Amicus Curiae Brief — Jean Francois Pugin, Petitioner v. Merrick B. Garland, Attorney General

No. 22-23

SS

In the Supreme Court of the Anited States

LOD

JEAN FRANCOIS PUGIN,

Petitioner,

Vv.

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondent.

ON PETITION For A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

For THE FOURTH CIRCUIT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 8 OTHER STATES

IN SUPPORT OF PETITIONER

PATRICK MORRISEY LIinpsay S. SEE

Attorney General Solicitor General

OFFICE OF THE Counsel of Record

WEST VIRGINIA

ATTORNEY GENERAL MICHAEL R. WILLIAMS

State Capitol Complex Senior Deputy Solicitor

Building 1, Room E-26 General

Charleston, WV 25305

lindsay.s.see@wvago.gov Max A. SCHREIBER*

(804) 558-2021 Fellow

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

=

QUESTIONS PRESENTED

Under the Immigration and Nationality Act (INA), a

noncitizen who is convicted of an “aggravated felony” is

subject to mandatory removal and faces enhanced

criminal liability in certain circumstances. One

aggravated felony is “an offense relating to obstruction of

justice.” 8 U.S.C. § 1101(a)(43)(S). The questions

presented are:

1. Whether a state offense—like petitioner’s accessoryafter-the-fact offense here—that does not involve

interference with an existing official proceeding or

investigation may constitute an “offense relating to

obstruction of justice.”

2. Whether, assuming that the phrase “offense relating

to obstruction of justice” is deemed ambiguous, courts

should afford Chevron deference to the Board of

Immigration Appeals’ interpretation of that phrase.

TT

ii

TABLE OF CONTENTS

Questions Presented .......scsccssssesssssssessssssesessssuessssecssssvesssssees I

Introduction and Interests of Amict CUride srccccccsssesssseeses 1

Summary of Argument ....ccscccssssssecsssssssssstssscssseeecssssesessssssecs 4

Reasons for Granting the Petition... ccccccssssssessssesssecsoose 5

I. Courts Should Not Apply Chevron To

Agency Interpretations Of Statutes With

Criminal Consequences ....cccssesssssssesssssecsecssecsseecseeessses 5

II. Lenity Would Resolve Any Ambiguity In

A Civil-Criminal Statute Before Ever

Reaching Chevron Step Two...se.cscsssssscsscsesssecssessssesse 15

Conclusion .0...seseccssesssessssssssssssssssssssessesssecsessssssecseseseseccecceees 21

III

TABLE OF AUTHORITIES

Cases

Abramski v. United States,

573. U.8.-169 (201A) wcccsssssseverssrsoscsseeneresessvesnses

Adams Fruit Co. v. Barrett,

AQA U.S. 638 (1990) sccssscssersassscassscsssessncesasersnves

The Adventure,

1 F. Cas. 202 (CC Va. 1812) (No. 98) ........004+

Aposhian v. Barr,

958 F.3d 969 (10th Cir. 2020).......ssssssceseeeee

Aposhian v. Wilkinson,

989 F.3d 890 (10th Cir. 2021) oc eeseeseeeee

Arangure v. Whitaker,

911 F.3d 333 (6th Cir. 2018)... eeseseceereees

Babbitt v. Sweet Home Chapter of Cmtys.

for a Great Oregon,

515 U.S.-687 (1995) sccsassissssssorssererconsessvesseassoss

Barnhart v. Walton,

535 US8.212 (2002) sccsssscsssssssessssszensssssassrasesssee

Bell v. United States,

349 U.S. 81 1955) ssscsisscscssssssisesreverccveneasisasseaee

Bryan v. United States,

524 U.S..184 (1998) ssssssisssnsnssssssssesessnssessssavevses

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2018).......ccsssesseeees

Page(s)

bata

NV

TABLE OF AUTHORITIES

(continued)

Page(s)

Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc.,

AGT US, 887 (198A) csccesvcasscivisvsconsesecnoneevenseneressvescess 1, 7,9

City of Arlington v. FCC,

569 U.S. 290 (2018) w.eseccecssssssssscsssssescccssencecssesseace 11, 18

Clark v. Martinez,

543 U.S. B71 (2005) vesessseecessssssesscsseccesessessesessessesscsecs 6, 16

Crandon v. United States,

494 U.S. 152 (1990) oeeecceccsescseessecssesssssessecsnstessecsuessvease 16

Crowell v. Benson,

285 U.S. 22 (1988) ..eececcssecssssssssssesssessesaessessesasssesssessecese 17

Cupete v. Garland,

29 F4th 53 (2d Cir, 2022)... cecccsssssssesesectesessessseesecseees 7

Dixson v. United States,

465 U.S. 482 (1984) wc eececccecssessessssssssesecssssesucsessecsessessees 15

Dolfi v. Pontesso,

156 F.3d 696 (6th Cir. 1998).....cccssscescessssecsessesseseseees a

Dunn v. United States,

442 U.S. 100 (1979) .eeecessessssesscssssscsssscssssessesssessessessees 18

Epic Sys. Corp. v. Lewis,

188 S. Ct. 1612 (2018) ..cececsscssssssesseessecseeseseess 12, 15, 16

Esquivel-Quintana v. Lynch,

187 S. Ct. 368 (2016) w.eeceecceccsesessssssestecessesecsecscssesecsesseees 5

Esquivel-Quintana v. Lynch,

810 F.8d 1019 (6th Cir. 2016)... eecseseeseeseeeee 19, 20

Vv

TABLE OF AUTHORITIES

(continued)

Page(s)

Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017) ......eescscececececsssssssesesssssesseeees 5, 15

FCC v. ABC,

B47 US: 284.1954) wcasscesscesnsvsessnovonsevsssaasvescerseseesasnanexess 16

Gamble v. United States,

139 Ss Ct, 1960 (2019) ssscssvesvessevscersrasessessemsnanseeneize 2

Gregg v. Georgia,

A28 U.S: 158 (1976) ssxsseesseccrsnssssesssceenanaseaaeearGeeense 8

Guedes v. ATF,

140 S. Ct. 789 (2020) ...seesccecssessssesessssesseceenescsseeeeseees 13

Guedes v. ATF,

920 F.3d 1 (D.C. Cir. 2019) oe eseeeseeeseeteesseeeseeeenee 13

Gun Owners of Am. v. Garland,

19-F 4th 890 (Gth Civ: 2021) sscsccssesecascesensssessusevseesarsvsvse 19

Gutierrez-Brizuela v. Lynch,

834 F.3d.1142 (Oth Cir: 2016) vsssscsvssessssvessveenersensvesvccess 3

INS v. Aguirre-Aguirre,

526 U.S.415 (1999) scscussvessresmnvernanmnameniraas 8

INS v. St. Cyr,

533 U.S.289 (2001) scssssssessazscnsasssessssssssscsesastesssvescseacneass 15

Jean v. Nelson,

472 U.S. 846 (1985)... eeeesssssssscccesscccsseescsssessrsesseseeseeees 10

Kahler v. Kansas,

140 S. Ct. 1021 (2020) on. eesscsessectsesssesesssseseserenseee 8

Vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) w..eeececcssssessssssscsesseseseessseccrsseees 15

Leocal v. Ashcroft,

543 U.S. 1 (2004) oe ceecsecseceesscsesssscsssssssssseessseceeseseseas 6, 16

Liparota v. United States,

AT] U.S. 419 (1985) oe eccesessessesesssssesssesssecessseessesesesseses 19

Marbury v. Madison,

5 U.S. 187 (1808) oe eescecsesseessessessessesscsscsscsesnsarensseeetaees 12

McBoyle v. United States,

283 U.S. 25 (1981) o.sseeceesssessssccsecssessessscssessesusseenssscencens 18

Metro. Stevedore Co. v. Rambo,

521 U.S. 121 (1997) eeccsecseesssssessesssscsstssssesecsecetssesesseens 5

Michigan v. EPA,

576 U.S. 743 (2015) oesessesssessssssessessssessscssssesscssensensaceecees i

Nat'l Cable & Telecomms. Ass’n v. Brand

X Internet Servs.,

545 U.S. 967 (2005) ....eesesssessessessesscssssscsessessesessesacseseseeees 5

Negusie v. Holder,

559 U.S. 511 (2009) o.eeceecsessesssessessssccssessessessssseteseeeesesaees 7

OfficeMax, Inc. v. United States,

428 F.3d 583 (6th Cir. 2005)....cccecsesssssssscsesceeeeseeseeceaes 15

Pension Benefit Guar. Corp. v. LTV Corp.,

496 U.S. 633 (1990) o..eeeessesseessssssecssssessssesscseesesessesreseeseess 6

Ratzlaf v. United States,

B10 U.S. 185 (1994) we eseecsesssessscssecseesscsscsusssssneeneenes 18

VII

TABLE OF AUTHORITIES

(continued)

Scheidler v. Natl Org. for Women, Inc.,

537 UsS.393 (2008) ccosesssseossoseensasssssressvsneresnsee

Screws v. United States,

325 US. 911945) sscassessesssssssceseveeesnsesesrasssreery

Shinn v. Ramirez,

1428. Che 178 (2022) cscssussessscossssswssssrsvseenessoen

Silva v. Garland,

27 F Ath 95 (Ist Cir. 2022)........ssccssssssssessense

Skidmore v. Swift & Co.,

823 U.S. 184 (1944) oes

Solid Waste Agency of N. Cook Cnty. v.

U.S. Army Corps of Eng’rs,

BBL US: 159 200D) sesescsvsnssrssssavenccsorsscesvesnoneees

Taylor v. United States,

A95 U.S. 575 (1990) cesesssscsesvessvsvssssssoavesiersnssve

U.S. Forest Serv. v. Cowpasture River

Pres. Ass’n,

140'S, Ct 1887 (2020) cssssssscsssscoscsvsssevessaresevaase

United States ex rel. Accardi v.

Shaughnessy,

B47 U.S: 260 1954) wsccssscesccssssassecevasceneccersstsas

United States v. Am. Trucking Ass’n,

810 U.S. 584 (1940) oe esesessessssetessssessensees

United States v. Apel,

571 U.S. 859 (2014) oe esesesessestssesecsseeneenees

Vill

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Bass,

404 US. 886 (1971) sssssssaesrcsaesnmsnnermnnanncns 8

United States v. Campos-Serrano,

404 U:S: 293 971) swesssexcceemoremncnaennnens 16

United States v. Davis,

139 Ss Ctx 2319 (2019) seversssessveresscsasvexysssazcd eneceeneere 12, 15

United States v. Grimaud,

220 U.S. 506 (1901) .......e.scecescsssesessecssscesecnsssnseersrseseares 12

United States v. Kozminski,

A87 U.S. 931 (1988) oe eceecsecesesesssssssescsesessseseseeesseseseeees 18

United States v. Lanier,

520 U.S. 259 (1997) ..eeescsscsssessssessesssscsseessssesesseseeseacees 15

United States v. McGoff,

831 F.2d 1071 (D.C. Cir. 1987) ..cceceesceesessseseeseseeesees 19

United States v. Scully,

108 F. Supp. 3d 59 (E.D.N.Y. 2015)... ceseseseesesseeeeees 20

United States v. Thompson/Ctr. Arms Co.,

504 U.S. 505 (1992) oo... eecesesessecesessssesssssseseecsesesssnseenescees 17

United States v. Wiltberger,

18 USS. (5 Wheat.) 76 (1820) ....eccssssesesesessessseseseseseeee 17

Valenzuela Gallardo v. Barr,

968 F.3d 1053 (9th Cir. 2020)... eeeecessseeseeseeseseeee 12

Van Harken v. City of Chi.,

103 F.8d 1846 (7th Cir. 1997)... ccecsesescteseseseseseseseees 3

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

WEC Carolina Energy Sols. LLC v. Miller,

687 F.3d 199 (4th Cir. 2012).....cescssssesessessesesseseesees 16

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ....ececsssesessssesssscsssscecsecnesesesseses 5, 10

Whalen v. United States,

AAS U.S 1684 (L980) sacvercsorsssrarevssecsssszesceciceceseenesneoneoeeneese ih

Whitman v. United States,

574 U.8.,1003 (OLA) esserensvecsisssessssatsiseeoverees 11, 14, 19, 20

Constitutional Provisions

U.S. CONST. AMEND. Vu..escsccsssssssssssssssecesessesesessesesscecsscsusee

U.S. CONST, AMEND. XIV

Statutes

BVS.C.S LOD ssssssvscscssissavsssccssaseincsesecssnseseesesscssessenaveseseves 13

8 U.S.C. 1826 wscsccseorescescsesoscessseccnecsesovssersussnseosstesencenseseses

8 U.S.C. § 1827...

16 U.S.C. § 1540

26 U.S.C. § 7201

26 U.S.C. § 7231

26 U.S.C. § 7402

42 U.S.C. § 1820d-5..

42 U.S.C. § 1820d-6

56 Stat. 23 (1942)...e.ssessecccecsssssssecessessaessseseeerevsesssscsesseasersseces 3

x

TABLE OF AUTHORITIES

(continued)

Regulations

SCLFLR. § L008 Li ccccceeetesesesesseseseseenenenenenenes

Other Authorities

Br. Amicus Curiae of Mont.,

W. Va., and 20 Other States, Gun

Owners of Am. v. Garland

(S. Ct. Apr. 7, 2022), 2022 WL 1093282........

Cass R. Sunstein,

Chevron Step Zero,

92 VA. L. REV. 187 (2006) cscsssesscnssscssserrsscererse

Elena Kagan,

Presidential Administration,

114 HARV. L. REV. 2245 (2001)......seccsecseceeees

Evan J. Criddle,

Chevron’s Consensus,

88 B.U. L. REV. 1271 (2008).....ccseseseeeeeseees

THE FEDERALIST NO. 11

(A. Hamilton) (C. Rossiter ed. 1961) ............

Henry J. Friendly,

The Federal Administrative Agencies:

The Need for Better Definition of

Standards,

75 HARV. L. REV. 1263 (1962) ....ssecscesseceeseeeee

Jeremy D. Rozansky,

Waiving Chevron,

85 U: Coto L: REV: 1927 (2018) wssisssissaseosexessze

Page(s)

rT 10, 18

XI

TABLE OF AUTHORITIES

(continued)

Karl N. Llewellyn,

Some Realism About Realism—

Responding to Dean Pound,

44 HARV. L. REV. 1222 (1981)... cesses

Kristin E. Hickman,

The Need for Mead: Rejecting Tax

Exceptionalism in Judicial Deference,

90 MINN. L. REV. 1537 (2006).......ccsseseseeee

Michael G. Heyman,

Immigration Law in the Supreme

Court: The Flagging Spirit of the Law,

28 J. LEGIS. 113 (2002) ....ccccsccsccssseesssssseesosers

Michael Kagan,

Chevron’s Liberty Exception,

104 IowA L. REV. 491 (2019)... eesesssseee

Rachel Scholz-Bright,

A Hail Mary for the Administrative

State: An Originalist Defense of

Chevron Deference,

19 GEO. J.L. & PUB. POL’Y 578 (2021)..........

Tr. of Oral Argument,

Esquivel-Quintana v. Sessions,

187 S. Ct. 1562 (2017) (No. 16-54),

2O1T WL 749022.....ssssssssssesesversssstssessseonsnseusoees

Page(s)

INTRODUCTION AND INTERESTS

OF AMICI CURIAE'

When criminal defendants stand in the dock to hear

their fate, their freedom should not hinge on unelected

bureaucrats. Congress holds “the power to define

criminal offenses and ... prescribe the punishments to be

imposed upon those found guilty of them.” Whalen v.

United States, 445 U.S. 684, 689 (1980). So Congress’s will

is what matters, not an executive agency's. And “[w]hen

Congress has the will” to make something a crime, “it has

no difficulty in expressing it.” Bell v. United States, 349

U.S. 81, 83 (1955). Thus, statutes with criminal

implications should leave little room for agency judgment

calls.

Yet Petitioner Jean Francois Pugin faces substantial

criminal liability because a federal administrative

agency—not Congress—said he should. Confronted with

the question of how to define “an offense relating to

obstruction of justice” in the Immigration and Nationality

Act, the Fourth Circuit deferred to the judgment of the

Board of Immigration Appeals instead of using the words

that Congress wrote to construe the statute. As a result,

Pugin could spend many more years in prison than he

otherwise would, particularly should he return to the

United States. See Pet.35-36. And although the court

couched its choice as an ordinary use of administrative

deference, see Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984), it was anything but.

“(Criminal laws are for courts,” not the executive, “to

construe.” Abramski v. United States, 573 U.S. 169, 191

(2014). Administrative deference therefore should not

1 Under Supreme Court Rule 37.2(a), amici timely notified counsel

of record of their intent to file this brief.

come into play when a statute has criminal implications, as

the INA does.

The amici States of West Virginia, Alabama, Arizona,

Idaho, Indiana, Mississippi, Montana, Nebraska, and

Texas agree with Pugin that agencies should not be

empowered to abrogate Americans’ liberty interests

through broad administrative deference and statutory

reinterpretation. Applying Chevron deference when a

statute has criminal implications offends the separation of

powers. It also ignores well-established canons of

construction, like lenity. States have a particular concern

with shunting canons aside while elevating an agency's

preferences—for if the rule of lenity might succumb to

Chevron, then the federalism canon might, too. See U.S.

Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct.

1837, 1849-50 (2020). The Court should thus grant

certiorari to reiterate that canons of construction play a

central role in statutory interpretation, not a secondary

one—even in an agency case.

Applying Chevron to civil-criminal statutes like the

INA also extends the reach of the federal government into

an area of the law meant to be “primarily a responsibility

of the States.” Shinn v. Ramirez, 142 8. Ct. 1718, 1730

(2022). At least at one time, “the administration of

criminal justice rest[ed] with the States except as

Congress, acting within the scope of those delegated

powers, ha[d] created offenses against the United States.”

Screws v. United States, 325 U.S. 91, 109 (1945) (plurality

op.). But agencies have now inserted themselves into the

equation, too. And to what end? “[TJhe federal criminal

code” is no longer “thin, modest, and restrained.” Gamble

v. United States, 139 S. Ct. 1960, 2008 (2019) (Gorsuch, J.,

dissenting). It hardly needs another boost from Article I

functionaries crafting still more extensions.

38

And this problem is not confined to the immigration

context. “It is extraordinarily common ... for a statute to

carry both civil and criminal penalties.” Van Harken v.

City of Chi., 103 F.3d 1346, 1350 (7th Cir. 1997). Dual civilcriminal statutes run the gamut from tax laws, 26 U.S.C.

§§ 7201, 7231, 7402, to the Endangered Species Act, 16

U.S.C. § 1540, to emergency-price-control laws, see, ¢.g.,

56 Stat. 23 (1942), medical-privacy laws, 42 U.S.C.

§§ 1820d-5(a)(1), 1820d-6, and more. Statutes like

these—doing double civil-and-criminal duty—constitute

“a category that covers a great many (most?) federal

statutes today.” Gutierrez-Brizuela v. Lynch, 834 F.3d

1142, 1156 (10th Cir. 2016) (Gorscuh, J., concurring). And

many of the States here have already noted how

employing deference when construing those kinds of laws

can wreak havoc. See, e.g., Br. Amicus Curiae of Mont.,

W. Va., and 20 Other States, Gun Owners of Am. v.

Garland (S. Ct. Apr. 7, 2022) (No. 21-1215), 2022 WL

10932382 (arguing that Chevron deference should not apply

to the Bureau of Alcohol, Tobacco, and Firearms

interpretation of “machine gun” in the National Firearms

Act). Yet ifthe Fourth Circuit is content to recast the INA

as nothing but a civil statute with a few criminal

consequences (and accordingly apply Chevron), then it

and other courts that follow its lead will probably do the

same with these other double-duty statutes, too.

In short, this case offers a chance to address a critical

question for criminal defendants, States, and courts alike:

whether courts should defer to an administrative agency’s

reading of a statute with clear criminal consequences.

See, e.g., Aposhian v. Barr, 958 F.3d 969, 999 (10th Cir.

2020) (Carson, J., dissenting) (“[Mly hope is that the

Supreme Court will one day take up this issue and give us

clear guidance.”). Whether because Chevron deference

does not apply to civil-criminal statutes at all or because

lenity resolves any ambiguity at Chevron Step One,

deference to the agency should play no role either way.

The Court should grant certiorari, address the

pronounced circuit split on this issue, see Pet.17, and hold

that deference has no place here.

SUMMARY OF ARGUMENT

The Court should take this case and reject applying

Chevron here for two reasons.

i. Courts have siruggied to undersiand whether

crime-related statutes stumble at Chevron’s “Step Zero.”

The Court should confirm that agencies do not deserve

deference when interpreting these statutes. Criminal or

civil-criminal statutes are not the sort of statutes that

courts can presume Congress tacitly empowered agencies

to construe. Applying the doctrine in the criminal realm

advances none of Chevron’s purposes. The Fourth Circuit

rejected these concerns out-of-hand by declaring the INA

a civil statute and nothing more. But that label ignores

reality: The BIA’s interpretation will directly expose

Pugin and others like him to more potential criminal

liability.

II. Even if a court could move past Chevron Step Zero

when construing a criminal statute, a court should still

never reach Chevron Step Two and defer to the agency’s

opinion; lenity would end the inquiry at Chevron Step One.

A court must apply all the traditional tools of construction

at Step One. The rule of lenity is one of these tools—and

it requires a court to read a criminal-law-related statute

narrower when some ambiguity exists. History,

precedent, and plain logic confirm that lenity prevails over

Chevron Step Two deference to any “reasonable” agency

construction. In fact, the Court granted a petition for

certiorari arguing exactly that just a few years ago,

Esquivel-Quintana v. Lynch, 187 S. Ct. 368, 369 (2016),

but ultimately found it unnecessary to decide the issue,

Esquivel-Quintana v. Sessions, 187 S. Ct. 1562 (2017).

With a prime case in which to resolve that lingering

question, the Court should reach it now.

REASONS FOR GRANTING THE PETITION

I. Courts Should Not Apply Chevron To Agency

Interpretations Of Statutes With Criminal

Consequences.

1. The Fourth Circuit got one thing right: it started

with the “Step Zero” question of “whether Chevron

applies at all.” Pet.App.8a. Some courts decline to take

even that step when dealing with any formal agency

rulemaking or adjudication; the First Circuit, for instance,

thought that “[t]he BIA’s administration of the INA falls

within [a] safe harbor for formal adjudications ... and thus

falls within Chevron’s domain.” See, e.g., Silva v. Garland,

27 F.4th 95, 112 (1st Cir. 2022). Those courts are wrong,

as “the existence of a formal rulemaking [or adjudicatory]

proceeding is neither a necessary nor a sufficient

condition for according Chevron deference.” Nat? Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 1004 (2005) (Breyer, J., concurring). Even formal

administrative interpretations might fail at Step Zero, for

instance, when they address major questions without

clear congressional authorization. See West Virginia v.

EPA, 142 8. Ct. 2587, 2610 (2022). They might fail when

the agency purports to construe a statute that Congress

never charged it with administering. See Metro.

Stevedore Co. v. Rambo, 521 U.S. 121, 137 n.9 (1997). Or

they might fail when they concern statutory issues that

fall within the courts’ traditional domain. See Adams

Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990).

on)

So the Fourth Circuit started down the right road—but

the wheels came off when it went on to apply Step Zero.

This case could have fallen into that last category of

cases—those that are traditionally for the courts alone.

After all, this Court has “never held that the

Government’s reading of a criminal statute is entitled to

any deference.” United States v. Apel, 571 U.S. 359, 369

(2014). “Whether the Government interprets a criminal

statute too broadly ... or too narrowly ..., a court has an

obligation to correct its error.” Abramski, 573 U.S. at 191.

And because “[t]ne lowest common denominator’”—that

is, the least restrictive form of the statute—“must govern”

when a statute has both criminal and civil applications,

Clark v. Martinez, 543 U.S. 371, 380 (2005), the principles

from Apel and Abramski should apply to dual civilcriminal statutes, too. See also, e.g., Leocal v. Ashcroft,

543 U.S. 1, 11 n.8 (2004).

Even so, the Fourth Circuit thought that whether to

pair deference with purely criminal statutes was still an

open issue—one reflecting an “ongoing debate”

implicating “serious questions.” Pet.App.8a. It then

avoided that question by recharacterizing the INA as a

purely “civil statute” that “might impact the scope of

criminal liability’ only in an “attenuated” way.

Pet.App.8a-9a. Having redefined the problem, the court

then saw no problem in applying Chevron.

2. One need only return to Chevron itself to see the

very real problem in applying it to a provision like the

INA’s “aggravated felony” definition. Step Zero should

have stopped the Fourth Circuit from applying Chevron

deference at the start.

First, “practical agency expertise” may have been a

“principal justification[]” behind Chevron, but it does not

support deference here. Pension Benefit Guar. Corp. v.

7

LTV Corp., 496 U.S. 633, 651-52 (1990). The idea behind

Chevron, it seemed, was that “those with great expertise

... would be in a better position” than the courts to resolve

statutory ambiguities. Chevron, 467 U.S. at 865. Chevron

itself provided the first archetypal example: The

Environmental Protection Agency was there construing a

technical provision of the Clean Air Act that defined a

“stationary source” for pollutants. Jd. at 840-41. And

since Chevron, this Court has continued to stress that

factors like “the related expertise of the Agency,” “the

complexity of [the statute’s] administration,” and “the

careful consideration the Agency [gave] the question”

drive the analysis. Barnhart v. Walton, 535 U.S. 212, 222

(2002).

Whatever the merits of this “expertise rationale”

generally, the BIA has no relevant expertise to bring to

bear here. To be sure, the BIA might have expertise in

construing the immigration statutes generally. That

expertise may or may not warrant deference sometimes.

See Negusie v. Holder, 555 U.S. 511, 531 (2009) (Stevens,

J., concurring in part and dissenting in part) (explaining

that “central legal issues” and “pure questions of

statutory interpretation” should still be decided by courts,

not agencies). But the BIA “has no particular expertise in

construing federal and state criminal statutes.” Cupete v.

Garland, 29 F.4th 53, 57 (2d Cir. 2022). And “{ujnlike

environmental regulation or occupational safety, criminal

law and the interpretation of criminal statutes is the bread

and butter of the work of federal courts.” Dolfi v.

Pontesso, 156 F.3d 696, 700 (6th Cir. 1998). Determining

what acts call for greater sanction—including

imprisonment downstream—is not a judgment requiring

technical analysis or skill in the usual sense. See also

Kristin E. Hickman, The Need for Mead: Rejecting Tax

Exceptionalism in Judicial Deference, 90 MINN. L. REV.

ie.)

1537, 1599 (2006) (noting that immigration law generally

“do[es] not require scientific or other technical training”).

Rather, “criminal punishment usually represents the

moral condemnation of the community.” United States v.

Bass, 404 U.S. 336, 348 (1971).

Life experience, personal morality, and a deep

understanding of the community at large do not

necessarily lie in bureaucratic backrooms. Thus,

“legislatures” have been specially tasked with

“respondling] to the will and consequentiy the moral

values of the people” when enacting criminal laws. Gregg

v. Georgia, 428 U.S. 153, 175 (1976). “{S]aid a bit

differently,” writing and construing criminal laws

“involves balancing and rebalancing over time complex

and oft-competing ideas about social policy and moral

culpability—about the criminal law's _ practical

effectiveness and its ethical foundations.” Kahler v.

Kansas, 140 S. Ct. 1021, 1028 (2020) (cleaned up).

Experience with immigration law does not give twentythree public servants in Falls Church special insight into

that careful balancing.

The Fourth Circuit also incorrectly thought that this

case implicated the BIA’s understanding of foreign

relations. Pet.App.7a (citing INS v. Aguirre-Aguirre, 526

USS. 415, 424 (1999)). But though immigration laws might

occasionally touch on foreign relations, the particular

provisions here—and the additional prison term in the

United States that Pugin might face given the BIA’s

approach to construing them—have next to nothing to do

with international affairs. And while the Court gave the

BIA leeway in Aguirre-Aguirre because the Board was

deciding whether to “deem certain violent offenses

committed in another country as political in nature,” 526

USS. at 424-25, nothing so sensitive is at stake here. At

9

bottom, “[t]he members of the Board do not... play any

role in the formulation of foreign policy” in a case like this

one. Michael G. Heyman, Immigration Law in the

Supreme Court: The Flagging Spirit of the Law, 28 J.

LEGIS. 113, 142 (2002).

Second, Chevron justified deference to agencies by

suggesting that they are more politically accountable to

Congress and the broader electorate by virtue of their

accountability to the President, Chevron, 467 U.S. at 865-

66, but this rationale fails here, too. Admittedly, courts

lack “electoral legitimacy” in interpreting laws. Cass R.

Sunstein, Chevron Step Zero, 92 Va. L. REV. 187, 196-97

(2006). But given the vastness of the administrative state

and the distance from which agencies now sit from the

President, it seems unlikely that the BIA (or most other

agencies, for that matter) feel constrained or otherwise

accountable to the President. See Henry J. Friendly, The

Federal Administrative Agencies: The Need for Better

Definition of Standards, 75 Harv. L. REV. 1263, 1801-02

(1962) (noting the real difficulties in asking the President

to meaningfully direct agencies). “Direct presidential

policymaking in agency statutory administration is

exceptional,” and “the degree to which any single agency

statutory interpretation impacts the President’s approval

rating may be negligible.” Evan J. Criddle, Chevron’s

Consensus, 88 B.U. L. REV. 1271, 1289-90 (2008). And it

seems odd to say in one breath that we trust agencies in

part for their detached expertise, but then confess in the

next that we reward them for their pliability in response

to presidential will. Political accountability, then, is a

challenging justification for Chevron even in the usual

case.

It is an especially weak reason to defer to the BIA’s

construction of a civil-criminal statute. The members of

10

the BIA are required to “exercise their independent

judgment and discretion in considering and determining

cases coming before the Board.” 8 CFR.

§ 1003.1(d)(1)Gi). So by regulation, Board members must

exercise that discretion independent of the lone official

accountable to the President, the Attorney General. See

United States ex rel. Accardi v. Shaughnessy, 347 U.S.

260, 267 (1954) (“[A]s long as the regulations remain

operative, the Attorney General denies himself the right

to ... dictate [the Board’s] decision in any manner.”). And

the Board’s members are career appointees subject to

Attorney General oversight only through a rarely used

direct-review provision. See Michael Kagan, Chevron’s

Liberty Exception, 104 Iowa L. REv. 491, 516 (2019).

These structural differences alone could justify a different

approach to agency deference. Cf. Elena Kagan,

Presidential Administration, 114 Harv. L. REV. 2245,

2377 (2001) (noting that less deference may be appropriate

for independent agencies).

Still other reasons explain why political accountability

does not justify deference to the BIA here. For one, crime

is different. “Political accountability” seems a feeble

benefit when liberty is at risk; trading the latter for the

former could lead to mob or “ministerfial]” rule over a

criminalized minority. West Virginia, 142 S. Ct. at 2617

(Gorsuch, J., concurring) (quoting THE FEDERALIST No.

11, at 85 (A. Hamilton) (C. Rossiter ed. 1961)). And crimes

should not be subject to the ever-shifting political

prerogatives of one administration versus another, as the

Court has recognized “the importance of a consistent

interpretation of criminal statutes.” Jean v. Nelson, 472

US. 846, 856 n.3 (1985). For another, “[t]he most visible

agency actors and agency actions are the most

accountable to the electorate and to Congress.” Jeremy

D. Rozansky, Waiving Chevron, 85 U. CHI. L. REV. 1927,

11

1963 (2018). The BIA’s decisions are unlikely to garner

much attention; they concern only individual people—who

often finds themselves removed shortly after the case is

done—and issue from a Board few Americans know exists.

Far from the bright lights of Congress, “federal

administrators can in effect create (and uncreate) new

crimes at will, so long as they do not roam beyond

ambiguities that the laws contain.” Whitman v. United

States, 574 U.S. 1008, 135 S. Ct. 352, 358 (2014) (statement

of Scalia, J., respecting the denial of certiorari).

Third, Chevron has been said to rest on separation-ofpowers principles, but those don’t work here. See City of

Arlington v. FCC, 569 U.S. 290, 327 (2018) (Roberts, C.J.,

dissenting) (“Chevron importantly guards against the

Judiciary arrogating to itself policymaking properly left,

under the separation of powers, to the Executive.”); but

see Michigan v. EPA, 576 U.S. 748, 761 (2015) (Thomas,

J., concurring) (“Chevron deference raises serious

separation-of-powers questions.”). Some believe that

ambiguous statutes must be resolved with value

judgments. See Karl N. Llewellyn, Some Realism About

Realism—Responding to Dean Pound, 44 HARV. L. REV.

1222, 1236 (1931). Working from that belief, Chevron’s

champions reason that the executive branch should make

those judgments. Deference thus works to advance that

aim, helping to guard against “judicial displacement of

political judgments.” Sunstein, supra, at 197; see also

Rachel Scholz-Bright, A Hail Mary for the

Administrative State: An Originalist Defense of Chevron

Deference, 19 GEO. J.L. & PUB. POL’y 573, 589 (2021).

Even assuming this separation-of-powers idea justifies

using Chevron in the mine-run civil case, it falls away

when an agency deals with criminal and civil-criminal

statutes. Courts are especially sensitive to separation-of-

12

powers concerns when it comes to laws with criminal

implications. “Only the people’s elected representatives in

Congress have the power to write new federal criminal

laws.” United States v. Davis, 139 S. Ct. 2319, 2328 (2019).

For that reason, Congress can delegate the power to

define crimes to the executive branch only when it speaks

“distinctly.” United States v. Grimaud, 220 U.S. 506, 519

(1911). “This clear-statement rule reinforces horizontal

separation of powers,” as Congress must “legislate

deliberately and explicitiy before departing from the

Constitution’s traditional distribution of authority.”

Carter v. Welles-Bowen Realty, Inc., 736 F.3d 722, 733

(6th Cir. 2018) (Sutton, J., concurring). Allowing an

agency to take an ambiguous statute and run with it is the

very opposite of a “distinct” agency delegation—and

Chevron, by definition, involves only “implicit”

delegations. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,

1629 (2018).

And that only describes the conflict that arises between

the agency’s asserted power and Congress’s. A tension

also arises here between the agency’s power and the

courts’, as courts are meant to construe criminal laws.

Marbury v. Madison, 5 U.S. 187, 177 (1808); see also

United States v. Am. Trucking Ass’n, 310 U.S. 584, 544

(1940) (“The interpretation of the meaning of statutes, as

applied to justiciable controversies, is exclusively a

judicial function.”). All this is to say—‘“the BIA’s

construction of a statute with criminal applications raises

serious constitutional concerns.” Valenzuela Gallardo v.

Barr, 968 F.3d 1058, 1059 (9th Cir. 2020).

Let’s be clear about the practical effect of the Fourth

Circuit’s approach: The prosecutor now seizes the power

to define crime. In most criminal cases, the roles are

carefully cast—Congress passes the law, the executive

13

decides when to prosecute, and a court decides the case.

But using Chevron deference in a case like this one merges

the three roles into one. The BIA, after all, is part of the

Department of Justice. See 8 C.F.R. § 1008.1. So one arm

of the BIA can now extend the “aggravated felony”

provision’s reach (so long as that extension is in any way

“reasonable” under Chevron). See 8 U.S.C. § 1101(a)(43).

Should Pugin reenter the country, another arm of the

Department of Justice will then be empowered to wield

that extension to obtain potentially decades of additional

imprisonment based on the Department’s own prior

determination. See id. §§ 1326(b)(2), 1827. Yet the

Constitution ensures that defendants are at the mercy of

the law, not the day’s political winds—especially for those

with little political capital like Pugin. Thus, “[b]efore

courts may send people to prison, we owe them an

independent determination that the law actually forbids

their conduct. A ‘reasonable’ prosecutor’s say-so is cold

comfort in comparison.” Guedes v. ATF, 140 S. Ct. 789,

790 (2020) (statement of Gorsuch, J.). Chevron deprives

them of that.

3. Faced with these concerns, those pushing for

Chevron in the civil-criminal context often look to a few

words from a twenty-five-year-old case—Babbitt v. Sweet

Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687,

690 (1995). See, e.g., Guedes v. ATF, 920 F.3d 1, 24 (D.C.

Cir. 2019). There, the Court considered an Endangered

Species Act provision that made it a crime to “take” an

endangered species; the Department of the Interior had

construed “taking” to include certain effects on the

species’ habitat. Babbit, 515 U.S. at 692. Although it did

not conduct a full Chevron-style, two-step analysis, the

Court did cite Chevron and say that it owed “some degree

of deference” to Interior’s “reasonable interpretation.”

Id. at 703-04. The Court never directly considered

i4

whether Chevron applies to civil-criminal statutes. It

merely “deferred, with scarcely any explanation, to an

agency’s interpretation of a law that carried criminal

penalties.” Whitman, 135 S. Ct. at 353 (statement of

Scalia, J.). :

Seeing as how it never touched on any of the issues

above, “Babbitt’s drive-by ruling ... deserves little

weight.” Whitman, 135 S. Ct. at 354 (statement of Scalia,

J.). This Court did not think that Babbitt resolved the

question of how Chevron applies to civil-criminal statutes,

as it later declined to say whether Chevron applies when

“violations of the [interpreted law] carry criminal

penalties.” Solid Waste Agency of N. Cook Cnty. v. U.S.

Army Corps of Eng’rs, 531 U.S. 159, 174 n.8 (2001). And

Babbitt seems to run smack into the Court’s later

decisions in Apel and Abramski, too. At a minimum,

though, the confusion that attends Babbitt confirms that

this question warrants this Court’s further attention.

ok RR

Whatever one thinks about Chevron’s original logic, it

finds even less footing in a case like this. “The key point

is that on close examination the standard rationales for

Chevron deference do not apply with equally persuasive

force to all agencies and to all decisions.” M.

Kagan, supra, at 517. And indeed, “[t}he standard

rationales” do not apply much at all in this case. The

Fourth Circuit should have left Chevron deference aside.

Cf. Tr. of Oral Argument at 12, Esquivel-Quintana v.

Sessions, 187 S. Ct. 1562 (2017) (No. 16-54), 2017 WL

749022 (Kagan, J., describing a “middle ground” in which

the Court does not apply lenity but also does not apply

Chevron given the “criminal application of this statute).

The Fourth Circuit erred in not recognizing as much.

15

II. Lenity Should Resolve Any Ambiguity In A

Civil-Criminal Statute Before Reaching

Chevron Step Two.

Even if Chevron did have some space to operate in the

criminal sphere, it still would not greenlight a court to

defer to an agency’s interpretation of an ambiguous civilcriminal statute. The rule of lenity says that “ambiguities

about the breadth of a criminal statute should be resolved

in the defendant’s favor.” Davis, 139 S. Ct. at 2333. And

that rule should decide the meaning of an ambiguous civilcriminal statute at Step One, so a court would never

proceed to embrace an agency’s “reasonable” construction

in Step Two. The Court very nearly held as much when it

heard Esquivel-Quintana, 137 S. Ct. at 1562. Now this

case presents a clean shot to decide that question for real.

1. Lenity should close the door on Chevron Step Two.

“[B]efore concluding that a rule is genuinely ambiguous, a

court must exhaust all the traditional tools of

construction.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019)

(cleaned up). Canons of statutory constructions are

“traditional tools.” Epic Sys., 188 S. Ct. at 1630; see also,

e.g., INS v. St. Cyr, 533 U.S. 289, 320 (2001) (applying a

substantive canon of construction at Step One); accord

Arangure v. Whitaker, 911 F.3d 338, 340 (6th Cir. 2018)

(Thapar, J.) (“{C]anons are traditional tools of statutory

interpretation that take precedence over Chevron

deference.” (cleaned up)); OfficeMax, Inc. v. United

States, 428 F.3d 583, 592 (6th Cir. 2005) (Sutton, J.)

(“[T]he question whether a statute is ambiguous arises

after, not before, a court applies traditional canons of

interpretation.”). And lenity is a canon of construction.

See United States v. Lanier, 520 U.S. 259, 266 (1997);

Dixson v. United States, 465 U.S. 482, 500 n.19 (1984);

United States v. Campos-Serrano, 404 U.S. 293, 298

16

(1971). So when lenity applies, a court never reaches

Chevron Step Two. In other words, when “the canons

supply an answer, Chevron leaves the stage.” Epic Sys.,

138 S. Ct. at 1630 (cleaned up).

This Court should thus make plain that lenity applies

to a statute like the one here—that is, “a statute whose

provisions have both civil and criminal application.” WEC

Carolina Energy Sols. LLC v. Miller, 687 F.3d 199, 204

(4th Cir. 2012) (citing Leocal, 543 U.S. 11 n.8); see also

A TTA 4°99 1FO s190n\

WO. 194, 190 (LygU/

Crandon v. United States, 494 U

(applying lenity in civil case in which “governing

standard” came from criminal statute, even though a

Department of Justice memorandum decided otherwise);

Scheidler v. Nat'l Org. for Women, Inc., 5387 U.S. 393, 408-

09 (2003) (applying rule of lenity in civil case under Hobbs

Act). In fact, in Leocal, the Court never once mentioned

Chevron even while reviewing a BIA decision that

construed the term “crime of violence.” 543 U.S. at 8-13.

But the Court did go out of its way to stress that the “rule

of lenity applie[d].” Jd. at 11 n.8.

Were a court to apply lenity only in “pure” criminal

cases, then many statutes would find themselves with two

meanings: a criminal meaning colored by lenity and a civil

meaning shaped without it. But again, statutes are not

“chameleon[s].” Clark, 548 U.S. at 382. A dual-application

statute cannot be “subject to change” depending on the

context in which it is applied. Jd.; see also, e.g., FCC v.

ABC, 347 U.S. 284, 296 (1954) (“There cannot be one

construction for the Federal Communications

Commission and another for the Department of Justice.”).

So a statute that has “criminal consequences,” even when

construed in a “civil setting,” must trigger the rule of

lenity. United States v. Thompson/Ctr. Arms Co., 504

US. 505, 517-18 (1992) (Breyer, J., plurality op.).

17

In short, even if the Court were to conclude that

Chevron can apply to dual civil-criminal statutes at all (like

the INA provisions here), lenity would knock out Chevron

Step Two. Either way, the effect is the same: Courts

should never defer to an agency’s interpretation of a dual

civil-criminal statute.

2. That outcome matches lenity’s substantial history.

Lenity is the modern label for one of the common law’s

oldest ideas—that “penal laws should be construed

strictly.” The Adventure, 1 F. Cas. 202, 204 (CC Va. 1812)

(No. 98) (Marshall, C.J.). Our country’s courts have long

felt an “instinctive distaste against men languishing in

prison unless the lawmaker has clearly said that they

should.” HENRY FRIENDLY, BENCHMARKS 209 (1967). In

fact, Chief Justice Marshall once observed that this

distaste is “perhaps not much less old than construction

itself.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76,

95,5 L.Ed. 387 (1820). Likewise, Justice Scalia lauded

lenity as a “venerable” and “ancient canon.” Bryan v.

United States, 524 U.S. 184, 205 (1998) (Scalia, J.,

dissenting); Taylor v. United States, 495 U.S. 575, 608

(1990) (Scalia, J., concurring in part and concurring in the

judgment). Lenity, then, holds an established place in

American jurisprudence.

Chevron deference had a far more “recent

provenance.” Aposhian v. Wilkinson, 989 F.3d 890, 899

(10th Cir. 2021) (Tymkovich, J., dissenting). Less than a

century ago, the Court was still wrestling over whether

agencies could decide questions of fact, never mind law.

Crowell v. Benson, 285 U.S. 22 (1938). Chevron itself is

only about forty years old; before it, the best deference

agencies received was only proportional to the

persuasiveness of their argument. Skidmore v. Swift &

Co., 323 U.S. 184 (1944). And unlike lenity—which has

18

remained largely stable over the years—Chevron

deference continues to shift and change. The Court would

thus be ill-advised to weaken a doctrine tracing its roots

to Blackstone for the sake of a doctrine drawing from a

“dramatic shift in power over the last 50 years.” City of

Arlington, 569 U.S. at 327 (Roberts, C.J., dissenting).

3. But this is not merely a case of “oldest doctrine

wins.” Putting lenity at the forefront advances some of

our nation’s most important values. Two come

immediately to mind.

First, lenity is “not merely a convenient maxim of

statutory construction”; “it is rooted in fundamental

principles of due process.” Dunn v. United States, 442

US. 100, 112 (1979). Lenity ensures that we know what

specific conduct is criminal. See U.S. CONST. AMENDS. V,

XIV. Citizens deserve “fair warning” of what might be

criminal in “language that the common world will

understand.” McBoyle v. United States, 283 U.S. 25, 27

(1981). Clear laws promote a stable society. They also

target criminalized conduct narrowly—and for good

reasons. For example, people may avoid a reporting

requirement for many “innocent” reasons, so this Court

concluded—after using lenity—that a double scienter

mens rea requirement applied to a financial-reporting

crime. See Ratzlaf v. United States, 510 U.S. 135, 144-46

(1994). Ditching lenity and applying Chevron could

produce a chilling effect on other everyday “innocent”

transactions, too. Id.

Second, lenity promotes the rule of law. Lenity helps

“minimize the risk of selective or arbitrary enforcement.”

United States v. Kozminski, 487 U.S. 931, 952 (1988).

Allowing Chevron to supersede lenity commands the

opposite result, with agencies able “to create (and

uncreate) new crimes at will” based on statutory

[OCR skipped on page(s) 31-34]

[Read from a scan; the first 30 pages.]