The Immigration Rule of Lenity and Chevron Deference

Abstract

The rule of lenity is commonly thought of as the ancient canon of statutory construction which directs that ambiguities in penal statutes be construed in favor of the defendant. There is a similar, but lesser known, canon of construction in immigration law, however, often similarly referred to by courts as the rule of lenity, which directs that statutory ambiguities in deportation provisions be resolved in favor of the noncitizen. Despite the extreme judicial deference traditionally given the political branches in immigration matters, courts have long employed this canon, created by the Supreme Court in light of the harshness of deportation.

Despite the Court's recent reference to it, the role of the immigration rule of lenity in deportation proceedings is no longer clear due to the now-famous Chevron doctrine. One important issue left unresolved by the Court in Chevron is the role of canons of construction in the review of agency interpretations. Chevron, which directs reviewing courts to defer to reasonable agency interpretations of ambiguous statutes, is in direct conflict with the immigration rule of lenity (as well as other strict construction canons), which directs that such ambiguities be resolved in the opposite direction. Although the Court's opinion in Chevron stated that courts should not defer to agency interpretations if Congress had expressed an intent regarding the interpretive issue before the court, determined by employing "traditional tools of statutory construction," the Court did not shed any light on the issue of the role of canons of construction in determining congressional intent. Similarly, although the Court stated that only reasonable agency interpretations should be deferred to in the case of ambiguity, the Court did not provide any guidance regarding the role of canons in determining whether the agency's interpretation is reasonable. This Article analyzes the conflict between the immigration rule of lenity and Chevron deference and argues that courts should consider lenity, and canons in general, when reviewing agency interpretations.

Keywords: immigration, statutory interpretation, constitutional law, canons

JEL Classification: K33, K19