United States: Require Agencies To Apply The Rule Of Lenity To All Actions

Co-author by David J. Bier

Seyfarth Synopsis: This is the final installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in "Deregulating Legal Immigration: A Blueprint for Agency Action." Read the first, second, third, and fourth installments here. In total, five installments have been published.

President Biden Should Require Immigration Agencies to Apply the Rule of Lenity to All Decisions

Immigration law is commonly referred to as "second only to the Internal Revenue Code in complexity."¹ It is a convoluted morass of vague and poorly defined terms, making life-altering decisions hang on the meaning of unfamiliar and ambiguous terms like "moral turpitude" or subjective analyses about an applicant's "credibility."² In the removal context, courts have dealt with this phenomenon by "construing any lingering ambiguities in deportation statutes in favor of the alien."³ The Supreme Court has stated, "since the stakes are considerable for the individual, we will not assume that Congress means to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used."⁴ This interpretative method is referred to as "strict construction" or "the rule of lenity."⁵

While courts have only applied this rule to statutes governing removal and immigration crimes, the stakes are just as considerable in the adjudication of various immigration benefits -denials of which can themselves trigger removals or prevent travel to and residence in the United States, causing permanent separation of Americans from their spouses, children, and parents and career-ending decisions requiring departure from the United States. Since adverse adjudications of petitions and applications requesting immigration benefits routinely render a denied beneficiary "out of status" and thus removable, the rule of lenity should be interpreted by executive order and extended to other immigration statutes and regulations, which, if enforced against particular noncitizens, would similarly lead to their deportation or "exile."

The president should require all agencies involved in the interpretation or application of immigration statutes and regulations to adopt the rule of lenity for all rulemakings, decisions, and adjudications. The president has the inherent authority under the Constitution to require agencies to follow certain procedures before acting in order to preserve and protect the rule of law. Prior presidents have used this authority on numerous occasions.⁶ In ordering the application of lenity, the president should recognize past, largely unsuccessful efforts to encourage evenhanded and fair adjudications.⁷ Thus, there can be no substitute for executive branch oversight and internal agency supervisory review if lenity is to be applied consistently.⁸

Ordering that leniency of interpretation and application be applied by federal immigration authorities to their adjudications in favor of petitioners and applicants requesting immigration benefits would promote the rule of law and protect the rights of immigrants and Americans.

Footnotes

1. Castro-O'Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1988).

2. Sessions v. Dimaya 584 U.S. ___ (2018).

3. INS v. St. Cyr, 533 U.S. 289 (2001).

4. Fong Haw Tan v. Phelan 333 U.S. 6 (1948); and Yamataya v. Fisher, 189 U.S. 86, 101 (1903).

5. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) refers to the "longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien." Similarly, see INS v. Errico, 385 U.S. 214 (1966); Costello v. INS, 376 U.S. 120 (1964); and Fong Haw Tan v. Phelan 333 U.S. 6 (1948). See also, William T. Gillis, An Unstable Equilibrium: Evaluating the "Third Way" Between Chevron Deference and the Rule of Lenity, 12 N.Y.U. J.L. & Liberty 352 (2019); and Brian Slocum, "The Immigration Rule of Lenity and Chevron Deference," Georgetown Immigration Law Review 17 (2003): 515.

6. For examples, see Executive Order 13892, October 9, 2019; Executive Order 13891, October 9, 2019; and Executive Order 12866, September 30, 1993.

7. Legacy Immigration and Naturalization Service asserted a "zero tolerance policy" on failure to abide by INS policy and field instructions in 2002 but never backed violations with real consequences and backed away from it in 2003. James W. Ziglar, "Memorandum for All Regional Directors and All District Directors-Subject: Zero Tolerance Policy," Immigration and Naturalization Service, March 22, 2002; and Remarks of Director Aguirre, "CIS Town Hall Prepared Remarks," September 8, 2003.

8. The current skeptical or adversarial attitude toward immigration applicants has not always prevailed. In 1980, one senior immigration official offered the view that agency "clientele are honest, hard-working people, not interested in fraud or obtaining any benefit for which they cannot qualify." Durward Powell, "Memorandum to District Director and Officers in Charge Southern Region-Subject: Dispensing Information and Adjudications Decision Making," SR 79/3-C, April 21, 1980, https://www.ilw.com/articles/2004,0224-memor.pdf.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.