the Board’s decision in Yajure Hurtado and there would not be this split. For immigration practitioners, this changes how arguments should be framed. Instead of focusing on whether USCIS’s or the BIA’s interpretation is “reasonable,” arguments should start with statutory text and structure and show why the client’s interpretation is the best reading using ordinary tools of construction.

This has broad implications across asylum, enforcement, and benefits. In asylum cases, when new rules or decisions attempt to narrow “particular social group” or expand “particularly serious crime,” attorneys should resist conceding that the statute is ambiguous. Instead, they should argue that the government’s narrowing or expansion conflicts with what Congress actually wrote. In removal cases, attorneys must try to reverse Board interpretations regarding crimes involving moral turpitude, exceptional and extremely unusual hardship and defective notices to appear. In business and family immigration, Loper Bright potentially supports challenges to restrictive approaches to “specialty occupation,” “specialized knowledge,” public charge interpretations, “final merits determination,” and country-specific suspensions that rest more on policy preferences than on statutory text. These examples are not exhaustive, and Loper Bright provides a broad range for attorneys to challenge a wide spectrum of governmental interpretations of the INA.

At its core, Loper Bright is a separation-of-powers decision. It reaffirms that Congress writes the immigration laws and courts interpret them, while agencies must stay within those bounds. In a period when the executive branch may seek to weaponize the INA for more restrictive enforcement, this principle offers a crucial safeguard. For immigration lawyers, especially AILA members, the task now is to weave Loper Bright into everyday practice: treat statutory interpretation as a judicial function, revisit unreasonable interpretation entrenched during the Chevron era, use Loper Bright as a marker for future litigation even if responding to a request for evidence, and challenge restrictive policies that lack clear congressional authorization.

Loper Bright can help reorient immigration law toward closer adherence to statutory text and, indirectly, toward more humane outcomes, even in an era of renewed restriction.