CJW Note: Last week I posted some preliminary reactions to the Supreme Court’s immigration adjudication decision in Mellouli v. Lynch. Patrick Glen, senior litigation counsel with the Justice Department’s Office of Immigration Litigation, sent me the following response, which he graciously has allowed me to repost here. The standard disclaimer applies: The views and opinions expressed herein are the author’s own and do not represent those of the federal government or the Department of Justice. Here is Patrick’s response:

In his recent post on Mellouli v. Lynch , Chris Walker raises interesting questions about the Supreme Court’s application of Chevron deference to the Board of Immigration Appeals’ interpretation of 8 U.S.C. 1227(a)(2)(B)(i), which provides, in relevant part, that “[a]ny alien who at any time after admission has been convicted of a violation of … any law or regulation … relating to a controlled substance (as defined in section 802 of Title 21), … is deportable.” Mellouli was convicted of a drug paraphernalia offense under a Kansas state statute (yes, involving a sock and Adderall). Relying on precedent that held such paraphernalia offenses “relate to” a federally controlled substance, regardless of whether the substance involved was controlled under federal law (i.e., a substance “as defined in section 802”), the agency concluded that Mellouli was removable.

The Eighth Circuit deferred to the Board’s interpretation of this ground of removability, concluding that “relating to” was ambiguous and that the agency’s interpretation was reasonable. Not so the Supreme Court. In a cursory mention of Chevron, the Court concluded that “[b]ecause it makes scant sense, the BIA’s interpretation, we hold, is owed no deference under the doctrine described inChevron[.]” Instead, the Court rendered its own interpretation of the statute, holding that “to trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug ‘defined in [§ 802].’”

Walker, surveying this field, poses a series of questions regarding how this “scant sense” language factors into the analysis under Chevron: “At Chevron Step One when determining if the statute is ambiguous? Or at Chevron Step Two when determining whether the agency’s interpretation is a reasonable one? Perhaps this is another Chevron Step Zero inquiry…. Or maybe this is more evidence for [the] claim that Chevron has only one step,” i.e., an inquiry into the reasonableness of the agency’s interpretation. Walker’s vote is with Step Two, and that is a logical place for the “exception”: an interpretation that makes “scant sense” is presumably unreasonable, arbitrary, capricious, or contrary to law.

But look more closely and it is apparent that Mellouli is not, in any meaningful sense, about deference at all, or at least not about a traditional application of Chevron. Chevron is a straw-man, brought out to the scaffold only to be summarily executed on the Court’s path to an interpretation of the statute it prefers, and this is true even if one accepts that the Board’s extant interpretation was not reasonable. Is this a Step One case? It does not appear to be, as the Court does not aver that Congress dictated a clear and unambiguous meaning for the relevant provision, and, in fact, agreed with the Government’s grammatical analysis of the statute. The Court thus seems to presuppose that deference would be warranted if the Board had rendered a reasonable interpretation of the statute.

So then it seems to be a Step Two case, premised on ambiguity regarding the breadth of “relating to.” But if “scant sense” is synonymous with an unreasonableness finding at Step Two, the appropriate course would be to remand for further interpretation by the agency charged with administering the statute. The Court took exactly this course in Negusie v. Holder, after concluding that the Board’s prior interpretation was premised on a legal error, and even accepted the need for further agency interpretation in Judulang v. Holder, where the agency’s interpretation had strayed so far from the statute that the Court declined to apply Chevron at all and instead utilized the review provisions of the Administrative Procedure Act. Yet the Court did not remand after concluding that the Board’s interpretation was “unreasonable,” despite the government’s contention that it should do so if it found the Board’s reasoning unsupportable. Rather, despite other possible interpretations and rationales, including those provided by the Eighth Circuit in the first instance, the Court provided its own interpretation of the statute as requiring a connection between the conviction itself and a federally controlled substance. So then it’s a clear language holding at Step One? No … and so on. Justice Thomas’s observation, in dissent, of the circularity of the majority’s reasoning is well-taken.

The decision is driven by two contradictory strains—the Court’s implicit determination that the statute is ambiguous, and its seeming belief that there is no reasonable interpretation that would embrace a conviction premised on a non-federally controlled substance. The decision thus resolves itself in a non-plain language plain-language reading of the statute which focuses narrowly on the “as defined in” language, even as it accepts the government’s contention that “relating to” modifies “law or regulation.” The logical outcome of the latter conclusion is not the Court’s ultimate holding, but rather Justice Thomas’s dissent; a plain-language holding affirming the removability determination.

Each of Walker’s posited contentions for what exactly is going on here is facially plausible, but each falls short. Despite the effective reality of the Court’s de facto clear-language holding, the case is not about Step One, nor is it clearly about Step Two, as deference should require, at the least, permitting the agency the opportunity to reinterpret the provision in light of the Court’s identification of the legal flaws in its reasoning before a contrary interpretation is imposed by a court; the Supreme Court has consistently chided the courts of appeals for over-stepping on exactly this count. The declination to remand also undercuts the one-step reasonableness conception of Chevron. Finally, whatever else Congress might have desired in enacting this provision, Justice Thomas gives good reasons for assuming the agency’s interpretation is not an elephant being squeezed into a mouse-hole.

The bizarreness of Chevron’s invocation in this case is more likely attributable to the substantive area of law—immigration—and the soft-stepping of basic administrative law principles that both the Supreme Court and the courts of appeals engage in when the threat of deportation looms. Walker also notes this possibility, referencing the review of Mellouli Kevin Johnson did for SCOTUSBlog: the lackadaisical application of deference may be “just an immigration-specific feature of the Roberts Court, in that the Court ‘will not rubber-stamp the removal decisions of the executive branch, even those involving immigrants convicted of drug-related crimes that the immigration laws target for harsh treatment.’”

This is the deportation-is-different rationale, that immigration proceedings, nominally “civil” in nature, are in fact a hybrid marrying the possibility of the harsh punishments more akin to criminal proceedings with the looser procedural protections designed for civil and administrative law proceedings. Where deportation is concerned, then, the Supreme Court’s conception of room for deference to the agency’s interpretation of the removability provisions is more circumscribed than it otherwise would be in other administrative law contexts, or even in other areas of immigration law concerning relief from removal or the conferral of benefits. For instance, the Supreme Court has recently invoked Chevron and deferred to the Board’s interpretation of the presence and residency requirements for cancellation of removal (Martinez-Gutierrez), a discretionary form of relief, and its limiting interpretation of eligibility for visas for aged-out child beneficiaries (Cuellar de Osorio). But in the first case, removal has been established and all that is at issue is discretionary relief for a concededly removable alien, whereas in the second case the potential beneficiary has no right to enter or remain in the United States and is seeking the initial conferral of a benefit. Put differently, whereas the Supreme Court seems inclined to apply Chevron robustly to these types of relief and benefit determinations, it may be inclined to provide a shorter leash (or none at all) where the interpretation concerns the removability provision itself.

If Mellouli does fit most comfortably in this rubric—an attempt by the Supreme Court to protect the continued lawful residence of “an educated professional engaged to an American citizen,” as Justice Thomas’s instinct tells him—are there any broader lessons to be taken from the decision? Any lesson would be narrow. The decision neither spells the end of Chevron in immigration law, nor should it be taken as an indication of the level of deference the Court might apply in other agency contexts.Chevron is invoked here only as a formalistic means to a preordained end, one in line with how the Roberts Court has approached other deportability cases even as it has maintained a more traditional application of deference once removability has been established. If the Court is sold on the deportation-is-different argument, then the full embrace of Mellouli’s implicit Chevron-is-different-where-deportation-is-concerned makes perfect sense.