Amicus Curiae Brief — Tamer S. Wassily, et al., Petitioners v. Todd Blanche, Attorney General
Supreme Court briefAug 31, 2026
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No. 25-842
IN THE
Supreme Court of the United States
__________________
TAMER S. WASSILY,
Petitioner,
v.
TODD BLANCHE, ATTORNEY GENERAL,
Respondent.
__________________
BYRON E. VELASQUEZ ARREAGA,
Petitioner,
v.
TODD BLANCHE, ATTORNEY GENERAL,
Respondent.
__________________
On Writ of Certiorari to the United States
Court of Appeals for the Second Circuit
__________________
BRIEF OF IMMIGRATION LAW PROFESSORS AS
AMICI CURIAE IN SUPPORT OF PETITIONERS
__________________
Joy Chen
Carolyn F. Corwin
COVINGTON & BURLING LLP Counsel of Record
One International Place Françoise N. Djoukeng
Suite 1020
Francisco I. Collantes
Boston, MA 02110-2627 COVINGTON & BURLING LLP
(617) 603-8800
850 Tenth Street, NW
Washington, DC 20001
(202) 662-5338
ccorwin@cov.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................1
INTRODUCTION AND SUMMARY OF
ARGUMENT ..........................................................2
ARGUMENT ...............................................................5
I. If the Court Finds That Section 1159(b) Is
Subject to More Than One Reading, It Should
Apply the Rule of Strict Construction and
Resolve Any Ambiguities in Petitioners’ Favor. ...5
A. This Court Established the Rule of Strict
Construction as a Substantive Rule of
Statutory Interpretation Nearly Eighty
Years Ago. .........................................................5
B. The Rule of Strict Construction Has Been
Applied Consistently, and Loper Bright
Restores It to Full Force. ..................................8
1. This Court and the Courts of
Appeals Have Applied the Rule for
Decades...................................................8
2. The Rule Survived the Chevron Era,
and Loper Bright Restores It to Full
Force. ....................................................12
C. If the Court Should Conclude that Section
1159(b) Is Ambiguous in the Circumstances
of This Case, It Should Apply the Rule of
Strict Construction and Resolve Any
Ambiguities in Petitioners’ Favor. .................14
ii
II. The Government’s Arguments Are Without
Merit. ....................................................................20
A. The Rule of Strict Construction Is Not
Limited to Statutes That Authorize
Removal...........................................................20
B. There Is No “Grievous Ambiguity”
Threshold Limiting Application of Strict
Construction in Civil Immigration Cases. .....23
CONCLUSION ..........................................................27
APPENDIX: List of Amici Curiae .............................1a
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Barber v. Gonzales,
347 U.S. 637 (1954) ............................................. 9
Bonetti v. Rogers,
356 U.S. 691 (1958) ........................................... 10
Cargill v. Garland,
57 F.4th 447 ...................................................... 23
Castillo v. Bondi,
140 F.4th 777 (6th Cir. 2025) ........................... 13
Cela v. Garland,
75 F.4th 355 (4th Cir. 2023) ..................... 3, 9, 20
Chevron USA, Inc. v. Nat. Res. Def. Council,
Inc.,
467 U.S. 837 (1984) ............................................. 3
Costello v. INS,
376 U.S. 120 (1964) ..................................... 10, 11
Dada v. Mukasey,
554 U.S. 1 (2008) ..................................... 5, 12, 21
Delgadillo v. Carmichael,
332 U.S. 388 (1947) ............................................. 6
Esquivel-Quintana v. Sessions,
581 U.S. 385 (2017) ........................................... 13
iv
Fong Haw Tan v. Phelan,
333 U.S. 6 (1948) ......................................... 3, 5, 6
Galvan v. Press,
347 U.S. 522 (1954) ............................................. 6
Huddleston v. United States,
415 U.S. 814 (1974) ........................................... 23
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ................... 3, 5, 8, 12, 17, 23
INS v. Errico,
385 U.S. 214 (1966) ..................................... 11, 21
INS v. St. Cyr,
533 U.S. 289 (2001) ....................... 7, 8, 12, 15, 21
In Re J-J-,
21 I. & N. Dec. 976 (B.I.A. 1997) ...................... 16
Jama v. Dep’t of Homeland Sec.,
760 F.3d 490 (6th Cir. 2014) ............................. 15
Jordan v. De George,
341 U.S. 223 (1951) ............................................. 7
Leocal v. Ashcroft,
543 U.S. 1 (2004) ............................................... 25
Lok v. INS,
548 F.2d 37 (2d Cir. 1977) ................................ 22
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ................................. 3, 13, 14
v
Matter of N-A-I-,
27 I. & N. Dec. 72 (B.I.A. 2017) ........................ 20
Negusie v. Holder,
555 U.S. 511 (2009) ........................................... 17
Ocasio v. United States,
578 U.S. 282 (2016) ........................................... 25
Olmos v. Holder,
780 F.3d 1313 (10th Cir. 2015) ......................... 12
Pugin v. Garland,
599 U.S. 600 (2023) ............................... 13, 24, 25
Riley v. Bondi,
606 U.S. 259 (2025) ........................................... 21
Ruiz-Almanzar v. Ridge,
485 F.3d 193 (2d Cir. 2007) .............................. 13
Sessions v. Dimaya,
584 U.S. 148 (2018) ............................................. 7
Shaw v. United States,
580 U.S. 63 (2016) ............................................. 23
Shular v. United States,
589 U.S. 154 (2020) ........................................... 23
Siwe v. Holder,
742 F.3d 603 (5th Cir. 2014) ......................... 9, 14
Matter of T-C-A-,
28 I. & N. Dec. 472 (2022) ............................. 2, 13
vi
Wooden v. United States,
595 U.S. 360 (2022) ........................................... 23
Yu v. Brown,
92 F. Supp. 2d 1236 (D.N.M. 2000) .................. 22
Statutes
8 U.S.C.
§ 1158............................................................. 8, 16
§ 1159......................................................... 1, 2, 20
§ 1229................................................................. 21
Refugee Act of 1980, Pub. L. No. 96-212,
94 Stat. 102 (1980) ............................................ 17
Regulatory Materials
8 C.F.R.
§ 208.21.............................................................. 15
§ 208.22.............................................................. 15
§ 208.24................................................................ 8
Other Authorities
Am. Imm. Lawyers Ass’n, High Stakes
Asylum: How Long an Asylum Case
Takes and How We Can Do Better (Aug.
14, 2023) ............................................................ 18
Brian G. Slocum, The Immigration Rule of
Lenity and Chevron Deference, 17 Geo.
Immigr. L.J. 515 (2003) .................................... 22
Hiroshi Motomura, Phantom Norms and
Statutory Interpretation, 100 Yale L.J.
545 1990) ............................................................. 7
vii
Nancy Morawetz, Strict Construction of
Deportation Statutes After Loper Bright,
100-1 N.Y.U. L. Rev. Online 1 (2025) . 7, 8, 10, 13
Robbie Corey-Boulet & Emmanuel Bruce,
Ghana Took in Trump’s Deported West
Africans. Then It Forced Them Home,
Reuters (Jan. 17, 2026) ..................................... 18
Sheriff Bojang Jr., Equatorial Guinea Sends
Eight of Trump’s Nine Deportees Home,
Braces For New Arrivals, Africa Report
(Jan. 16, 2026) ................................................... 18
1
INTEREST OF AMICI CURIAE*
Amici are 37 law professors who are experts in immigration law. As teachers and scholars in the field,
amici have a strong interest in the proper interpretation of the Immigration and Nationality Act, 8 U.S.C.
§ 1101 et seq. (“INA”), as well as the practical consequences of interpretations advanced by parties to this
Court’s immigration cases. Amici believe that if the
Court finds that the statutory provision at issue in
both petitioners’ cases (8 U.S.C. § 1159(b)) is subject
to more than one reading as it relates to petitioners’
circumstances the Court should apply the rule of strict
construction in favor of noncitizens and resolve any
ambiguities in petitioners’ favor.
Amici will explain the strong historical pedigree
and precedential status of the rule of strict construction for statutes relating to deportation—sometimes
called the immigration rule of lenity—as a substantive rule of statutory interpretation. The rule, which
requires that ambiguities in such statutes be resolved
in favor of the noncitizen, is rooted in the severity of
removal, in the separation of powers, and in fair notice
concerns; it requires that Congress speak clearly
when exercising its broad powers over immigration. If
the Court should conclude that there is more than one
plausible reading of 8 U.S.C. § 1159(b) in the circumstances of this case, the rule of strict construction
offers an appropriate tool of statutory interpretation
* Pursuant to Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part, and that no person other
than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.
2
with which to construe that provision. Applying the
rule here reinforces the conclusion that Section 1159(b), read in context, does not bar a noncitizen
whose asylum has been terminated from applying for
adjustment of status.
The list of the amici curiae law professors appears
in the appendix to this brief.
INTRODUCTION AND
SUMMARY OF ARGUMENT
This case presents a question of how to construe a
provision of an immigration statute. Section 1159(b)
of Title 8 provides the Secretary of Homeland Security
or the Attorney General with the discretion to “adjust
to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum”
who satisfies five enumerated conditions. 8 U.S.C.
§ 1159(b). The question is whether the phrase “any
alien granted asylum” reaches a noncitizen who was
granted asylum but whose asylum has since been terminated or whether these noncitizens are barred from
the opportunity to request adjustment of status to
lawful permanent residence. The latter reading (espoused by the government here) would close off the
principal form of discretionary relief that allows
asylees and their derivative family members to remain in the United States with a secure status.
The parties advance competing readings. The
Board of Immigration Appeals (“Board” or “BIA”)
characterized Section 1159(b) as “ambiguous” in the
context of this case. Matter of T-C-A-, 28 I. & N. Dec.
472, 476 (2022). Federal courts have divided on interpretation, with one federal judge describing Section
3
1159(b) as “not a model of clarity” and the issue as “a
difficult question of statutory construction.” Cela v.
Garland, 75 F.4th 355, 366 (4th Cir. 2023) (Harris, J.,
concurring in part and dissenting in part); accord Pet.
App. 19a (Robinson, J., dissenting).
Amici believe that petitioners have the better
reading of the statutory text for the reasons stated in
their brief. But if this Court finds the language ambiguous the Court should employ an interpretive tool
that it developed for precisely this sort of ambiguity.
For nearly eighty years, this Court has held that lingering ambiguities in the immigration laws should be
resolved in the noncitizen’s favor. See Fong Haw Tan
v. Phelan, 333 U.S. 6, 10 (1948); INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987). This rule of strict
construction rests on three considerations, each present here: removal is a sanction of extraordinary
severity; Congress’s power over immigration is so
broad that its exercise must at least be clear; and
noncitizens are entitled to fair notice of the consequences that attach to their conduct.
The rule has never been repudiated. It was sidelined for a generation, not because this Court
abandoned it, but because the Court’s decision in
Chevron USA, Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), directed courts to
defer to agency constructions of ambiguous statutes,
and the courts of appeals perceived tension between
deference and strict construction. Loper Bright removed that obstacle. Courts must now “exercise
independent judgment,” using “the traditional tools of
statutory construction” to determine “the best reading
of the statute.” Loper Bright Enters. v. Raimondo, 603
4
U.S. 369, 394, 400–01 (2024). The rule of strict construction of ambiguous immigration provisions is one
of those tools.
The government’s objections to application of the
rule in this case do not withstand scrutiny. Its contention that the rule reaches only statutes that
authorize removal cannot be squared with the rule’s
rationale, with this Court’s precedents, or with the
fact that denial of adjustment under Section 1159(b)
in cases like this one will ordinarily lead to a removal
order. The government’s alternative contention that
any ambiguity must be “grievous” for the strict construction rule to apply is also without merit; it would
import into the immigration laws a threshold developed for criminal statutes, one with a pedigree and
justifications different from those of the strict construction rule for civil immigration cases. And
arguments the government has put forward in other
immigration cases likewise fail to overcome application of the rule of strict construction here.
If Section 1159(b) is susceptible of more than one
reading, the rule of strict construction resolves the
doubt in petitioners’ favor, and the judgment below
should be reversed.
5
ARGUMENT
I. If the Court Finds That Section 1159(b) Is
Subject to More Than One Reading, It Should
Apply the Rule of Strict Construction and
Resolve Any Ambiguities in Petitioners’
Favor.
A. This Court Established the Rule of Strict
Construction as a Substantive Rule of
Statutory Interpretation Nearly Eighty
Years Ago.
In 1948, confronting a four-way circuit split over
the meaning of “sentenced more than once” in an immigration provision, this Court announced in Fong
Haw Tan that it would resolve the resulting doubts in
favor of the noncitizen, adopting the narrowest construction. 333 U.S. at 9–10. In the decades that
followed, the Court reaffirmed the rule repeatedly.
For example, in the seminal case on asylum, INS v.
Cardoza-Fonseca, the Court determined what an applicant for asylum must show to establish a “wellfounded fear of persecution.” The Court acknowledged “the longstanding principle of construing any
lingering ambiguities in deportation statutes in favor
of the alien,” though in that case it found the ordinary
canons sufficient to resolve the question without resort to the principle. 480 U.S. 421, 449 (1987). No
later decision rejected this rule of strict construction,
and this Court cited it favorably in a majority opinion
as recently as Dada v. Mukasey, 554 U.S. 1, 18–19
(2008).
The Fong Haw Tan Court rested its decision to accept the narrowest of four competing statutory
6
constructions on two propositions that favor its application here. First, removal of a noncitizen from this
country is a sanction of extraordinary severity. See
333 U.S., at 10; see also Galvan v. Press, 347 U.S. 522,
530 (1954) (deportation may “deprive a man ‘of all that
makes life worth living’” (citations omitted)). Congress—not the Executive and not the courts—must
decide who bears that sanction. See Fong Haw Tan,
333 U.S. at 10. The Court explained that it would “resolve the doubts in favor of that [narrowest]
construction because deportation is a drastic measure
and at times the equivalent of banishment or exile.”1
Id. at 8–10. The rule thus entered the law not as a
tiebreaker of last resort but as the stated ground for
choosing among competing constructions of an ambiguous provision.
Second, because “the stakes are considerable for
the individual,” the Court explained, it would “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. at 10.
The strict construction rule complemented the Court’s
contemporaneous cases limiting constitutional scrutiny of congressional choices about immigration laws,
1 Fong Haw Tan built on Delgadillo v. Carmichael, 332 U.S. 388
(1947), decided the Term before. There the Court held that a
lawful permanent resident whose merchant ship was torpedoed,
and who was rescued and brought ashore in Cuba before returning home a week later, had made no “entry” restarting the period
in which a conviction would render him deportable. Because the
“stakes are indeed high and momentous for the alien who has
acquired his residence here,” the Court would not “attribute to
Congress a purpose to make his right to remain here dependent
on circumstances so fortuitous and capricious.” Id. at 391.
7
thereby respecting the overall scheme for separation
of powers over immigration matters. The Court developed the strict construction rule alongside its
recognition that there are few constitutional constraints on immigration lawmaking.
Hiroshi
Motomura, Phantom Norms and Statutory Interpretation, 100 Yale L.J. 545, 554–60 (1990). In this context,
the rule of strict construction served to assure that the
branch of government entrusted with outsized power
over immigration law had considered the impact of its
decisions and spoken with clarity. See Nancy
Morawetz, Strict Construction of Deportation Statutes
After Loper Bright, 100–1 N.Y.U. L. Rev. Online 1, 17–
18 (2025) [hereinafter Strict Construction]. Given
Congress’s broad prerogative in this area, a judicial
review rule focused on clarity allocated the power between the branches in a way that provided Congress
greater authority but commensurate accountability
for exercise of that authority in connection with the
outer boundaries of the removal power. See id.
Beyond the two rationales the Court articulated in
Fong Haw Tan, the rule of strict construction serves
the fair notice interests that underlie strict construction of penal statutes generally. This Court has
recognized that noncitizens are entitled to fair notice
of the immigration consequences of their conduct.
See, e.g., Jordan v. De George, 341 U.S. 223, 231,
(1951) (applying vagueness doctrine to a ground for
deportation and asking whether the statute gave “sufficiently definite warning” of its consequences);
Sessions v. Dimaya, 584 U.S. 148, 156 (2018). In INS
v. St. Cyr, 533 U.S. 289 (2001), the Court declined to
read the provision at issue to withdraw discretionary
relief for noncitizens who had already pleaded guilty,
8
explaining that whether a statute operates retroactively “should be informed and guided by familiar
considerations of fair notice, reasonable reliance, and
settled expectations.” Id. at 321 (citation omitted).
These fair notice concerns carry particular weight
in the immigration laws because removal is subject to
no statute of limitations. See Strict Construction, supra, at 20–21. Among other grounds, as in the cases
under review here, asylum can be terminated for a
criminal conviction that is deemed a “particularly serious crime” – one that may have transpired decades
ago. 8 U.S.C. § 1158(c)(2). A noncitizen with asylee
status who has built a life here remains exposed indefinitely to the consequences of that decades-old
event. And the consequences extend to derivatives
(the asylee’s spouse and children): termination of asylum status for the principal results “in termination of
the asylum status of a spouse or child whose status
was based on the asylum application of the principal.”
8 C.F.R. § 208.24(d).
B. The Rule of Strict Construction Has Been
Applied Consistently, and Loper Bright
Restores It to Full Force.
1. This Court and the Courts of Appeals
Have Applied the Rule for Decades.
For decades, this Court has recognized and applied
the “longstanding principle of construing any lingering ambiguities” in immigration statutes in
noncitizens’ favor. See, e.g., Cardoza-Fonseca, 480
U.S. at 449. The courts of appeals have followed, repeatedly recognizing the rule of strict construction in
9
immigration matters, including cases involving asylum.2
The rule has never been a makeweight. For two
decades it regularly supplied the basis for decisions
construing ambiguous immigration statutes in a variety of contexts, and it did so against the government’s
arguments that a broad statutory purpose supports
the wider reading, and that the agency’s own practice
confirms the government’s reading. For example, in
Barber v. Gonzales, 347 U.S. 637 (1954), the Court
strictly construed a statute permitting deportation for
crimes committed after the “entry” of a noncitizen into
the United States. Plaintiff Barber was born in a U.S.
territory and was thus considered an American national when he traveled to California. Shortly after
Barber’s home territory gained independence, he was
convicted of crimes in California and Washington. At
issue during deportation proceedings was whether
Barber had made an “entry” within the meaning of the
deportation statute. The government warned that
reading “entry” narrowly was “inconsistent with a
broad congressional purpose to terminate the United
States residence of alien criminals.” Id. at 642. The
Court accepted the premise but declined the conclusion, concluding that Barber would face great
hardship if required to leave his home: deportation
statutes, “[a]lthough not penal in character,” may “inflict ‘the equivalent of banishment or exile,’ and
should be strictly construed.” Id. at 642–43 (citation
omitted). As a further basis for its reading, the
2 See, e.g., Siwe v. Holder, 742 F.3d 603, 608–09 (5th Cir. 2014);
Cela, 75 F.4th at 366–68 (Harris, J., concurring in part and dissenting in part).
10
government had also pressed twelve years of administrative construction that Congress had never
repudiated. The Court’s opinion did not mention that
argument. See Strict Construction, supra, at 11–12.
Bonetti v. Rogers, 356 U.S. 691 (1958), is to the
same effect. At issue in Bonetti was whether a statute
permitting deportation of noncitizens who “had been,
after entering the United States, a member of the
Communist Party” applied to Bonetti, who had entered the country twice: once as a Party member in
1923, and then again fifteen years later, after he had
left the Party. The government pressed powerful
grounds to support its congressional purpose argument: it cited extensive legislative history and filed a
supplemental memorandum adding further evidence
of Congress’s intent. See Strict Construction, supra,
at 9–10. The dissent invoked “decades of uninterrupted administrative interpretation and practice.”
Bonetti, 356 U.S. at 702–03 (Clark, J., dissenting).
The Court nonetheless found the statute “quite ambiguous” as applied to the novel facts before it and
resolved the ambiguity in the noncitizen’s favor. Id.
at 699.
By the 1960s the rule’s existence was uncontested,
and the only question was whether a given provision
was ambiguous enough to trigger it. In Costello v.
INS, 376 U.S. 120 (1964), the Court interpreted a statute that provided for deportation of a noncitizen “who
at any time after entry is convicted” of two crimes. Id.
at 121 (cleaned up). The petitioner in Costello had
been a naturalized citizen at the time of conviction,
though his citizenship was subsequently revoked on
the grounds that it had been acquired by willful
11
misrepresentation. Id. The Court acknowledged that
if doubt survived its statutory analysis, it “would
nonetheless be constrained by accepted principles of
statutory construction in this area of the law to resolve that doubt in favor of the petitioner.” Id. at 128.
The dissent disputed only clarity, raising “no quarrel
with the doctrine that where the Court is unable to
discern the intent of Congress, ambiguities should be
resolved in favor of the deportee.” Id. at 148 (White,
J., dissenting).
Two years later the Solicitor General himself referred to strict construction as “[t]he familiar rule that
doubts concerning the interpretation of deportation
laws must be resolved in favor of the alien,” contending only that the rule “did not authorize the court
below to expand the language and purpose of the statute beyond the limits clearly fixed.”
Brief for
Petitioner at 36–37, INS v. Errico, 385 U.S. 214 (1966)
(No. 54). At issue in Errico was whether a statutory
exemption saved from deportation the unlawfully present parents of two U.S.-born children. The parents,
who had misrepresented their status to gain entry
into the U.S., argued that they were covered under a
humanitarian provision exempting from deportation
the parent of an American citizen “otherwise admissible” at the time of their entry. 385 U.S. 214, 215–16.
The Court observed that the meaning of “otherwise
admissible” was “not obvious” and therefore construed
the statute in favor of the noncitizens. 385 U.S. at
225. The government in Errico did not dispute the existence of the rule or its potential application to the
statute at issue there; it argued only that the statute
was clear.
12
The remaining question is whether anything in the
decades since has displaced the rule.
2. The Rule Survived the Chevron Era,
and Loper Bright Restores It to Full
Force.
Chevron did not displace the strict construction
rule, but the rule was largely sidelined after the
Court’s decision in that case. In Cardoza-Fonseca,
this Court resolved the question before it based on the
statute’s text, its correspondence to a United Nations
Protocol, and its legislative history, finding those “ordinary canons of statutory construction compelling,
even without regard to the longstanding principle of
construing any lingering ambiguities in deportation
statutes in favor of the alien.” 480 U.S. at 449. The
Court thus reaffirmed the rule rather than discarding
it. The Court relied on the rule in St. Cyr, 533 U.S. at
320, which concerned the availability of discretionary
relief from deportation, and cited the rule favorably in
Dada, 554 U.S. at 18–19, involving an alien who requested and was granted voluntary departure from
the United States—a form of discretionary relief that
avoids certain statutory penalties.
The courts of appeals, meanwhile, openly debated
whether the rule could operate alongside Chevron deference, and several concluded that it could not—
holding instead that Chevron required deference to
the agency’s reasonable construction even when the
rule would otherwise resolve the ambiguity in the
noncitizen's favor. See, e.g., Olmos v. Holder, 780 F.3d
1313, 1324 (10th Cir. 2015) (collecting cases from the
First, Second, Fourth, and Eighth Circuits holding
13
that the rule does not displace Chevron deference);
Ruiz-Almanzar v. Ridge, 485 F.3d 193, 198 (2d Cir.
2007). Twice this Court declined to resolve the tension, each time because it found the provision at issue
before it clear. See Esquivel-Quintana v. Sessions, 581
U.S. 385, 397–98 (2017); Pugin v. Garland, 599 U.S.
600, 610 (2023).
Loper Bright removed the obstacle. That decision
directs courts to find the best reading of a statute using “the traditional tools of statutory construction,”
603 U.S. at 400–01, and substantive canons this Court
applied long before Chevron are among those tools.
See Strict Construction, supra, at 4. The one court of
appeals to have addressed the strict construction rule
for immigration statutes since Loper Bright confirmed
that the tool remains available, observing that
“[w]hen such uncertainty clouds a deportation statute, ‘the longstanding principle of construing’ it ‘in
favor of the alien’ kicks into gear.” Castillo v. Bondi,
140 F.4th 777, 781 (6th Cir. 2025) (Sutton, C.J.).3
Here the court below expressly set out (properly)
to “use the ‘traditional tools of statutory construction’
to ‘resolve statutory ambiguities’ and ‘determine the
3 The government’s construction of the provision at issue here is
an artifact of Chevron. The BIA did not conclude that the government’s reading was the better one. It concluded that “the text
and legislative history of section 209(b) do not reveal whether
Congress clearly intended” an answer, that the operative phrase
“may be interpreted in different ways,” and that Section 1159(b)
is for that reason “ambiguous.” Matter of T-C-A-, 28 I. & N. Dec.
at 475–76. The Board then treated the ambiguity as a “delegation[] of authority to the agency to fill the statutory gap in
reasonable fashion,” and it proceeded to fill that gap. Id. at 476.
14
best reading of the statute.’” Pet. App. 8a (quoting
Loper Bright, 603 U.S. at 400–01). But the court erred
in not applying the strict construction rule. The panel
searched for the best reading of the provision—the interpretation of which has divided both the courts and
the Board—without employing the tool this Court developed for that very situation.
C. If the Court Should Conclude that Section
1159(b) Is Ambiguous in the Circumstances of This Case, It Should Apply the
Rule of Strict Construction and Resolve
Any Ambiguities in Petitioners’ Favor.
Amici believe that petitioners advance the better
reading of Section 1159(b), for reasons they present in
their opening brief. But the Court need not agree with
petitioners in order to reverse. If the Court concludes
that the provision is susceptible of more than one
reading (and is therefore ambiguous), the rule of strict
construction resolves the doubt.
As set out above, the tribunals that have construed
Section 1159(b) in the circumstances of petitioners’
cases have noted that the provision lacks clarity and
have divided sharply. The judges who have reached
the question at issue here divide six to six. See Pet. 6.
The Board expressly characterized the provision as
ambiguous; its dissenting member found the provision
unambiguous in petitioners’ favor; and the circuit
court panels holding the text clear have reached opposite conclusions about what it “clearly” means.
Compare Siwe v. Holder, 742 F.3d 603, 608 (5th Cir.
2014), with Pet. App. 12a.
15
The concerns underlying the rule of strict construction are present here.
Asylum status carries
protection from removal to any country, 8 C.F.R.
§ 208.22, and derivative status for spouses and children of the asylee, id. § 208.21.
Without an
opportunity to apply for adjustment of status, a
noncitizen whose grant of asylum has been terminated faces the same stakes that the Court identified
in Fong Haw Tan. Absent the protection afforded by
asylee status or adjustment to lawful permanent resident status, the noncitizen faces the risk of removal.
See Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 496
(6th Cir. 2014) (termination of refugee status and denial of adjustment are “intermediate steps in the
removal of an alien”). In fact, in some cases (including
those under review here) noncitizens challenge termination of asylee status and seek relief through
adjustment only after they have been placed in removal proceedings.
Whether Section 1159(b) is
characterized as conferring a benefit (as the government argues in this case) or as authorizing removal,
under the government’s reading the individual faces
the same injury. See St. Cyr, 533 U.S. at 314 (invoking the rule of strict construction with respect to
eligibility for discretionary relief).
The government’s reading of Section 1159(b)
would remove an entire class of noncitizens from consideration for adjustment of status. A noncitizen
whose asylum is terminated is barred from seeking
adjustment not because an immigration judge or the
Attorney General has weighed his circumstances and
denied relief, but because he stands outside the class
the agency may consider at all. Pet. App. 28a–29a
(Robinson, J., dissenting).
Absent this bar,
16
discretionary action to adjust status would be an
available form of relief for former asylees whose individual circumstances warranted it. The immigration
judge who heard Mr. Wassily’s case determined that,
despite his criminal convictions, his individual circumstances (including inter alia his continued wellfounded fear of persecution for his Coptic Christian
beliefs, indications of rehabilitation in the years since
his 2004 convictions, and family unification concerns)
warranted adjustment of his status based on humanitarian considerations. Pet. App. 52a-54a, 56a-58a.
The government’s reading of Section 1159(b) completely cuts off the opportunity for Mr. Wassily to
avoid removal based on that individualized determination.
The consequences of barring any consideration of
adjustment of status are grave for both former asylees
and their spouses and children. The government may
terminate a grant of asylum due to (among other circumstances) the individual’s commission of a
“particularly serious crime,” a fundamental change in
conditions in the country of origin, or where an agreement with a third country provides a “safe” country
option for removal. See 8 U.S.C. § 1158(c)(2). A
noncitizen whose asylum is terminated due to past
crimes (the situation of these petitioners) and who is
denied adjustment under Section 1159(b) risks return
to the country from which he sought protection; such
return “ultimately ha[s] the potential for life or death
consequences.” See In Re J-J-, 21 I. & N. Dec. 976,
986–87 (B.I.A. 1997) (Rosenberg, Board Member, dissenting). And since termination of asylum also
removes protection for the asylee’s spouse and children, they too will risk removal and return to the place
17
of persecution. Family members may not speak the
language of the former asylee’s country of origin, may
have few connections to that country, and may be subject to persecution for similar reasons as the former
asylee.
Congress enacted the Refugee Act of 1980 “to provide a permanent and systematic procedure for the
admission to this country of refugees of special humanitarian concern to the United States,” Pub. L.
No. 96-212, tit. I, § 101(b), 94 Stat. 102, 102 (1980).
Denying an opportunity for protection against return
to a country where a former asylee faced persecution
is plainly inconsistent with these purposes. Construing Section 1159(b) strictly in favor of a noncitizen
whose asylum status has been terminated, to permit
at least the opportunity for discretionary relief, is far
more consistent with those purposes. Courts should
expect Congress to legislate clearly on this issue in
view of the potential life and death consequences of
removal without the opportunity for adjustment of
status. Cf. Cardoza-Fonseca, 480 U.S. at 436–41, 449
(noting intent of Congress to conform U.S. law to
United Nations Protocol regarding status of refugees);
Negusie v. Holder, 555 U.S. 511, 534–37 (2009) (Stevens, J. concurring in part and dissenting in part)
(noting Congress’s effort to conform U.S. laws to international humanitarian principles).
Even if conditions in the country of origin have
changed, return to that country can result in serious
hardships for the former asylee and their kin. Though
some human rights conditions may have changed, or
even if conditions have improved in some ways, vulnerable groups within the country may still suffer
18
from a range of harms, including lingering human
rights abuses, weak state protection, and elevated levels of generalized violence.
Removal to a third country can also place the former asylee and their family in grave danger. The
designated third country may present new safety
risks, including targeting due to the outsider status of
new arrivals with no prior connection to the country.
In addition, the receiving third country may send the
former asylee elsewhere, including back to the country where they had experienced or feared
persecution.4 And the former asylee and his family
would face the hardship of displacement to at least
one more country with which none of them has a connection and where they may not speak the language
or be familiar with local customs, opening them to
mistreatment as outsiders.
Moreover, removal in and of itself is likely to cause
great hardship to the former asylee and their family
regardless of the grounds for termination of asylee
status. Many asylees and their families are no longer
recent arrivals, but have lived in the United States for
decades,5 where they have built careers, religious ties,
4 See Robbie Corey-Boulet & Emmanuel Bruce, Ghana Took in
Trump’s Deported West Africans. Then It Forced Them Home,
Reuters (Jan. 17, 2026), https://perma.cc/2MMV-7BLV; Sheriff
Bojang Jr., Equatorial Guinea Sends Eight of Trump’s Nine Deportees Home, Braces For New Arrivals, Africa Report (Jan. 16,
2026), https://perma.cc/M8LS-BDPC.
5 On average, applicants for asylum wait six years for asylum
adjudication, with some waiting significantly longer, see Am.
Imm. Lawyers Ass’n, High Stakes Asylum: How Long an Asylum
Case Takes and How We Can Do Better 16 (Aug. 14, 2023),
https://perma.cc/LYN8-C964. Then, one in five adjudications can
19
and civic relationships. Uprooting the former asylee
and his family after such prolonged residence would
sever social networks, disrupt their employment and
education, and undo the stable and productive lives
they have built. Removal from this country disrupts
the hard-won sense of permanence, security, and
safety the former asylee and his family have achieved
and relied on. It also disrupts the communities that
they’ve settled into.
The government’s reading of the statute would
deny any opportunity for an immigration judge or the
Attorney General to consider a former asylee’s individual
circumstances
that
could
warrant
consideration of an adjustment request—including a
well-founded fear of harm upon return to the country
of origin, the age and seriousness of the crimes that
led to termination of asylee status, any successful rehabilitation achieved by the former asylee, the former
asylee’s family situation (particularly the impact of removal on the welfare of the former asylee’s spouse and
children), and contributions the former asylee may
have made to our country through gainful employment or other community service.
In light of the broad power Congress exercises in
the areas of asylum and adjustment of status, the
Court should assume that Congress would have spoken clearly, providing notice if it had intended that
application of Section 1159(b) would produce such
consequences. But Congress made no clear statement
supporting the government’s reading. The bar to
take longer than 34 months.
cessing-times.
See https://egov.uscis.gov/pro-
20
consideration of petitioners’ requests for adjustment
of status that the government posits appears nowhere
in the text of Section 1159(b); it is an inference the
government draws from the words “status” and “adjust.” See Cela, 75 F.4th at 364–65. Congress knew
how to require continuing status when it wanted to: it
did that for refugees in the neighboring subsection,
limiting eligibility to those whose “admission has not
been terminated.” 8 U.S.C. § 1159(a)(1)(A). It imposed no parallel requirement in Section 1159(b).
The government’s reading of Section 1159(b) would
place petitioners, categorically, beyond the reach of
discretionary relief Congress provided for and that
would otherwise be available to them. Because Congress did not legislate clearly in support of this result,
any doubt should be resolved in petitioners’ favor.
II. The Government’s Arguments Are Without
Merit.
A. The Rule of Strict Construction Is Not
Limited to Statutes That Authorize Removal.
The government argues that the rule of strict
construction is limited to deportation statutes and
that Section 1159(b) is about benefits, not deportation.
Pet. Opp’n 14. But termination of asylee status leads
to removal proceedings and inability to seek
adjustment of status bars the principal form of relief
from removal. See, e.g., Matter of N-A-I-, 27 I. & N.
Dec. 72, 76 (B.I.A. 2017) (“[B]eing granted asylum is
not the same as having lawful permanent resident
status, and removal proceedings may ensue if an
21
alien’s asylee status is terminated.”).6
Both
petitioners here had their asylum terminated and now
face removal. Pet. App. 3a–5a (Wassily); id. at 6a–7a
(Velasquez Arreaga).
Under the government’s
reading of the statute, neither may seek discretionary
relief that would otherwise be available to them, to
pursue adjustment to lawful permanent resident
status and thereby avoid removal.
Section 1159(b) is thus an immigration statute
setting out a form of discretionary relief the denial of
which ordinarily leads to removal. That is what
matters for purposes of the rule of strict construction,
not the label the government attaches to the
provision.
Moreover, courts and commentators alike have
recognized that the strict construction rule reaches
beyond provisions that authorize removal. See, e.g.,
St. Cyr, 533 U.S. at 298 (applying the rule in
addressing “the Attorney General’s conclusion that, as
a matter of statutory interpretation, [petitioner] is not
eligible for discretionary relief” and retroactivity of
repeal of discretionary relief from deportation); Dada,
554 U.S. at 4–5, 18-19 (resolving whether under 8
U.S.C. § 1229 Congress intended to qualify the
statutory right to apply for reopening—a
discretionary form of relief— and citing case law
recognizing “‘the longstanding principle of construing
any lingering ambiguities in deportation statutes in
favor of the alien’”); Errico, 385 U.S. at 215, 225
6 This Court has recognized that Congress has largely eliminated the substantive distinction between “removal” and
“deportation.” See Riley v. Bondi, 606 U.S. 259, 267 (2025).
22
(involving the deportation of aliens “on the ground
that they were excludable at the time of entry” and
noting that “[e]ven if there were some doubt as to the
correct construction of the statute, the doubt should
be resolved in favor of the alien” (citation omitted)); cf.
Yu v. Brown, 92 F. Supp. 2d 1236, 1248–49 (D.N.M.
2000) (“[A]lthough the statute at issue in this case
involves an adjustment of status, rather than
deportation, the end result is the same and . . . . would
result in [Plaintiffs’] deportation. Accordingly,
although the Court does not have any lingering doubts
about the temporal scope of the Amendment, such
ambiguities if they existed would necessarily need to
be resolved in favor of the immigrant Plaintiffs.”); Lok
v. INS, 548 F.2d 37, 39 (2d Cir. 1977) (“Deportation is
a sanction which in severity surpasses all but the most
Draconian criminal penalties. We note at once,
therefore, the settled doctrine that deportation
statutes, if ambiguous, must be construed in favor of
the alien.
The recognition of this principle is
especially pertinent in a case where the alien seeks to
avoid deportation through the expedient of Section
212(c) . . . despite a ground for exclusion.” (citations
omitted)); see generally Brian G. Slocum, The
Immigration Rule of Lenity and Chevron Deference, 17
Geo. Immigr. L.J. 515, 523–24 (2003) (stating that the
rule has been applied “to a wide variety of statutory
provisions, including provisions that provide relief
from deportation, asylum provisions, provisions
closing deportation hearings to the public . . .”).
This Court’s treatment of asylum provisions points
the same way.
In Cardoza-Fonseca the Court
construed Section 208(a), which governs eligibility for
asylum, and Section 243(h), which governs
23
withholding of removal, to determine whether the two
impose the same standard of proof. 480 U.S. at 423.
The Court concluded that “ordinary canons of
statutory construction” were “compelling, even
without regard to” the principle of construing
lingering ambiguities in the noncitizen’s favor. Id. at
449. That comment makes clear that the Court
considered the rule applicable to an asylum case and
a provision offering the potential for protection from
removal for an asylee. The government offers no
reason why a rule available to construe the provision
governing the grant of asylum should be unavailable
to construe a provision governing what becomes of the
same person afterward.
B. There Is No “Grievous Ambiguity” Threshold Limiting Application of Strict
Construction in Civil Immigration Cases.
Contrary to the government’s assertion (Br. in
Opp. 14), there is no requirement that ambiguity be
“grievous” before courts will apply the strict construction rule. In interpreting criminal statutes, this Court
has sometimes “suggested that courts should consult
the rule of lenity only when . . . a court confronts a
‘grievous’ statutory ambiguity.” Wooden v. United
States, 595 U.S. 360, 392 (2022) (Gorsuch, J., concurring in the judgment) (quoting Shaw v. United States,
580 U.S. 63, 71 (2016)). Setting aside whether a
“grievous ambiguity” threshold is appropriate or even
workable for interpreting criminal statutes,7 no such
7 As Justice Gorsuch has observed, the first discussion of a “griev-
ous” ambiguity standard “was dicta” and “does not derive from
any well-considered theory about lenity or the mainstream of
this Court’s opinions.” Wooden, 595 U.S. at 392–94 (Gorsuch, J.,
24
threshold applies to the immigration rule of strict construction. This Court should not require Section
1159(b) to be “grievous[ly]” ambiguous before applying the rule of strict construction, for two reasons:
(1) the caselaw does not support application of a grievous-ambiguity threshold to the immigration rule of
strict construction; and (2) applying such a threshold
would undermine the separation-of-powers concerns
that animate the rule of strict construction.
This Court has never required ambiguities in a
civil immigration statute to be “grievous” before applying the rule of strict construction. The government
cites Pugin v. Garland, where this Court interpreted
a statute defining “aggravated felony” in immigration
law—a definition with both civil and criminal consequences. 599 U.S. at 609. But Pugin is thin support
for the application of a grievous ambiguity threshold
in the civil immigration context. In Pugin, a preLoper Bright decision, the Court reasoned that the
statutory ambiguity at hand could be sufficiently resolved using other interpretation tools, so there was
no need to rely on lenity. Id. With Chevron deference
overruled, the Court need no longer hold the rule of
strict construction, or any other canon of statutory
construction, in reserve. Supra Section I.B.
Additionally, the statutory provision interpreted
in Pugin involved language borrowed from the
concurring in the judgment) (citing Huddleston v. United States,
415 U.S. 814, 831 (1974)). Because the threshold arose from
dicta, “the precise meaning of ‘grievously ambiguous’ is not entirely clear.” Cargill v. Garland, 57 F.4th 447, 470 (citing Shular
v. United States, 589 U.S. 154, 168 (2020) (Kavanaugh, J., concurring)).
25
criminal law context and therefore implicated the traditional criminal rule of lenity. At issue there was the
phrase “obstruction of justice,” a criminal-law concept
incorporated into the aggravated-felony definition of
an immigration statute. 599 U.S. at 602–03. This
Court has previously held that when an identical
phrase has an application in both a criminal and a
noncriminal context, “the [criminal] rule of lenity applies” to ensure consistency across applications.
Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004). So in Pugin, to interpret language borrowed from criminal
law, this Court evaluated the applicability of criminal
lenity and its associated “grievous ambiguity” threshold. See Pugin, 599 U.S. at 609 (quoting Ocasio v.
United States, 578 U.S. 282, 295 n.8 (2016)).
The language at issue in this case operates purely
within the immigration context, so the Ocasio Court’s
concern regarding consistency across applications
does not apply. Instead, the more relevant canon is
the longstanding immigration rule discussed in this
brief -- that statutory ambiguities with potentially
harsh consequences should be construed in favor of
the noncitizen. The Court need not and should not
import the heightened “grievous ambiguity” threshold
to interpret a statutory provision with no criminal application.
In addition, as discussed above, the Court developed the strict construction rule in part due to
separation of powers concerns related to Congress’s
expansive powers in the immigration area. See supra
Section I.A.2. Since Fong Haw Tan, this Court has
expected Congress to speak clearly when seeking to
impose a severe consequence such as deportation on
26
noncitizens, with the rule of strict construction serving as a check on Congress’s otherwise broad
immigration power. Limiting the rule to “grievous”
ambiguities would undermine the role of the rule of
strict construction in ensuring that Congress speaks
clearly on matters that affect the ability of noncitizens
to remain in the United States. In any event, the provision at issue here, which has evenly divided the
judges who have considered it in the circumstances of
this case (See Pet. 6), should satisfy any “grievously
ambiguous “ standard.”
27
CONCLUSION
For the reasons set forth above, if the Court should
conclude that Section 1159(b) is ambiguous as it
applies to the circumstances of these cases, it should
reverse the judgment of the court of appeals and
remand for further proceedings consistent with this
Court’s opinion.
Respectfully submitted,
Joy Chen
Carolyn F. Corwin
COVINGTON & BURLING LLP Counsel of Record
One International Place Françoise N. Djoukeng
Francisco I. Collantes
Suite 1020
Boston, MA 02110-2627 COVINGTON & BURLING LLP
One CityCenter
(617) 603-8800
850 Tenth Street, NW
Washington, DC 20001
(202) 662-5338
ccorwin@cov.com
Counsel for Amici Curiae
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
List of Amici Curiae .................................................. 1a
1a
APPENDIX
List of Amici Curiae1
Ava Ayers
Associate Professor of Law
Albany Law School
David Baluarte
Professor of Law
CUNY School of Law
Lenni B. Benson
Distinguished Chaired Professor
Immigration and Human Rights Law
New York Law School
Kristina M. Campbell
Professor of Law
Gonzaga University School of Law
Jennifer M. Chacon
Bruce Tyson Mitchell Professor of Law
Stanford Law School
Rose Cuison-Villazor
Distinguished Professor of Law
Rutgers Law School
Alina Das
Professor of Law
NYU School of Law
1 Amici submit this brief solely on their own behalf and not as
representatives of their universities. Amici are listed with institutional affiliations for purposes of identification only.
2a
Kate Evans
Clinical Professor of Law
Duke University School of Law
Jill E. Family
Professor of Law
Widener Law Commonwealth
Maryellen Fullerton
Suzanne J. and Norman Miles Professor of Law
Brooklyn Law School
Lucas Guttentag
Professor of the Practice of Law
Stanford Law School
Martin R. Flug Lecturer & Sr. Research Scholar
Yale Law School
Lindsay M. Harris
Professor of Law
University of San Francisco School of Law
Kevin R Johnson
Distinguished Professor of Law Emeritus
UC Davis School of Law
Daniel Kanstroom
Professor of Law
Boston College
Annie Lai
Clinical Professor of Law
UC Irvine School of Law
3a
Jennifer J. Lee
Associate Professor of Law
Temple Law School
Stephen Legomsky
John S. Lehmann University Professor Emeritus
Washington University School of Law
Peter L. Markowitz
Professor of Law
Benjamin N. Cardozo School of Law
M Isabel Medina
Victor H. Schiro Distinguished Professor of Law
Loyola University New Orleans College of Law
Jennifer Moore
Regents' Professor
University of New Mexico School of Law
Daniel I. Morales
Professor of Law
Dwight Olds Chair in Law
University of Houston Law Center
Nancy Morawetz
Professor of Law
NYU School of Law
Hiroshi Motomura
Susan Westerberg Prager Distinguished Professor of
Law
UCLA School of Law
4a
Aadhithi Padmanabhan
Associate Professor of Law
University of Maryland Francis King Carey School of
Law
Talia Peleg
Associate Professor of Law
CUNY School of Law
Jaya Ramji-Nogales
Professor of Law
Temple Law School
Jayesh Rathod
Professor of Law
Georgetown Law
Abel Rodríguez
Associate Professor of Law
Wake Forest University School of Law
Jessica Rofé
Associate Professor of Law
Rutgers Law School
Rachel Rosenbloom
Professor of Law
Northeastern University School of Law
Bijal Shah
Professor and Provost Faculty Fellow
Boston College Law School
5a
Jayashri Srikantiah
Professor of Law
Stanford Law School
Juliet P. Stumpf
Edmund O. Belsheim Professor of Law
Lewis & Clark Law School
David B. Thronson
Professor of Law
Michigan State University College of Law
Jonathan Weinberg
Distinguished Professor
Wayne State University Law School
Amelia Wilson
Assistant Professor of Law
Elisabeth Haub School of Law at Pace University
Michael J. Wishnie
William O. Douglas Clinical Professor of Law
Yale Law School
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.