The Immigration and Nationality Act (INA) predicates various civil and criminal consequences on a noncitizen’s prior conviction for an “aggravated felony.” In determining whether a noncitizen’s prior conviction counts as one for an aggravated felony, courts and the relevant immigration agencies employ what is known as the categorical approach. That approach collides with Chevron deference when a federal court of appeals is asked to review a Board of Immigration Appeals (BIA) interpretation of the INA’s aggravated felony definition. Because it is an agency charged with administering the INA, the BIA would appear to be a prime candidate for Chevron deference. And indeed, most federal courts of appeals do defer to the BIA in these situations. But not all of them do. What is perhaps more striking is that the Supreme Court never has. Rather, in the face of repeated government pleas for deference, the Court has consistently declined to address the issue. There thus exists confusion both vertically and horizontally among the federal courts as to how this tension between Chevron deference and the categorical approach should be resolved.
This Note suggests that the Supreme Court has been correct to implicitly reject the Chevron framework in the aggravated felony context. And in the absence of any clear explanation from the Court, this Note proposes one of its own: The very nature and methodology of the categorical approach render the BIA categorically ineligible for Chevron deference when it is interpreting the generic crimes listed in the aggravated felony definition.
* Law Clerk to the Honorable J. Harvie Wilkinson III, U.S. Court of Appeals for the Fourth Circuit; J.D., Stanford Law School, 2017.