Review of Statutory Interpretation Part 1

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Review of Statutory Interpretation Part 1
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Materials to Review

• MIKVA LANE, AN INTRODUCTION TO STATUTORY
  INTERPRETATION AND THE LEGISLATIVE PROCESS (1997)
• IMMIGRATION AND NATIONALITY LAW CASES AND
  MATERIALS (selected pages)
• Additional sources that we have consulted
• 8 U.S.C.
• Other materials that you will need to be aware of
  and consult in the future include 8 C.F.R. ,
  Operation Instructions (O.I.), Foreign Affairs
  Manual (F.A.M.), and the U.N. Handbook on
  Procedures and Criteria for Determining Refugee
  Status.

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INS v. Phinpathya

• Application of the plain meaning rule.
• It was applied irrespective of the position taken
  by the government in the case

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Gonzalez v. Reno

• Introduces immigration procedures and the concept
  of admission and entry which we will revisit
• The case is rich in that if you re-read it in
  light of what you have read about deference, and
  the rules of statutory interpretation, you will
  find much more in it.
• It is one of the earlier cases involving judicial
  review of immigration decisions following the
  1996 Amendments.
• It is notable in that once again the court was
  not willing to accept a jurisdiction stripping
  provision without clear Congressional intent to
  do so.

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Chevron v. NRDC

• Deference in the interpretation of the statute to
  the expertise of the government agency
• Has Congress spoken directly to the precise
  question?
• If not, the reviewing court may not impose its
  own construction
• It must ask whether the agency interpretation is
  based on a permissible construction of the
  statute
• Where there is an explicit gap this is construed
  an express delegation of authority for the
  agency to issue regulations.

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Landgraf v. USI Film Prod.

• Gap filling and retroactivity
• When there are gaps and they involve the
  retroactive application of a rule the court will
  not assume that the intent of the legislature
  unless it is absolutely clear.

U.S. v. Mead

• Not all cases involving agency action will be
  treated with deference as in Chevron
• Where an agencies practice, policy or action are
  not binding on all parties, its later decision
  relying on the prior action will not be accorded
  the traditional Chevron deference.

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• Viewed narrowly, Mead only applies to
  classification rulings or other
  interpretations.
• Viewed more broadly, Mead may open the door to
  other challenges to the long-standing deference
  of Chevron.

INS v. St. Cyr

• We see the application of Landgraf to
  immigration law, finding that a statute with
  broad reaching effect would not be applied
  retroactively by implication. Congress in making
  a statute retroactive must do so explicitly and
  unambiguously..

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Researching Regulatory History

• Title 8 of the code of federal regulations (8
  C.F.R.)
• Identifying the appropriate section is difficult
  and there are web documents which
• Cross-references the U.S. Code with the INA
• Identifies the important parts of the regulation
  which provide citations for researching its
  history
• The CFR reference will lead you to the policy
  manual source (O.I)
• Additional sources include the DHS Policy Manual
  and Handbooks
• DHS Interpretations (naturalization questions)
• Administrative Decisions of the Board of
  Immigration Appeals
• Foreign Affairs Manual (F.A.M) - Department of
  State Vol 9