Post Loper Bright Approval of Agency Best Interpretations (12/3/24)

I have previously blogged on my anecdotal analysis of large data sets of cases supposedly applying Chevron deference but really not so because the agency interpretation supposedly deferred to was the best interpretation. In other words, although those cases seemed to apply deference, they really did not. e.g., Chevron Deference: Much Ado About Not Much (Federal Tax Procedure Blog 8/15/21), here; Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure Blog 4/2/22; 4/3/22), here; and Chevron Step Two Reasonableness and Agency Best Interpretations in Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here. I further noted that, observing that phenomenon, a prominent appellate judge said: “It would probably be too cynical to suggest that the courts are just accepting agency interpretations with which they agree and rejecting those they disfavor, but in some cases that almost seems to be what is happening.” Jon O. Newman, On Reasonableness: The Many Meanings of Law’s Most Ubiquitous Concept, 21 J. App. Prac. & Process 1, 83 (2021), here. One of my key points in discussing the phenomena was that the demise of deference, which we now have with Loper Bright, might not produce materially different outcomes.

The post-Loper Bright opinion in Diaz-Arellano v. U.S. Attorney General, ___ F.4th ___ (11th Cir. 2024), CA11 here and GS here, illustrates. In that case, the interpretive issue involved cancellation of removal of an alien for “exceptional and extremely unusual hardship” including a child defined as “an unmarried person under twenty-one years of age.” The question was whether the child’s age status must be met at time of application or at time of the hearing (which often can take many months after application, resulting in the child aging out during the process).

The Diaz-Arrelano majority noted that, in briefing the Government argued that Chevron required differing to the agency interpretation (at hearing) and at oral argument the Government added the argument that the agency interpretation was the best interpretation requiring no deference. Briefing and oral argument preceded Loper Bright. The Diaz-Arrelano opinion was rendered after Loper Bright.  The panel majority noted the Loper Bright demise of deference requiring it to review de novo without deference, but held that the Government interpretation was the best interpretation of the statute. In other words, best interpretations neither need nor require deference to prevail, which is what Loper Bright means. The result is that many pre-Loper Bright cases appeared to apply deference were really masking approval of best interpretations, meaning that the demise of deference will not materially affect outcomes.

 The  panel majority noted (p. 8 n.5 (carrying over to p. 9)):

    n5 The only other circuits to have addressed this issue in published opinions agree that an alien’s child must be under the age of twenty-one as of the final adjudication of the alien’s application for cancellation of removal, though both relied on Chevron. See Mendez-Garcia v. Lynch, 840 F.3d 655, 663–64 (9th Cir. 2016); Rangel-Fuentes v. Garland, 99 F.4th 1191, 1194–97 (10th Cir.), vacated and panel reh’g granted, No. 23-9511, 2024 WL 3405079 (10th Cir. July 10, 2024) (reconsidering in light of Loper Bright).

It is not clear whether Loper Bright’s blessing of prior Chevron outcomes under stare decisis will apply to the cases identified in the footnote, but the Courts could hold that the agency interpretation is the best interpretation upon de novo review. If the phenomenon I noted of courts invoking Chevron to defer to best agency interpretations was fairly common (as I think), that could be the outcome after Loper Bright. And it will illustrate the point I made back during Chevron days that there really was not much deferring going on (thus making the commotion about Chevron deference largely pointless).

The dissenting opinion in Diaz-Arellano v. U.S. Attorney General, ___ F.4th ___ (11th Cir. 2024) is worth some discussion.  The dissenting judge was Charles R. Wilson, a Clinton appointee (Wikipedia here). Judge Wilson reads the text in a more generous, immigrant-friendly way to permit cancellation if the child is under twenty-one on the date of application, saying (pp. 1-2 of dissent, emphasis supplied):

I dissent from the majority’s characterization of § 1229b(b)(1)(D) to “unambiguously require[] that a[] [noncitizen] have a qualifying relative when the immigration court finalizes its decision on the application.” Maj. Op. at 6. Because the statute is silent on the timing of the qualifying relative’s age, it is necessarily ambiguous as to this issue.

   ****

          When statutory language leaves questions unanswered, as it does here, we are directed to interpret the provision “not in a vacuum, but with reference to the statutory context, structure, history, and purpose” of the law, “not to mention common sense.” Abramski v. United States, 573 U.S. 169, 179 (2014) (internal quotation omitted); see also Perez v. Owl, Inc., 110 F.4th 1296, 1308 (11th Cir. 2024).

Noting that immigration proceedings can be lengthy and outside the control of the applicant, Judge Wilson felt that more reasonable reading of the age requirement to apply to the application. He says (dissenting opinion pp. 3-4):

[M]y practical interpretation of the statute parts from the majority’s technical construction. When a noncitizen applying for cancellation of removal reads § 1229b(b)(1)(D), they likely—and [*4] justifiably—think they have until their child’s twenty-first birthday to submit their application. It is harmful to applicants, and contrary to principles of common sense, to deny an application that met statutory requirements at the time it was submitted.

I doubt that Judge Wilson (and his clerks) was not aware of the Loper Bright extravagant claim that there is no statutory ambiguity when an agency interpretation is involved. Rather, he just adopted a realist and pragmatic approach to resolving the statutory interpretation issue as to which he felt Congress had provide no guidance. (I agree with the implication of Judge Wilson's dissent that the Supreme Court cannot really have meant that statutory ambiguity cannot exist.)