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

Nos. 22-23 and 22-331

In The

Supreme Court of the United States

____________________

JEAN FRANCOIS PUGIN,

v.

Petitioner,

MERRICK B. GARLAND, Attorney General,

Respondent.

____________________

MERRICK B. GARLAND, Attorney General,

Petitioner,

v.

FERNANDO CORDERO-GARCIA,

Respondent.

____________________

On Writs of Certiorari To the United States

Courts of Appeals For the Fourth and Ninth

Circuits

____________________

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT

OF PETITIONER PUGIN AND

RESPONDENT CORDERO-GARCIA

____________________

OLIVER J. DUNFORD

Pacific Legal Foundation

4440 PGA Blvd., Ste. 307

Palm Beach Gardens

FL 33410

916.503.9060

ODunford@pacificlegal.org

CALEB J. KRUCKENBERG

Counsel of Record

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

202.888.6881

CKruckenberg@pacificlegal.org

i

TABLE OF CONTENTS

Table of Authorities .................................................... ii

IDENTITY AND INTEREST OF AMICUS CURIAE 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT………………………………………………4

I. Because Chevron’s Premises Are Absent,

Routine Deference to the BIA Is Precluded. .... 4

A. The BIA lacks the expertise relevant

here—legal interpretation. ......................... 5

B. The BIA has no responsibility for making

policy decisions. .......................................... 8

C. The BIA’s interpretations lack consistency

and cause confusion. ................................... 9

II. This Court Should Clarify When BIA Decisions,

Like the One Here, Are Not Entitled to

Deference. ........................................................ 10

III. This Court Must Restore the Primacy of the

Rule of Lenity in Agency Adjudication. .......... 12

A. The Rule of Lenity Requires Any Doubts Be

Resolved Against Removal. ...................... 13

B. When the Rule of Lenity Applies to Resolve

Statutory Ambiguity, Chevron Deference Is

Precluded. ................................................. 16

C. The Courts of Appeals Continue to Discard

the Rule of Lenity in Favor of Reflexive

Deference to the BIA. ............................... 19

CONCLUSION.......................................................... 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abramski v. United States,

573 U.S. 169 (2014) ............................................. 21

The Adventure, 1 F.Cas. 202

(No. 93) (CC Va. 1812) ......................................... 13

Aposhian v. Wilkinson,

989 F.3d 890 (10th Cir. 2021) ............................. 22

Arteaga-De Alvarez v. Holder,

704 F.3d 730 (9th Cir. 2012) ................................. 7

Babbitt v. Sweet Home Chapter,

Communities for Great Ore.,

515 U.S. 687 (1995) ....................................... 20−21

Barber v. Gonzales,

347 U.S. 637 (1954) ............................................. 14

Barber v. Thomas,

560 U.S. 474 (2010) ............................................. 21

Benslimane v. Gonzales,

430 F.3d 828 (7th Cir. 2005) ................................. 8

Bureau of Alcohol, Tobacco & Firearms

v. Fed. Lab. Rels. Auth.,

464 U.S. 89 (1983) ................................................. 7

Cargill v. Garland,

57 F.4th 447 (5th Cir. 2023) ......................... 17, 21

iii

Chevron U.S.A., Inc.

v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) ......................... 3−9, 12, 16−22

City of Arlington v. FCC,

569 U.S. 290 (2013) ............................................... 9

Clark v. Martinez,

543 U.S. 371 (2005) ............................................. 15

Collins v. Yellen,

141 S.Ct. 1761 (2021) .......................................... 22

Delgadillo v. Carmichael,

332 U.S. 388 (1947) ............................................. 16

Denis v. Att’y Gen. of U.S.,

633 F.3d 201 (3d Cir. 2011) ................................. 10

Epic Sys. Corp. v. Lewis,

138 S.Ct. 1612 (2018) ............................ 5, 8, 11, 18

In re Espinoza-Gonzalez,

22 I. & N. Dec. 889 (BIA 1999) ........................... 11

Esquivel-Quintana v. Sessions,

137 S.Ct. 1562 (2017) .......................................... 21

Flores v. Att’y Gen. United States,

856 F.3d 280 (3d Cir. 2017) ................................. 19

Fong Haw Tan v. Phelan,

333 U.S. 6 (1948) ............................................. 4, 14

Gen. Dynamics Land Sys., Inc. v. Cline,

540 U.S. 581 (2004) ............................................. 18

iv

Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives,

140 S. Ct. 789 (2020) .......................................... 16

Gun Owners of Am., Inc. v. Garland,

19 F.4th 890 (6th Cir. 2021) ............................... 21

Higgins v. Holder,

677 F.3d 97 (2d Cir. 2012) ................................... 19

Hylton v. U.S. Att’y Gen.,

992 F.3d 1154 (11th Cir. 2021) ..................... 17−18

INS v. Aguirre-Aguirre,

526 U.S. 415 (1999) ........................................... 4−7

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ........................................ 7, 10

INS v. St. Cyr.,

533 U.S. 289 (2001) ............................................. 18

Kisor v. Wilkie,

139 S.Ct. 2400 (2019) .......................................... 17

Leocal v. Ashcroft,

543 U.S. 1 (2004) ................................................. 14

Liparota v. United States,

471 U.S. 419 (1985) ............................................. 15

Lucia v. SEC,

138 S.Ct. 2044 (2018) ............................................ 1

Lugo v. Holder,

783 F.3d 119 (2d Cir. 2015) ................................... 9

v

McBoyle v. United States,

283 U.S. 25 (1931) ............................................... 15

New York Legal Assistance Grp.

v. Bd. of Immigr. Appeals,

987 F.3d 207 (2d Cir. 2021) ................................... 9

Pugin v. Garland,

19 F.4th 437 (4th Cir. 2021) ................ 3, 12−13, 20

Rapanos v. United States,

547 U.S. 715 (2006) ............................................... 1

Sackett v. EPA,

566 U.S. 120 (2012) ............................................... 1

Sessions v. Dimaya,

138 S.Ct. 1204 (2018) ......................................... 14

Silva v. Garland,

27 F.4th 95 (1st Cir. 2022) ............................ 19−21

Solid Waste Agency of N. Cook Cnty.

v. U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) ............................................. 18

Szonyi v. Barr,

942 F.3d 874 (9th Cir. 2019) ................................. 9

Trung Thanh Hoang v. Holder,

641 F.3d 1157 (9th Cir. 2011) ............................. 11

U.S. Army Corps of Eng’rs v. Hawkes

Co., Inc.,

578 U.S. 590 (2016) ............................................... 1

vi

United States v. Apel,

571 U.S. 359 (2014) ............................................. 21

United States v. Bass,

404 U.S. 336 (1971) ....................................... 15−16

United States v. Nasir,

17 F.4th 459 (3d Cir. 2021) .......................... 15−17

United States v. Santos,

553 U.S. 507 (2008) ................................. 13−14, 16

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) ......................... 13, 16

In re Valenzuela Gallardo,

25 I. & N. Dec. 838 (BIA 2012) ........................... 11

In re Valenzuela Gallardo,

27 I. & N. Dec. 449 (BIA 2018) ........................... 12

Valenzuela Gallardo v. Barr,

968 F.3d 1053

(9th Cir. 2020)................ 3, 9, 12−13, 17, 19−20, 22

Valenzuela Gallardo v. Lynch,

818 F.3d 808 (9th Cir. 2016) ............................... 11

Whitman v. United States,

574 U.S. 1003 (2014) .................................... 20−21

Wooden v. United States,

142 S.Ct. 1063 (2022) ............................. 13, 15−16

Statutes

8 U.S.C. § 1101(a)(43)(S) ...................................... 2, 11

vii

Va. Code § 18.2-19(ii) ................................................ 11

Other Authorities

Hickman, Kristin E. & Nielson, Aaron

L., Narrowing Chevron’s Domain,

70 Duke L.J. 931 (2021) ........................................ 8

Sweeney, Maureen A.,

Enforcing/Protection: The Danger of

Chevron in Refugee Act Cases,

71 Admin. L. Rev. 127 (2019) ............................ 6−7

Wadhia, Shoba Sivaprasad & Walker,

Christopher J., The Case Against

Chevron Deference in Immigration

Adjudication,

70 Duke L.J. 1197 (2021) .................................. 5, 8

1

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

Founded in 1973, Pacific Legal Foundation is a

nonprofit,

tax-exempt,

California

corporation

established for the purpose of litigating matters

affecting the public interest. PLF provides a voice in

the courts for Americans who believe in limited

constitutional government, private property rights,

and individual freedom.

PLF is the most experienced public-interest legal

organization defending the constitutional principle of

separation of powers in the arena of administrative

law. PLF’s attorneys have participated as lead counsel

or counsel for amici in several cases involving the role

of the Judicial Branch as an independent check on the

Executive and Legislative branches under the

Constitution’s Separation of Powers. See, e.g., Lucia v.

SEC, 138 S.Ct. 2044 (2018) (SEC administrative-law

judge is “officer of the United States” under the

Appointments Clause); U.S. Army Corps of Eng’rs v.

Hawkes Co., Inc., 578 U.S. 590 (2016) (judicial review

of agency interpretation of Clean Water Act); Sackett

v. EPA, 566 U.S. 120 (2012) (same); Rapanos v. United

States, 547 U.S. 715 (2006) (agency regulations

defining “waters of the United States”).

This case implicates significant questions about

administrative overreach and judicial abdication:

1 Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

Amicus Curiae, its members, or its counsel made a monetary

contribution to its preparation or submission.

2

whether an administrative agency may claim the

judicial power to say what the law is; whether, and to

what extent, the quasi-judicial rulings of an

administrative agency warrant deference; and,

finally, whether courts are obligated to reject

deference when an administrative interpretation

trumps the rule of lenity, thereby authorizing the

permanent removal of noncitizens. PLF offers a

discussion of the relevant constitutional principles

and the dire consequences of ignoring them, and urges

this Court to restore the rule of lenity, and not

administrative deference, to its proper place.

SUMMARY OF ARGUMENT

In the Immigration and Nationality Act (INA),

Congress established harsh consequences for

noncitizens convicted of certain criminal offenses.

Those who have committed an offense “relating to . . .

the obstruction of justice” face permanent banishment

from this country. See 8 U.S.C. § 1101(a)(43)(S). That

is true even if they have become lawful permanent

residents, had children who are citizens of the United

States, and worked and lived as every other American

for years. How Courts go about resolving the statutory

question of which crimes qualify for these harsh

consequences, therefore, matters greatly for

noncitizens, their families, and indeed every person in

this country who values fair and predictable outcomes

in our immigration system.

This Court is faced with two different views of

what that statutory provision means, and its answer

to the question presented will likely turn on its

deference to the Department of Justice’s own reading

of the law. The Ninth Circuit, reading the statute on

3

its own, and without deferring to the Board of

Immigration Appeals (BIA), held that obstruction of

justice offenses must have “a nexus to an ongoing or

pending proceeding.” Valenzuela Gallardo v. Barr,

968 F.3d 1053, 1066 (9th Cir. 2020). The Fourth

Circuit, however, deferred to the BIA’s reading of the

statute—even though the Board’s reading was not the

most obvious or natural understanding of Congress’

words, the BIA is a quasi-judicial body employed by

the very prosecutor initiating removal proceedings,

and the rule of lenity compels resolution of ambiguity

in the challenger’s favor. See Pugin v. Garland, 19

F.4th 437, 449 (4th Cir. 2021). Thus, the Fourth

Circuit accepted the BIA’s claim that obstruction of

justice requires only obstruction of a “reasonably

foreseeable” proceeding. Id.

This Court should reject a methodology that

results in removal of a noncitizen purely out of

deference to the Department of Justice. Such a

methodology is at odds with the separate roles

occupied by the judiciary, Congress, and the Executive

Branch. Deference to the BIA is simply improper.

First, deference is improper here because none of

the central premises of Chevron deference apply to the

inherently legal decisions made by the BIA. See

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

467 U.S. 837 (1984). The BIA lacks appropriate

expertise, does not engage in accountable or

predictable policymaking, and, rather than promoting

uniformity,

sows

unpredictability

into

our

immigration laws.

Second, deference to the enforcement agency’s

punitive reading of the INA runs afoul of the

4

Constitution’s baseline presumption of lenity. To

respect the constitutional imperatives of fair notice,

the separation of powers, and our fundamental

preference for liberty, the rule of lenity compels that

the “drastic measure” of removal arises only when the

will of Congress is clear, based on “the narrowest of

several possible meanings of the words used.” See

Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).

Accordingly, when a court finds ambiguity in cases

like this, it must apply the rule of lenity—not

deference—to an administrative interpretation.

This Court is faced with a stark choice. It can defer

to the BIA, as the Executive Branch now urges in its

briefing, or it can do what courts should—interpret

the law on its own. By choosing the latter route, this

Court not only serves its constitutional role under

Article III, but it also safeguards due process and the

separation of powers by rejecting the BIA’s textually

dubious and overly punitive analysis.

ARGUMENT

I.

Because Chevron’s Premises Are Absent,

Routine Deference to the BIA Is Precluded.

In INS v. Aguirre-Aguirre, this Court concluded

“that principles of Chevron deference are applicable to

th[e] statutory scheme” set out in the INA. 526 U.S.

415, 424 (1999). In the Court’s view, the Executive

Branch may “exercise especially sensitive political

functions that implicate questions of foreign

relations,” and, therefore, the “judiciary is not well

positioned to shoulder primary responsibility for

assessing the likelihood and importance of such

diplomatic repercussions” that might arise from

5

interpretation of the INA. Id. at 424–25 (citation

omitted). Thus, in that case, the Court concluded that

deference even to the BIA’s interpretation of law was

warranted. See id.

But there are good reasons to question whether

deference to the BIA is ever appropriate, and this

Court should at least clarify that deference is hardly

automatic. Indeed, deference to the BIA’s statutory

interpretation serves none of the core premises of

Chevron itself, and this Court’s most recent decisions

cast doubt on the continued viability of AguirreAguirre’s holding.

When an agency demands deference, a court

should first determine whether “Chevron’s essential

premises” are present. Epic Sys. Corp. v. Lewis, 138

S.Ct. 1612, 1629 (2018). If one or more of these

premises are missing, no deference may be afforded.

Here, when deference to the BIA is sought, all of

Chevron’s premises are “simply missing.” Id. Indeed,

the “case against Chevron deference in administrative

adjudication has perhaps its greatest force when it

comes to immigration adjudication,” because “the

theoretical foundations for Chevron deference

crumble in this context.” Shoba Sivaprasad Wadhia &

Christopher J. Walker, The Case Against Chevron

Deference in Immigration Adjudication, 70 Duke L.J.

1197, 1201 (2021).

A. The BIA lacks the expertise relevant

here—legal interpretation.

First, while agency expertise is considered one of

the bedrock rationales for Chevron deference, the BIA

has a demonstrable lack of expertise in interpreting

6

Congressionally enacted laws. As the Chevron Court

said, when Congress has left a statutory ambiguity, it

makes sense to infer that it “consciously desired the

[agency] to strike the balance at this level, thinking

that those with great expertise and charged with

responsibility for administering the provision would

be in a better position to do so.” 467 U.S. at 865.

But the BIA is ultimately a quasi-judicial body,

and the “expertise required to interpret the INA . . .

does not require familiarity with technical or scientific

information, nor with the workings of an industry, nor

even, for the most part, with the mechanics of

immigration enforcement.” Maureen A. Sweeney,

Enforcing/Protection: The Danger of Chevron in

Refugee Act Cases, 71 Admin. L. Rev. 127, 174 (2019).

Legal interpretation “demands expertise in legal

analysis and the application of law to facts—precisely

the sort of expertise that federal courts have.” Id. at

175. Indeed, as in this case, the interpretive questions

decided by the BIA often involve the scope of local

criminal law, which is far outside the BIA’s

competence.

In contrast, when this Court did defer to the BIA’s

interpretation, it did so because of the Executive

Branch’s expertise concerning “especially sensitive

political functions that implicate questions of foreign

relations.” Aguirre-Aguirre, 526 U.S. at 425 (citation

omitted). There, the Court considered whether to

“deem certain violent offenses committed in another

country as political in nature, and to allow the

perpetrators to remain in the United States, [which]

may affect our relations with that country or its

neighbors.” Id. And while foreign-relations expertise

7

might have been dispositive in the narrow question

before this Court in Aguirre-Aguirre, these interests

rarely arise. The “vast majority of immigration cases

require expertise, not in foreign affairs, but rather in

the legal interpretation of a complex statutory and

regulatory scheme.” Sweeney, 71 Admin. L. Rev. at

175. In ordinary cases like this one, which implicate

only whether a noncitizen has committed a domestic

offense triggering removal, the sole question involves

a statutory inquiry about Congressional intent.

Moreover, even if the BIA had relevant expertise

here, its demand for deference must still be

scrutinized. Accordingly, to decide whether deference

is appropriate, courts must consider how an agency

goes about making its decision. The “deference owed

to an expert tribunal cannot be allowed to slip into a

judicial inertia which results in the unauthorized

assumption by an agency of major policy decisions

properly made by Congress.” Bureau of Alcohol,

Tobacco & Firearms v. Fed. Lab. Rels. Auth., 464 U.S.

89, 97 (1983) (citation omitted). And lower courts have

often recognized that Chevron deference to the BIA

depends, in large part, on how thorough the Board’s

reasoning was. See Arteaga-De Alvarez v. Holder, 704

F.3d 730, 739 (9th Cir. 2012). When the BIA’s decision

“is not thoroughly reasoned” it is not entitled to any

weight. Id. at 740.

The BIA’s process reveals only cursory and

superficial legal reasoning. Indeed, the BIA has, to put

it lightly, been subject to stinging criticism for the

shoddy quality of its analysis. See, e.g., INS v.

Cardoza-Fonseca, 480 U.S. 421, 452 (1987)

(Blackmun, J., concurring) (bemoaning the BIA’s

8

“years of seemingly purposeful blindness” in

interpreting statutory provision that had been

“entrusted to its care”); Benslimane v. Gonzales, 430

F.3d 828, 829–30 (7th Cir. 2005) (collecting cases

where the “adjudication . . . at the administrative level

has fallen below the minimum standards of legal

justice” and noting that the “criticisms of the Board

and of the immigration judges have frequently been

severe”). The BIA’s consistently deficient analysis is

the predictable result of an organization overwhelmed

by a staggering caseload, which is “further

exacerbated by the fact that immigration judges and

BIA members face pressure to meet quotas and follow

guidelines set by the attorney general.” Wadhia &

Walker, 70 Duke L.J. at 1229–30.

B. The BIA has no responsibility for making

policy decisions.

“Another justification the Chevron Court offered

for deference is that ‘policy choices’ should be left to

Executive Branch officials ‘directly accountable to the

people.’” Epic Sys. Corp., 138 S.Ct. at 1630 (quoting

Chevron, 467 U.S. at 865). But the BIA is not a policy

arm of the Executive. “Rulemaking and adjudication

are different, with perhaps the most important

distinction being public notice and opportunity for

comment.” Kristin E. Hickman & Aaron L. Nielson,

Narrowing Chevron’s Domain, 70 Duke L.J. 931, 965

(2021). “A process that requires an agency to interact

with broad segments of society and explain why it has

acted in view of concerns raised by the general public,

all else being equal, typically should yield more

legitimate outcomes.” Id. at 967. But the BIA’s

decisions do not solicit public comments. Instead, the

9

BIA has jealously guarded most of them from public

view. See New York Legal Assistance Grp. v. Bd. of

Immigr. Appeals, 987 F.3d 207, 210–12 (2d Cir. 2021)

(noting that “the balance of the BIA’s [more than

30,000 yearly] unpublished decisions are not publicly

available,” and the agency contends that it need not

release those decisions to the public).

C. The BIA’s interpretations lack

consistency and cause confusion.

Finally, deference is sometimes justified as a

means of ensuring uniformity in application of the

law. See City of Arlington v. FCC, 569 U.S. 290, 306–

07 (2013) (“[A]d hoc judgment[s] regarding

congressional intent” from courts “would render the

binding effect of agency rules unpredictable and

destroy the whole stabilizing purpose of Chevron.”).

But, as this case illustrates, BIA decisions are often

destabilizing. See Valenzuela Gallardo, 968 F.3d at

1058 (recounting BIA’s failed attempts to define

“obstruction of justice”). The BIA even overrules

circuit precedent concerning ambiguous statutes,

creating turmoil in the law. See, e.g., Szonyi v. Barr,

942 F.3d 874, 892 (9th Cir. 2019) (deferring to BIA

ruling, even though it contradicted Ninth Circuit

precedent). Other times the BIA reverses itself, or

takes sides in a circuit split, which is obviously “not a

sustainable way to administer uniform justice in the

area of immigration.” Lugo v. Holder, 783 F.3d 119,

121 (2d Cir. 2015) (citation omitted). Uniformity is

simply not a feature of BIA adjudication.

10

II.

This Court Should Clarify When BIA

Decisions, Like the One Here, Are Not

Entitled to Deference.

That deference may otherwise be permissible as a

general matter hardly means a court should defer in

a given case. See, e.g., Cardoza-Fonseca, 480 U.S. at

448–49 (refusing to defer to the BIA). But the lower

courts continue to reflexively defer to the BIA, even

when it is demonstrably improper. This Court should

at least clarify why deference in situations like this

are improper.

First, as discussed above, the BIA has not

exercised any special expertise in this case. At its root,

the BIA has tried to interpret a statutory question

concerning the scope of local criminal law.

Accordingly, the Third Circuit rejected deference to

the BIA’s understanding of the phrase “obstruction of

justice” because interpretation of that phrase was not

“an obscure ambiguity or a matter committed to

agency discretion,” and was instead a question “very

much a part of t[he] Court’s competence.” Denis v.

Att’y Gen. of U.S., 633 F.3d 201, 209 (3d Cir. 2011)

(citation omitted). The agency thus lacks relevant

experience to warrant deference.

“An additional reason for rejecting the [BIA’s]

request for heightened deference to its position is the

inconsistency of the positions the BIA has taken

through the years.” Cardoza-Fonseca, 480 U.S. at 446

n.30 & 447. Not only does inconsistency undercut the

presumption that the agency applies expertise, it also

torpedoes any pretense to political accountability.

When “the Executive seems of two minds, . . .

whatever argument might be mustered for deferring

11

to the Executive on grounds of political accountability,

surely [] becomes a garble when the Executive speaks

from both sides of its mouth, articulating no single

position on which it might be held accountable.” Epic

Sys. Corp., 138 S.Ct. at 1630.

The BIA’s reasoning here is anything but

consistent. According to the INA, a noncitizen is

removable after conviction of an “aggravated felony”

offense “relating to . . . obstruction of justice.” 8 U.S.C.

§ 1101(a)(43)(S). But over the years the BIA has

seesawed between interpretations that would either

(1) treat offenses like Mr. Pugin’s single misdemeanor

offense (accessory after the fact to another person’s

felony, Va. Code § 18.2-19(ii)) as an aggravated felony

under the INA or (2) exempt from the harsh

consequences of that determination. Originally, the

BIA concluded that aggravated felony offenses

obstructed ongoing proceedings, an interpretation

that would exempt both of the petitioners’ convictions

from the INA’s reach. See In re Espinoza-Gonzalez, 22

I. & N. Dec. 889, 893 (BIA 1999). The Ninth Circuit

accepted that interpretation as binding law. See

Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1164

(9th Cir. 2011).

Yet the BIA changed course and spent nearly 10

years trying to undo its previous interpretation. In

2012, the BIA attempted to overrule itself—and the

Ninth Circuit—by interpreting the offense to require

interference only with an abstract “process of justice.”

In re Valenzuela Gallardo, 25 I. & N. Dec. 838, 841

(BIA 2012). The Ninth Circuit subsequently rejected

that interpretation as being so vague as to be likely

unconstitutional. Valenzuela Gallardo v. Lynch, 818

12

F.3d 808, 819 (9th Cir. 2016). So the BIA tried again,

saying the interference need only affect a “reasonably

foreseeable” proceeding. In re Valenzuela Gallardo, 27

I. & N. Dec. 449, 460 (BIA 2018). The Ninth Circuit

again rejected the interpretation, this time as a

matter of plain statutory interpretation. See

Valenzuela Gallardo, 968 F.3d at 1069. Yet it is the

BIA’s latter interpretation—which the Ninth Circuit

found unreasonable, even under a Chevron analysis—

that the Fourth Circuit adopted here. See Pugin, 19

F.4th at 450. The only consistent line here seems to be

the BIA’s own waffling.

To round things out, no uniformity interests can

justify deference. The BIA’s effort in Valenzuela

Gallardo has created profound confusion and

inconsistency across the country. While the BIA failed

twice to apply its definition in the Ninth Circuit

against Mr. Valenzuela Gallardo himself, its decision

nevertheless bound Mr. Pugin in the Fourth Circuit.

Thus, similarly situated noncitizens face drastically

different outcomes depending on where removal

proceedings are initiated. This Court should not allow

reflexive deference to the BIA to cause such confusion

and uncertainty.

III. This Court Must Restore the Primacy of the

Rule of Lenity in Agency Adjudication.

Even if the law at issue is ambiguous, this Court

must apply the constitutionally derived rule of lenity

and not reflexive deference to the BIA’s

interpretation. But the circuit courts seem to feel

bound to do the opposite. In Valenzuela Gallardo, for

instance, the Ninth Circuit recognized that

“[d]eferring to the BIA’s construction of a statute with

13

criminal applications raises serious constitutional

concerns[,]” yet it dodged the ultimate deference

question. See 968 F.3d at 1059. Meanwhile, the

Fourth Circuit breezed past the rule of lenity without

hesitation. See Pugin, 19 F.4th at 442. This is part of

a disturbing and unconstitutional trend across the

country,

where

courts of appeals discard

constitutional principles enshrined in the rule of

lenity for the sake of expediency. This Court must

restore the primacy of the rule of lenity in such

contexts.

A. The Rule of Lenity Requires Any Doubts

Be Resolved Against Removal.

“The ‘rule of lenity’ is a new name for an old idea—

the notion that ‘penal laws should be construed

strictly.’” Wooden v. United States, 142 S.Ct. 1063,

1082 (2022) (Gorsuch, J., concurring, joined by

Sotomayor, J.) (quoting The Adventure, 1 F.Cas. 202,

204 (No. 93) (CC Va. 1812) (Marshall, C. J.)). The rule

is a tool of construction “perhaps not much less old

than construction itself.” United States v. Wiltberger,

18 U.S. (5 Wheat.) 76, 95 (1820). In simple terms,

“lenity requires ambiguous criminal laws to be

interpreted in favor of the defendants subjected to

them.” United States v. Santos, 553 U.S. 507, 514

(2008) (plurality op.). But it also applies in noncriminal settings. Indeed, “[h]istorically, lenity

applied to all ‘penal’ laws—that is, laws inflicting any

form of punishment, including ones we might now

consider ‘civil’ forfeitures or fines.” Wooden, 142 S.Ct.

at 1086 n.5 (Gorsuch, J., concurring) (citing cases). “In

fact, if the severity of the consequences counts when

deciding the standard of review, shouldn’t we also

14

take account of the fact that today’s civil laws

regularly impose penalties far more severe than those

found in many criminal statutes?” Sessions v. Dimaya,

138 S.Ct. 1204, 1229 (2018) (Gorsuch, J., concurring).

It is no wonder then that this Court has long

applied the rule of lenity in removal proceedings. See

Fong Haw Tan, 333 U.S. at 10. Accordingly, a court

must “resolve [] doubts in favor” of an alien facing

removal and “will not assume that Congress meant to

trench on his freedom beyond that which is required

by the narrowest of several possible meanings of the

words used.” Id. This is “because deportation is a

drastic measure and at times the equivalent of

banishment of exile. It is the forfeiture for misconduct

of a residence in this country. Such a forfeiture is a

penalty.” Id. (citation omitted); accord Barber v.

Gonzales, 347 U.S. 637, 642–43 (1954) (“Although not

penal in character, deportation statutes as a practical

matter may inflict the equivalent of banishment or

exile and should be strictly construed.”) (citation

omitted).

Of course, the rule of lenity applies most obviously

when a statute has criminal consequences. See

Santos, 553 U.S. at 514. And, as this Court

unanimously recognized in Leocal v. Ashcroft, when a

statute “has both criminal and noncriminal

applications,” “the rule of lenity applies.” 543 U.S. 1,

12 n.8 (2004). This is “[b]ecause [a court] must

interpret the statute consistently,” regardless of

“whether [it] encounter[s] its application in a criminal

or noncriminal context.” Id. “In other words, when

deciding which of two plausible statutory

constructions to adopt, a court must consider the

15

necessary consequences of its choice. If one of them

would raise a multitude of constitutional problems,

the other should prevail—whether or not those

constitutional problems pertain to the particular

litigant before the Court.” Clark v. Martinez, 543 U.S.

371, 380–81 (2005).

Three “core values of the Republic” underlie the

rule of lenity: (1) due process; (2) the separation of

governmental powers; and (3) “our nation’s strong

preference for liberty.” United States v. Nasir, 17

F.4th 459, 473 (3d Cir. 2021) (en banc) (Bibas, J.,

concurring). Due process requires that “a fair warning

should be given to the world in language that the

common world will understand, of what the law

intends to do if a certain line is passed. To make the

warning fair, so far as possible the line should be

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

(1931). And “lenity’s emphasis on fair notice isn’t

about indulging a fantasy. It is about protecting an

indispensable part of the rule of law—the promise

that, whether or not individuals happen to read the

law, they can suffer penalties only for violating

standing rules announced in advance.” Wooden, 142

S.Ct. at 1083 (Gorsuch, J., concurring).

Lenity also protects the separation of powers: the

legislature sets penalties for certain conduct, the

executive prosecutes alleged violations and,

ultimately, the judiciary imposes applicable

punishment. See United States v. Bass, 404 U.S. 336,

348 (1971). Lenity “strikes the appropriate balance

between the legislature, the prosecutor, and the court”

in defining liability. Liparota v. United States, 471

U.S. 419, 427 (1985). “It ‘places the weight of inertia

16

upon the party that can best induce Congress to speak

more clearly,’ forcing the government to seek any

clarifying changes to the law rather than impose the

costs of ambiguity on presumptively free persons.”

Wooden, 142 S.Ct. at 1083 (Gorsuch, J., concurring)

(quoting Santos, 553 U.S. at 514). “In this way, the

rule helps keep the power of punishment firmly ‘in the

legislative, not in the judicial department.’” Id.

(quoting Wiltberger, 5 Wheat. at 95.). Thus, as this

Court has said in the removal context, “We will not

attribute to Congress a purpose to make [a

noncitizen’s] right to remain here dependent on

circumstances so fortuitous and capricious as those

upon which the Immigration Service has here seized.”

Delgadillo v. Carmichael, 332 U.S. 388, 391 (1947).

Finally, and “perhaps most importantly,” lenity

embodies “the instinctive distaste[] against” laws

imposing punishment “‘unless the lawmaker has

clearly said they should.’” Nasir, 17 F.4th at 474

(Bibas, J., concurring) (quoting Bass, 404 U.S. at 347

(citation omitted)). By promoting liberty, lenity “fits

with one of the core purposes of our Constitution, to

‘secure the Blessings of Liberty’ for all[.]” Id. (quoting

U.S. Const. pmbl.); see also Wooden, 142 S.Ct. at 1081

(Gorsuch, J., concurring) (“Under [the rule of lenity]

any reasonable doubt about the application of a penal

law must be resolved in favor of liberty.”).

B. When the Rule of Lenity Applies to

Resolve Statutory Ambiguity, Chevron

Deference Is Precluded.

“[W]hen liberty is at stake,” deference “has no role

to play.” Guedes v. Bureau of Alcohol, Tobacco,

Firearms & Explosives, 140 S.Ct. 789, 790 (2020)

17

(Gorsuch, J., statement regarding denial of certiorari).

The “primary reason for Chevron is that it allows the

executive branch to make policy decisions through the

accrued expertise of administrative agencies. But in

exchange, Chevron deference shifts the responsibility

for lawmaking from the Congress to the Executive, at

least in part. That tradeoff cannot be justified for

criminal statutes, in which the public’s entitlement to

clarity in the law is at its highest.” Cargill v. Garland,

57 F.4th 447, 466 (5th Cir. 2023) (en banc).

After this Court’s decision in Kisor v. Wilkie, 139

S.Ct. 2400 (2019), “awoke [courts] from [their]

slumber of reflexive deference,” the rule of lenity has

“thus been thrust to the fore.” Nasir, 17 F.4th at 472

(Bibas, J., concurring). “Before deferring, [a court]

must first exhaust [] traditional tools of statutory

construction. . . . And one tool among many stands out

as well suited to the task: the rule of lenity.” Id.

Any other conclusion “raises serious constitutional

concerns” about the proper role of courts. Valenzuela

Gallardo, 968 F.3d at 1059. “The rule of lenity and

Chevron deference are typically mutually exclusive[.]”

Id. at 1060. Lenity, of course, reflects the primacy of

the legislature in imposing punishment. Id. n.3.

Chevron just reflects judicial policy “to permit

agencies to fill in the details of a statute.” Id. When

the policy of Chevron deference collides with the

constitutional imperative reflected by the rule of

lenity—lenity prevails. Nasir, 17 F.4th at 474; see also

Hylton v. U.S. Att’y Gen., 992 F.3d 1154, 1158 (11th

Cir. 2021) (applying lenity instead of deference).

And all of this flows from the language of Chevron

itself, because at the outset, a court “evaluate[s]

18

whether Congress has written clearly,” and “[t]o

determine whether a statute has a plain meaning,” a

court asks “whether its meaning may be settled by the

‘traditional tools of statutory construction.’” Hylton,

992 F.3d at 1157–58 (quoting Chevron, 467 U.S. at 843

n.9). “These tools encompass our ‘regular interpretive

method,’ Gen. Dynamics Land Sys., Inc. v. Cline, 540

U.S. 581, 600 (2004), including the canons of

construction.” Id. at 1158. “Where, as here, the canons

supply an answer, Chevron leaves the stage.” Epic

Sys. Corp., 138 S.Ct. at 1630; see also Solid Waste

Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs,

531 U.S. 159, 173 (2001) (refusing to apply Chevron,

in part, because of canon of constitutional avoidance

concerning the agency interpretation).

In fact, this Court has followed this analysis

before, applying the immigration rule of lenity to

resolve a potential statutory ambiguity and then

concluding that Chevron deference was no longer

warranted. See INS v. St. Cyr., 533 U.S. 289, 320

(2001). In St. Cyr, this Court applied “the

longstanding principle of construing any lingering

ambiguities in deportation statutes in favor of the

alien,” to “foreclose[]” a punitive reading of a

deportation statute. 533 U.S. at 320. Then, in a

footnote, it cast aside a call to “extend deference under

Chevron,” because, after “applying the normal ‘tools of

statutory construction’” there was, “for Chevron

purposes, no ambiguity in such a statute for an agency

to resolve.” Id. at n.45 (citation omitted).

In the end, if there is uncertainty in the meaning

of the statutory provision, then the rule of lenity

provides a clear answer. Any lingering ambiguity

19

must be resolved in favor of a noncitizen. And with

that ambiguity resolved, there is no remaining role for

Chevron deference.

C. The Courts of Appeals Continue to

Discard the Rule of Lenity in Favor of

Reflexive Deference to the BIA.

While the primacy of the rule of lenity is clear as a

constitutional matter, the lower courts have simply

discarded it in favor of the BIA’s punitive

interpretation. This Court needs desperately to

remedy this situation.

As this case demonstrates, the split in

interpretation over the statutory question arises

solely because of the larger confusion about the proper

role of Chevron deference in this context. See, e.g.,

Flores v. Att’y Gen. United States, 856 F.3d 280, 287

n.23 (3d Cir. 2017) (“In contrast to other circuits, we

do not defer to the BIA’s interpretation of the

Obstruction

Provision

in

making

this

determination.”); Higgins v. Holder, 677 F.3d 97, 103

(2d Cir. 2012) (“There is a circuit split on the question

of whether deference is owed to the BIA’s reasoning”

concerning the phrase “offense relating to obstruction

of justice.”). Moreover, as the Ninth Circuit recognized

while addressing the statutory question at issue here,

deferring to the BIA’s understanding of the phrase

“offense relating to obstruction of justice” “raises

serious constitutional concerns” concerning the proper

role of the rule of lenity. Valenzuela Gallardo, 968

F.3d at 1059. Nevertheless, like the Fourth Circuit

below, courts have clung to the view that the rule of

lenity can never apply when an administrative body

like the BIA interprets a statute. See, e.g., Silva v.

20

Garland, 27 F.4th 95, 112–13 (1st Cir. 2022) (holding

court must “defer to the BIA’s interpretation of a

statute with criminal implications”); Pugin, 19 F.4th

at 444 (“This is a civil proceeding interpreting a civil

statute. Any ancillary criminal consequences are too

attenuated. As a result, lenity cannot displace

Chevron here.”); Valenzuela Gallardo, 968 F.3d at

1059, 1062 (concluding, despite “serious constitutional

concerns,” it was “not free to take a fresh look at the

Chevron Step Zero question”). Even when an agency’s

reading of an ambiguous statute results in

unforeseeable consequences like expulsion from the

United States or even incarceration, some courts

claim not to be able to adopt a contrary reading. See

Silva, 27 F.4th at 112–13.

The culprit, it seems, is this Court’s opinion in

Babbitt v. Sweet Home Chapter, Communities for

Great Ore., 515 U.S. 687, 704 n.18 (1995), where the

majority deferred to an agency’s interpretation of a

law that carried criminal penalties. See, e.g., Silva, 27

F.4th at 112 (concluding that applying the rule of

lenity to BIA interpretation is “flatly inconsistent”

with Babbitt). Justice Scalia later referred to that part

of the opinion as a “drive-by ruling” that “contradicts

the many cases before and since holding that, if a law

has both criminal and civil applications, the rule of

lenity governs its interpretation in both settings.”

Whitman v. United States, 574 U.S. 1003, 1003 (2014)

(Scalia, J., joined by Thomas, J., statement regarding

denial of certiorari). “With deference to agency

interpretations of statutory provisions to which

criminal

prohibitions

are

attached,

federal

administrators can in effect create (and uncreate) new

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

21

ambiguities that the laws contain.” Id. And since

Babbitt, this Court has affirmed that it 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); see also Abramski v.

United States, 573 U.S. 169, 191 (2014) (“The critical

point is that criminal laws are for courts, not for the

Government, to construe.”); Cargill, 57 F.4th at 467

(“Several courts cite Babbitt for the proposition that

the Chevron framework applies with equal force to

criminal regulations and displaces the rule of lenity,

but it does not support that conclusion.”). Yet the

lower courts remain insistent that their hands are

tied. See, e.g., Silva, 27 F.4th at 112.

At least twice this Court has granted certiorari to

finally redirect the lower courts, but each time it

resolved the cases on other grounds. See, e.g.,

Esquivel-Quintana v. Sessions, 137 S.Ct. 1562, 1572

(2017) (“We have no need to resolve whether the rule

of lenity or Chevron receives priority in this case

because the statute, read in context, unambiguously

forecloses the Board’s interpretation.”); Barber v.

Thomas, 560 U.S. 474, 488 (2010) (declining to apply

the rule of lenity to sentencing provision but also

declining to consider Chevron deference to agency).

Meanwhile, a growing chorus of judges on the courts

of appeals has expressed concern for Chevron

deference’s victory over the rule of lenity. See, e.g.,

Cargill, 57 F.4th at 468 (“Chevron does not apply here

because the statutory language at issue implicates

criminal penalties.”); Gun Owners of Am., Inc. v.

Garland, 19 F.4th 890, 921 (6th Cir. 2021) (Murphy,

J., dissenting, joined by Sutton, C.J., Batchelder,

Kethledge, Thapar, Bush, Larsen, and Nalbandian,

22

JJ.) (It is “preposterous to say that when criminal

statutes are ambiguous, the Department of Justice is

permitted to construe them as it sees fit. Two of our

foundational principles—the separation of powers and

due process—should lead us to adopt the opposite

presumption.”) (citation omitted); Aposhian v.

Wilkinson, 989 F.3d 890, 898 (10th Cir. 2021)

(Tymkovich, C.J., dissenting, joined by Hartz,

Holmes, Eid, and Carson, JJ.) (“Chevron only kicks in

once the traditional tools of interpretation have been

exhausted. . . . We still have one left in our toolbox: the

rule of lenity.”); Valenzuela Gallardo, 968 F.3d at 1059

(noting deference to BIA “raises serious constitutional

concerns” otherwise protected by the rule of lenity).

This Court is thus, at last, faced with the

opportunity to resolve this question. In choosing

which of the lower courts’ decisions was correct, the

deciding factor is whether deference is owed to the

BIA. This Court can finally make clear that

administrative decisions that come with the harsh

consequences of permanent banishment, or that will

affect criminal prosecutions, are owed no deference.

Instead, respect for Congress’ proper role and fair

notice to affected parties compels lenity.

CONCLUSION

“As [this Court has] explained on many prior

occasions, the separation of powers is designed to

preserve the liberty of all the people.” Collins v. Yellen,

141 S.Ct. 1761, 1780 (2021). When power is

improperly consolidated, violations of other rights

have no remedy. But the petitioners, and countless

others, face the most severe consequences available to

the government through the BIA’s improper exercise

23

of power. This Court should finally set things right

and clarify the proper role that the rule of lenity plays

in such circumstances.

DATED: March 24, 2023.

Respectfully submitted,

OLIVER J. DUNFORD

Pacific Legal Foundation

4440 PGA Blvd., Ste. 307

Palm Beach Gardens, FL

33410

916.503.9060

ODunford@pacificlegal.org

CALEB J. KRUCKENBERG

Counsel of Record

Pacific Legal Foundation

3100 Clarendon Blvd.

Ste. 1000

Arlington, VA 22201

202.888.6881

CKruckenberg@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation