Amicus Curiae Brief — INS v. National Center for Immigrants' Rights, Inc.

No. 90-1090

IN THE

SUPREME COURT OF THE UNITED STA

A Ge: cn

October Term. 1990

IMMIGRATION & NATURALIZATION SERVICE. et al.

Petitioners.

NATIONAL CENTER FOR IMMIGRANTS’ RIGHTS. et al.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the

Ninth Circuit

BRIEF AMICUS CURIAE OF THE

AMERICAN IMMIGRATION

LAWYERS ASSOCIATION

Maureen Callahan

Willamette University

College of Law

250 Winter Street, S.F.

Salem, OR 97301

Lawrence H. Rudnick

STEEL RUBIN & RUDNICK

936 Public Ledger Bldg.

6th & Chestnut Streets

Philadelphia, PA 19106

Ignatious Bau

Sara Campos

San Francisco Lawver’'s

Comm. for Urban Affairs

301 Mission Street.

Ste. 400

San Francisco, CA 94105

Ivette Pena

Joshua Floum

Heller, Ehrman. et al.

333 Bush Street

San Francisco, CA 94104

Counsel for Amicus Curiae

PACKARD PRESS

LEGAL DIVISION, 1617 JFK BOULEVARD, PHILA, PA 19103 (215) 563-9000

Bupreme Court, Us.

ie? kp

Beis vy Myf wtf ss

_

oy ee eee

TABLE OF CONTENTS

Page

py’ B Ge fee . yy |.) +. Re i

TABLE OF AUTHORITIES .................... ili

STATEMENT OF INTEREST .................. 1

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

a Sas Gdns bese sbeescconccceesess 3

I. Deference to the INS’s interpretation of 8 U.S.C.

§ 1252(a)(1) is neither required nor appropriate

under the circumstances of this case........... 3

A. Chevron Does Not Apply Under the Circum-

Ne ee eeeees’e 4

1. The Chevron standard.................. 4

2. Chevron’s deference requirement applies

only to some kinds of interpretive ques-

tions and only under some circum-

bee eee e ness nwacseceucaccececes 5

3. Chevron does not require deference to an

agency assessment of its own authority... 7

4. Chevron only requires deference where

the circumstances warrant deference to

the agency interpretation............... 13

5. The circumstances of the present case

do not warrant deference to the INS’s

interpretation of § 1252(a)(1)........... 14

i ee ee i tg 17

B. Even if Chevron does apply under the circum-

stances of this case, deference should not be

afforded to the INS’s interpretation of

§ 1252(a)(1) because Congress’ intent is |

SCRE ee bs cebeeSneeenndeseenheccesees 17

TABLE OF CONTENTS — (Continued)

Page

2. Section 1252(a)(1)’s role in the Immigration

and Nationality Act as a whole and the legisla-

ok. ee ee 24

C. Even if the Court’ concludes that

§ 1252(a)(1) is ambiguous with respect to the

Attorney General’s authority to impose a blan-

ket condition unrelated to assuring appear-

ance at the hearing, the INS’s interpretation

should be rejected as impermissible and un-

re ee 25

COCA ccccccccccceccsusieel 28

CERTIFICATE OF SERVICE................... 29

TABLE OF AUTHORITIES

Cases: Page

Adams Fruit Co. v. Barrett, 110 S. Ct. 1384

DP TUscbcadbeeececceoccoeccoccecoes 11

Bethesda Hosp. Ass'n v. Bowen, 485 U.S. 399

PUP eec rea ebsedsccecccceccccceces 18

Board of Governors v. Dimension Financial Corp.,

SD MEE, gv cosccccccccccccceccce 4

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

ec ee ee sas ecceceeeercccccsce 13, 14

Bowsher v. Synar, 478 U.S. 714 (1986).......... 12

Carlson v. Landon, 342 U.S. 524 (1952)....... 20, 23

Chemical Mfrs. Ass'n v. NRDC, 470 U.S. 116

DUPE CCER Ge ences seccescoecescccceces 17

Chevron U.S.A. v. Natural Resources Defense Coun-

cil, Inc., 467 U.S. 837 (1984) ............ passim

Chrysler Corp. v. Brown, 441 U.S. 281 (1979).... 11

Commodities Futures Trading Comm'n v. Schor,

TE, ccc cecccecccccccccccces 8

Connecticut Dep't of Income Maintenance v. Heck-

SO es SD CUED oc cc ccc cccccccccce 7,14

Dames & Moore v. Regan, 453 U.S. 654 (1981)... 13

DeBartolo Corp. v. Florida Gulf Coast Bldg. and

Constr. Trades Council, 485 U.S. 568 (1988) . 26

Department of the Treasury, JRS v. FLRA, 110 S.

TE Petes se eecccascececccscc: 10

Department of Transp. v. Paralyzed Veterans, 477

eee ches cecedcoevccceces 7

Dole v. United Steelworkers of America, 110 S. Ct.

eee ike sceecccoccccccces 8,17

TABLE OF AUTHORITIES — (Continued)

Cases: Page

EEOC v. Commercial Office Products Co., 486 U.S.

Be GE vanced nndCandecedencéditiewbuees 14

FDIC v. Philadelphia Gear Corp., 476 U.S. 426

DE das audedesdnaudeseuedecdeudeeenseuues 14

Heckler v. Campbell, 461 U.S. 458 (1983) ........ 22

Homemakers North Shore, Inc. v. Bowen, 832 F.2d

ee es A a sis cduevsesdevecksenéves 5

In re Milburn, 34 U.S. (9 Pet.) 704 (1835) ....... 21

INS v. Carcdoza-Fonseca, 480 U.S. 421 (1987). 4, 5, 6,

9, 13, 14, 18, 22

INS v. Chadha, 462 U.S. 919 (1983)............. 12

INS v. Lopez-Mendoza, 468 U.S. 1032 (1989)..... 26

INS v. Stevic, 467 U.S. 407 (1984) .............. 9

Japan Whaling Ass'n v. American Cetacean Soc’y,

Sey Ce ae EE co onecdenccauaeeeceoedie 18

John Doe I v. Meese, 690 F. Supp. 1572 (S.D. Tex.

DDN céanesaudeedsctedcbudcaaseeasecaucads 27

K Mart Corp. v. Cartier, Inc., 486 U.S. 281

SEE 86 460-60-0800040614600000R0E dR S46 eb KO0S: 18

Marbury v. Madison, 5 U.S. (1 Cranch) 137

SE hb 0b Seb0n6esesdsensasnusdibaiecees 12

Matter of Andrade, 19 I&N Dec. 488 (1987)...... 15

Matter of Patel, 15 I&N Dec. 666 (1976)......... 15

Matter of Shaw 17 I&N Dec. 177 (1979)......... 15

Matter of Spiliopoulos, 16 I&N Dec. 561 (1978)... 15

Matter of Toscano-Rivas, 14 I&N Dec. 523 (BIA,

Pt Peiivcchanevendudeaebeaeeende 15, 16

iV

TABLE OF AUTHORITIES — (Continued)

Cases: Page

McNary v. Haitian Refugee Center, 111 S. Ct. 888

PE Ceiccchacndieuteseceuesenseaenaaeces 8,9

Mississippi Power & Light v. Mississippi ex rel.

Moore 487 U.S. 354 (1988) ... 2.66.66 cece eee 7,8

Motor Vehicle Mfrs. Ass'n v. State Farm Mutual

Automobile Ins. Co., 463 U.S. 29 (1983)...... 16

National Center for Immigrants’ Rights, Inc. v.

INS, 913 F.2d 1350 (9th Cir. 1990) . 9, 22, 24, 25,

26

NLRB v. City Disposal Systems, 465 U.S. 822

PRD 6 cédkne eek Kendebesbenedsenestsedesee 8

NLRB v. United Food & Commercial Workers’

Union, 484 U.S. 112 (1987) ............... 7,14

Pauley v. Bethenergy Mines, Inc., 59 U.S.L.W. 4778

SE Pa ch ec deccée seed ebedsbeooeuce 14

Ramos v. Thornburgh, 732 F. Supp 609 (E.D. Tex

DRd Hess Gnedeebekeedebebecewecesuedeceus 27

Regents of Univ. of Cal. v. Public Employment Rel.

Be Se ee Se CUED oh acccdceccesécccecs 18

Reynolds v. United States, 80 S. Ct. 30 (1959).... 21

Rubenstein v. Brownell, 206 F.2d 449 (D.C. Cir.

Pc ccnseckseveccceesneneetinstrseacecess 21

Sullivan v. Everhart, 110 S. Ct. 960 (1990)....... 18

Sullivan v. Zebley, 110 S. Ct. 885 (1990)......... 23

United States v. Boyle, 469 U.S. 241 (1985)...... 7

United States v. City of Fulton, 475 U.S. 657

SED 6 0v0tanness eéuensecussvecsveseucsens 18

United States v. Eichman, 110 S. Ct. 2404 (1990). 12

United States v. Nixon, 418 U.S. 683 (1974) ..... 12

Vv

TABLE OF AUTHORITIES — (Continued)

Cases: Page

United States v. Riverside Bayview Homes, Inc. 474

St Pcs civducnagenssevuesooucees 25

Yanish v. Barber, 73 S. Ct. 1105 (1953)....... 20, 21

Young v. Community Nutrition Inst. 476 U.S. 974

DE bes NURS OdG04005666000000000060408650 14

Youngstown Sheet & Tube Co. v. Sawyer 343 U.S.

ES ee 12, 13

STATUTES AND REGULATIONS:

Pe iké ceed ecngeasesecenedckesenues 4, 24

i cickectecakepecéedeenwesaenne )

i nce c ashe neeesenedenseeundeusns 3

a os dc ckbubeddes eweeus passim

SUS fo b> eee iicennetaneesketees 20

ick die ace ceckesvecuebesebs 24

is OF EID occccccccccecvccees 24, 25

Ps ES OD dove wecccctcacccecccesss 25

PU PE AGCECRGR SSS eveweeccedcoceetecceces 4

Dre © BIE oo ccccccccccccccccccess 27

es CII, oo cc scccccescccccccecves 27

pets RB 5) ee 27

icc esGeneseccesecessecscoceces 27

PN I ss oa bbb 6 666b00cee6e00esens0s 24

Immigration Reform and Control Act of 1986, Pub.

L. No. 99-603, 100 Stat. 3359.............. 9, 24

vi

TABLE OF AUTHORITIES — (Continued)

Page

LEGISLATIVE HISTORY:

H.R. Rep. No. 1192, 81st Cong., 1st Sess.

SEED Seed bececdecccesccussenscocvescoces 22

S. Rep. No. 2239, 21st Cong., 2d Sess. (1950).... 22

OTHER AUTHORITIES:

Anthony, Which Agency Interpretations Should Get

Judicial Deference? — A Preliminary Inquiry,

40 Admin. L. Rev. 121 (1988)............... 5

Black’s Law Dictionary, (5th ed. 1979)........ 19, 22

Scalia, Judicial Deference to Administrative Inter-

pretations of Law, 1989 Duke L.J.51..... 11, 17

Schwartz, B. Administrative Law, 10 (3rd ed.

EPSPS TTTTTTTT TTT TTT TLE 5,6

Schwartz, B. Administrative Law, 171 (3rd ed.

PP ENeenesevnsceecesenscoseccsseacoesees 11

Starr, Judicial Review in the Post-Chevron Era, 3

Yale J. on Reg. 283 (1986)..............55-. 5

Sunstein, Judicial Review of Administrative Action

in a Conservative Era, 39 Admin. L. Rev. 353

Sa ceedebneskasessdecénceesesuceceser 8,11

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

IMMIGRATION & NATURALIZATION SERVICE, et al.

Petitioners,

Vv.

NATIONAL CENTER FOR IMMIGRANTS’ RIGHTS, et al.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the

Ninth Circuit

BRIEF AMICUS CURIAE OF THE

AMERICAN IMMIGRATION

LAWYERS ASSOCIATION

STATEMENT OF INTERESTS

Amicus AMERICAN IMMIGRATION LAWYERS

ASSOCIATION is a national association of practicing

lawyers and law school professors who practice and

teach in the fields of immigration and nationality law.

AILA has as its objectives, to advance the administration

of law pertaining to immigration, nationality, and natu-

ralization; to cultivate the jurisprudence therein; to

promote reforms in the laws with regard thereto, and to

facilitate the administration of justice therein; and to

]

2

evaluate the standard of integrity, honor, and courtesy of

those appearing in a representative capacity in immigra-

tion, nationality, and naturalization matters.

The membership of amicus practice regularly before

the Immigration and Naturalization Service (hereinafter

INS) in all of its districts nationwide, (hereinafter

EOIR), and before the Board of Immigration Appeals;

amici appear as well before the federal district courts

and federal circuit courts of appeal of the United States,

and have argued matters of immigration, nationality,

and naturalization law before the Supreme Court of the

United States.

AILA has a direct and serious interest in the devel-

opment of the immigration law and in the case now

before this Court. The issue upon which the court has

granted certiorari directly involves the practice of immi-

gration law and the interest of AILA’s members.

Whether qualifying aliens in deportation proceedings

will be able to continue or seek employment during the

pendency of deportation proceedings is of direct inter-

ests to AILA’s membership and the clients of its mem-

bers.

The familiarity of amicus with the nature of the

proceedings involved, and the public interest at stake

lead amicus to believe the court would benefit from the

additional legal argument and interpretation with re-

spect to the substantive question of law here at issue.

SUMMARY OF ARGUMENT

Deference to the JNS interpretation of 8 U.S.C.

§ 1252(a)(1) is neither required nor appropriate under

the circumstances of this case. The INS is not entitled to

the deference required by Chevron, U.S.A. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

Chevron does not require deference to an agency assess-

ment of its own authority. Chevron deference does not

apply to an interpretative question where the issue

concerns the scope of the agency’s own authority.

3

Chevron deference is not warranted in the circum-

stances of this case. The statutory scheme is neither

technical, nor complex. Moreover, the agency’s position

is a dramatic change from its past policy which entitles

it to less deference.

Congress’ intent with regard to the statute is in any

event clear. The plain meaning of the statute only

authorizes consideration of whether a bond will secure

the alien’s appearance at the deportation hearing or a

determination as to whether he presents a security risk.

Utilizing the traditional tools of statutory construction,

Congress’ intent is apparent.

Section 1252 considered within the context of the

Statute as a whole is clear and the regulation is not

authorized. Finally, even if the statute were found to be

ambiguous, the Attorney General’s regulation is unrea-

sonable and should be rejected.

ARGUMENT

I. DEFERENCE TO THE INS’S INTERPRETATION OF

8 U.S.C. SEC. 1252(a)(1) IS NEITHER REQUIRED

NOR APPROPRIATE UNDER THE CIRCUM-

STANCES OF THIS CASE

The principal issue before the Court is whether the

Attorney General! may in the exercise of his discretion

under 8 U.S.C. sec. 1252(a)(1) (1988) establish a blan-

ket rule requiring the inclusion of “no work” conditions

in the release bonds authorized by the statute. Both

respondents and the Court of Appeals read sec.

1252(a)(1) to preclude such a blanket rule. Petitioners?

assert a contrary reading of the statute, and claim that

1. The challenged regulation was promulgated by the Immi-

gration and Naturalization Service (“INS”) in the exercise of

authority delegated to it by the Attorney General. See 8 C.F.R. 2.1

(1991). This brief refers to the Attorney General and the INS

interchangeably with respect to the scope of authority issue.

2. Petitioners are referred to herein collectively as “the INS.”

4

their reading is entitled to deference under Chevron,

U.S.A. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984).

The INS’s reliance on Chevron as a basis for defer-

ring to the agency’s interpretation is inapposite in the

present case for at least three reasons. First, Chevron

simply does not apply under the circumstances pre-

sented. Second, even if Chevron’s analysis applies to the

interpretive task at hand, Congress’ intent is clear and

thus deference is inappropriate. Third, even if Congress’

intent were not clear, deference would be unwarranted

because the agency’s interpretation is impermissible and

unreasonable. This brief addresses these three reasons

in turn.

A. Chevron Does Not Apply Under the Circumstances

of this Case

1. The Chevron Standard

Chevron established a two step process under which

the courts are to ascertain whether to defer to an

administrative agency’s interpretation of a statute which

the agency is charged with administering. It first re-

quires an assessment of “whether Congress has directly

spoken to the precise question at issue.” 467 U.S. at

842-43. Where the court can ascertain Congress’ intent,

effect is to be given to that intent and thus the agency’s

views are irrelevant. Jd. See also Board of Governors v.

Dimension Financial Corp., 474 U.S. 361, 368 (1986)

(“[t]he traditional deference courts pay to agency inter-

pretation is not to be applied to alter the clearly ex-

pressed intent of Congress”). Where the court using the

traditional tools of statutory construction cannot discern

Congress’ intent with respect to an issue, it is to defer to

a permissible agency interpretation of the statute. 467

U.S. at 843. See also INS v. Cardoza-Fonseca, 480 U.S.

421, 446-48 (1987).

5

2. Chevron’s deference requirement applies only to

some kinds of interpretive questions and only under

some circumstances

In the present case, the INS asserts that because the

question before the Court involves statutory interpreta-

tion, the agency interpretation is entitled to deference

under Chevron. Pet. Brief at 33. This ignores the fact

that the term “statutory interpretation” refers to a variety

of distinct interpretive tasks, some of which are appro-

priate for deference under Chevron and some of which

are not. See Cardoza-Fonseca, 480 U.S. at 448 (differ-

entiating between kinds of interpretive tasks in context ~

of determining the appropriateness of deferring to

agency interpretation of statutes). See also Homemakers

North Shore, Inc. v. Bowen, 832 F.2d 408, 412 (7th Cir.

1987) (Easterbrook, J.) (“[d]ifferent statutes transfer

different sorts of implementing authority to agencies,

and therefore there is not one but many standards of

deference when agencies’. interpret statutory

language’).

Although some uncertainty exists with respect to

the precise scope of Chevron’s deference requirement,

compare Cardoza- Fonseca, 480 U.S. at 446-48 (majority

opinion discussing the circumstances under which def-

erence to an agency is appropriate) with id. at 453-455

(Scalia, J., concurring in the judgment, and disagreeing

with the majority’s characterization of the scope of

Chevron’s deference requirement); see also Anthony,

Which Agency Interpretations Should Get Judicial Def-

erence? — A Preliminary Inquiry, 40 Admin. L. Rev.

121, 126-27 (1988) (noting the uncertainty with respect

to Chevron’s scope); Starr, Judicial Review in the Post-

Chevron Era, 3 Yale J. on Reg. 283, 299-300 (1986)

(noting unresolved issues regarding Chevron’s scope),

the INS cannot be correct in its suggestion that Chevron

requires deference to an agency position merely because

a question of statutory interpretation is at issue. Because

administrative agencies derive their authority solely

from statutes, see Schwartz, B., Administrative Law 10

6

(3d ed. 1991) (“[t]he administrative agency is a creature

of the legislature . . .”), every action taken by a federal

administrative agency in some sense entails statutory

interpretation. Acceptance of the INS’s position would

favor the virtual abdication of the courts’ reviewing

function with respect to administrative action. Thus,

despite some language in the case which might be read

to require across-the-board, unequivocal deference in

the face of statutory ambiguity, the sounder reading of

Chevron requires deference only with respect to some

types of interpretive questions, and only under some

circurnstances. Rather than stating an absolute require-

ment of deference, Chevron simply establishes a strong

preference or presumption in favor of an agency inter-

pretation of an ambiguous statutory term, which can be

overcome in an appropriate case. What constitutes an

appropriate case for deference depends upon two fac-

tors: the type of interpretive question at issue and the

circumstances under which the agency has acted.

The text of the Chevron decision supports this view.

In Chevron, the decision as to whether to defer to the

agency interpretation rested at least in part upon the

type of interpretive task at hand and the appropriateness

of deferring under the circumstances:

In these cases the Administrator’s interpretation

represents a reasonable accommodation of mani-

festly competing interests and is entitled to defer-

ence: the regulatory scheme is technical and com-

plex, the agency considered the matter in a detailed

and reasoned fashion, and the decision involves

reconciling conflicting policies. Congress intended

to accommodate both interests, but did not do so

itself on the level of specificity presented by these

cases.

467 U.S. at 865. See also id. at 848 (noting that the

statutes at issue “are a lengthy, detailed, technical,

complex, and comprehensive response to a major social

issue.”); Cardoza-Fonseca, 480 U.S. 421 (demonstrating

7

that the deference principle does not apply in every case

of agency interpretation of statutes within its charge);

NLRB v. United Food & Commercial Workers’ Union,

484 U.S. 112, 123-24 n.20 (1987) (considering in deter-

mining the appropriateness of deference the consistency

of the agency’s interpretation with its past pronounce-

ments).

3. Chevron does not require deference to an agency

assessment of its own authority

As Chevron itself demonstrates, deference to an

agency interpretation applies where the traditional tools

of statutory construction fail to produce a conclusive

determination of the meaning of what might be called a

substantive statutory term. Where, on the other hand,

the interpretive question at issue involves the scope of

the agency’s authority, deference is neither warranted

nor appropriate.

In Chevron, the Court deferred to the EPA’s inter-

pretation of the term “stationary source” as it was used

by Congress in the 1977 amendments to the Clean Air

Act. 467 U.S. at 866. In a series of post-Chevron cases,

the Court has applied the Chevron analysis to agency

interpretations of such substantive provisions. See, e.g.,

Department of Transp. v. Paralyzed Veterans, 477 U.S.

597, 612-13 n.14 (1986) (applying Chevron to construc:

tion of the statutory term “Federal financial assis-

tance”); Connecticut Dep’t of Income Maintenance v.

Heckler, 471 U.S. 524, 530 (1985) (“{iJn the absence of

a statutory definition of the term ‘institution for mental

diseases,’ it is appropriate to consider the Secretary’s

interpretation of that term.”); United States v. Boyle,

469 U.S. 241, 246 n.4 (1985) (applying Chevron’s def-

erence requirement to construction of the statutory term

“reasonable cause’’).

Properly understood, Chevron does not require def-

erence when the interpretive question at issue concerns

the scope of the agency’s own authority. Although this

distinction has been expressly addressed infrequently in

this Court’s case law, Justice Brennan in his dissenting

8

opinion in Mississippi Power & Light v. Mississippi

ex rel. Moore, 487 U.S. 354, 387 (1988), identified the

problem and properly concluded that Chevron deference

is inappropriate where the agency has construed a

statute designed to confine the scope of its own jurisdic-

tion. While the statute at issue here cannot be so

characterized, Justice Brennan’s reasoning applies with

equal force to the construction of statutory terms which

go to the scope of the agency’s authority to act.2 A

contrary reading of Chevron would inappropriately ren-

der the agencies the judges of their own cause. See

Sunstein, Judicial Review of Administrative Action in a

Conservative Era, 39 Admin. L. Rev. 353, 368 (1987)

(panel discussion) (urging the rejection of a broad

reading of Chevron in part because “those who are

limited in their authority by law should not be the judge

of those limits.”).

This Court has demonstrated its willingness to dis-

regard Chevron in a variety of interpretive contexts. For

example, the Court has chosen not to refer to Chevron’s

deference requirement when construing non-substantive

statutory terms concerning federal court jurisdiction to

review administrative action. Thus, McNary v. Haitian

3. Justice Brennan noted in Mississippi Power that the Court

has in some instances deferred to agency determinations with

respect to scope of authority. 487 U.S. at 387. Such cases, however,

concerned either statutes under which Congress had allocated such

authority to the agency, see Commodities Futures Trading Comm'n

v. Schor, 478 U.S. 833, 844 (1986) (the “the CFTC’s long-held

position that it has the power to take jurisdiction over counterclaims

such as [that at issue] is eminently reasonable and well within the

scope of its delegated authority”) (emphasis added), or legislative

schemes under which agency expertise is deemed to be useful in

determining the scope of authority, see NLRB v. City Disposal

Systems, 465 U.S. 822, 829-30 (1984) (relying in part on an agency

expertise explanation for deferring to the NLRB’s view of the scope

of its authority under section 7 of the National Labor Relations Act).

Although some justices have favored application of Chevron to

questions concerning the scope of an agency’s authority, see, e.g.,

Dole v. United Steelworkers of America, 110 S. Ct. 929, 944 (1990)

(White, J., dissenting); Mississippi Power & Light Co., 487 U.S. at

380-82 (Scalia, J., concurring), a majority of the Court has never

expressly rejected Justice Brennan’s analysis.

9

Refugee Center, 111 S. Ct. 888, 896-97 (1991), rejects

the INS'’s interpretation 8 U.S.C. sec. 1160(e)’s judicial

review provision without reference to deference to the

agency’s views.* Similarly, in Cardoza-Fonseca, 480

U.S. 421, the Court carefully examines the relevant

Statutes’ plain meaning and legislative history with no

suggestion that the INS’s interpretation is entitled to

deference. Jd. at 421-43. The Court then expressly

rejects the INS’s assertion that such deference is re-

quired. Id. at 445. It distinguishes between “pure ques-

tions[s] of statutory construction” and the application of

legal terms to particular circumstances. Pure legal ques-

tions are “for the courts to decide.” Thus, as was the case

in Cardoza-Fonseca itself, no deference is to be afforded.

Questions concerning the application of legal standards

to given facts are at least under some circumstances

allocated to the agency by Congress, and thus the courts

will defer to a reasonable agency construction. /d. at

446-48. See also INS v. Stevic, 467 U.S. 407 (1984)

(decision released several weeks before Chevron in

which no deference was afforded to the INS’s resolution

of a pure question of law).

The principal issue before the Court in this case is

whether the INS acted outside the scope of the authority

allocated tu the Attorney General by Congress in 8

U.S.C. sec. 1252(a)(1). See National Center for Immi-

grants’ Rights, Inc. v. INS, 913 F.2d 1350, 1358 (9th

Cir. 1990) (characterizing the issue as whether the

challenged regulation is beyond the statutory authority

conferred on the Attorney General). The INS accepts

this characterization in arguing that the challenged

4. Although one could assert that Chevron does not apply

under these circumstances because the agency is not charged with

“administering” the judicial review provision at issue, see 467 U.S.

at 842, the provision is part of the Immigration and Nationality Act,

8 U.S.C. sec. 1101 et seg. (1988), as amended by the Immigration

Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat.

3359, and thus is a part of the legislative scheme which it is the

INS's principal task to administer.

10

regulation reflects a policy change but not a reassess-

ment of the agency’s view of its statutory authority. Pet.

Brief at 34. Such questions of agency authority turn

upon whether the agency’s action was ultra vires and

thus invalid.>

Under section 1252(a)(1), when an individual has

been taken into custody pending a determination of

deportability, the Attorney General is authorized to ex-

ercise discretion with respect to whether that individual

shall remain in custody, be released under bond “con-

taining such conditions as the Attorney General may

prescribe,” or be released on conditional parole. Respon-

dents assert, and the Court of Appeals agreed, 913 F.2d

at 1374, that this authority does not extend to the

imposition of a blanket rule requiring “no work” condi-

tions in release bonds.

Such disputes over whether the agency’s actions

were ultra vires are fundamentally different from

Chevron-type disagreements over the meaning of a

substantive term. In the latter cases, deference is a

judicial response to uncertainty with respect to where

Congress wished to allocate the interpretive authority

with respect to a particular statutory term. In the event

of such uncertainty over whether the agency or the

courts have been charged with interpreting a statutory

term, Chevron states a rule under which in some cir-

cumstances the courts will assume that Congress in-

tended for the agency to decide. Cf’ Department of the

Treasury, IRS v. FLRA, 110 S. Ct. 1623, 1629 (1990)

5. Alternatively, the question before the Court could be cast as

whether the INS abused its discretion in promulgating the work

authorization regulations. Section 1252(a)(1) undoubtedly vests

discretionary authority in the Attorney General — the question

before the Court is whether the delegatee of that authority has

abused the discretion afforded. Under these circumstances, to defer

to the INS interpretation of sec. 1252 would permit the agency to

determine whether or not it had abused its own discretion. Such

deference would preclude meaningful judicial review of agency

discretionary decisions.

11

(“when an agency is charged with administering a

Statute part of the authority it receives is the power to

give reasonable content to the statute’s textual ambigu-

ities.”); Adams Fruit Co. v. Barrett, 110 S. Ct. 1384,

1390 (1990) (“[a] precondition to deference under Chev-

ron is a congressional delegation of administrative au-

thority.”). See also Scalia, Judicial Deference to Admin-

istrative Interpretations of Law, 1989 Duke L.J. 511,

516. When the interpretive task concerns the scope of

the agency’s authority, however, such uncertainty with

respect to interpretive responsibility is not at issue. It

makes little sense under such circumstances to assume

that Congress intended for the agency to determine the

contours of its own power. A contrary interpretation of

Chevron’s scope would violate the sound proposition that

“foxes shouldn’t guard henhouses.” Sunstein, supra p.

8, at 368.

The refusal to extend Chevron’s deference require-

ment where the interpretive task concerns whether the

agency’s action was ultra vires is sound. Because the

administrative agencies do not operate under a direct

grant of power from the Constitution, they are entirely

dependent upon Congress for their authority. See

Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979)

(“[t]he legislative power of the United States is vested in

the Congress, and the exercise of quasi-legislative au-

thority by governmental departments and agencies must

be rooted in a grant of such power by the Congress and

subject to limitations which that body imposes.”);

Schwartz, B., Administrative Law 171 (3d ed. 1991)

(noting that application of the notion of ultra vires to

administrative action is “inherent in the constitutional

positions of agencies and courts.”). Thus the rigorous

application of the ultra vires doctrine is essential to the

maintenance of a government within the confines of the

existing Constitution, and is well within the courts’

constitutionally-established function. Given the particu-

lar importance of scope of authority questions in the

agency context, the most appropriate construction of

12

Chevron is to limit its application to interpretive tasks

which concern the meaning of a substantive statutory

term where Congress has not clearly allocated interpre-

tive responsibility. Cf Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 593-94 (1952) (Frankfurter, J.,

concurring) (“[t]he accretion of dangerous power does

not come in a day. It does come, however slowly, from

the generative force of unchecked disregard of the

restrictions that fence in even the most disinterested

assertion of authority.”).

Finally, application of Chevron’s deference require-

ment to scope of authority questions would afford the

administrative agencies a privileged status not afforded

to the constitutionally established political branches. At

least since Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803), the courts have passed on the constitutionality of

the actions of the political branches. Where the courts

hold actions by Congress or the President to be uncon-

stitutional, they are in a sense saying that the action was

ultra vires, ie., that the action exceeded the actor’s

authority under the enabling text. For example, the

Court invalidated Congress’ efforts to use the legislative

veto as a check on executive branch action in JNS v.

Chadha, 462 U.S. 919 (1983). Similarly, in Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. at 587-88, the

Court precluded President Truman’s efforts to seize U.S.

steel mills during a labor dispute. In these cases and

dozens of others, the Court displaced the political

branches assessment of the scope of their own authority.

See, e.g., United States v. Eichman, 110 S. Ct. 2404

(1990) (invalidating the federal Flag Protection Act of

1989); Bowsher v. Synar, 478 U.S. 714 (1986) (invali-

dating portion of the Gramm-Rudman-Hollings Act);

United States v. Nixon, 418 U.S. 683 (1974) (rejecting

President Nixon’s characterization of the scope of exec-

utive privilege). Whatever Chevron means, it should not

be construed so as to shield the agencies from review for

ultra vires action to a greater extent than the

13

constitutionally-established political branches are

shielded in analogous circumstances.®

4. Chevron only requires deference where the cir-

cumstances warrant deference to the agency interpre-

tation

The INS’s talismanic invocation of Chevron is also

inappropriate because a proper application of that case

looks to the circumstances before affording deference to

the agency’s determination.

The Court in Chevron expressly referred to the

circumstances in explaining the deference requirement.

See 467 U.S. at 865 (noting that the statutory amend-

ments at issue were “technical and complex” and that

the agency “considered the matter in a detailed and

reasoned fashion”). Moreover, despite some categorical

language in Chevron, this Court has routinely consid-

ered the circumstances of a given case in deciding

whether deference is to be given to the agency’s inter-

pretation. In perhaps the best known example, the Court

declined to apply Chevron’s deference requirement to a

pure question of law in Cardoza-Fonseca. 480 U.S. at

446-48. A variety of other factors, such as the complexity

of the regulatory scheme at issue, the extent to which

the agercy interpretation is the product of agency coun-

sel’s post hoc rationalizations, and the consistency or

long-standingness of the agency interpretation, have

also been considered. See, e.g., Bowen v. Georgetown

6. One could argue with respect to the actions of Congress and

the President that the presumption in favor of the constitutionality

of the political branches’ actions, JNS v. Chadha, 462 U.S. at 944

(courts begin with the presumption that Congress’ 2cts are valid);

Dames & Moore v. Regan, 453 U.S. 654, 668 (1981) (quoting

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 637 (Jackson,

J., concurring)) (applying same principle to presidential action),

functions much like the Chevron deference requirement. The

analogy is, however, flawed. The presumption in favor of the

political branches does not result in the minimal scrutiny which

frequently results under Chevron’s reasonableness inquiry.

14

Univ. Hosp., 488 U.S. 204, 212-13 (1988) (declining to

defer to agency interpretations which were mere litiga-

tion positions); NLRB v. United Food & Commercial

Workers’ Union, 484 U.S. 112, 123-24 n.20 (1987)

(expressly considering the consistency of the agency’s

interpretation with its past pronouncements in deter-

mining the appropriateness of deference); Cardoza-

Fonseca, 480 U.S. at 446 n.30 (identifying inconsistency

with past agency interpretations as additional reason for

declining to defer); Young v. Community Nutrition

Inst., 476 U.S. 974, 981 (1986) (quoting Chemical Mfrs.

Ass'n v. NRDC, 470 U.S. 116, 125 (1985)) (referring to

the statute’s complexity in explaining deference to

agency's interpretation); FDIC v. Philadelphia Gear

Corp., 476 U.S. 426, 438-39 (1986) (expressly referring

to the circumstances of the case in concluding that

deference should be afforded to the agency’s statutory

interpretation); Connecticut Dep't of Income Mainte-

nance v. Heckler, 471 U.S. 524, 528 (1985) (noting

long-standingness of agency interpretation). See also

EEOC v. Commercial Office Products Co., 486 U.S. 107,

125 (1988) (O’Connor, J., concurring in part and con-

curring in the judgment) (noting that deference is

particularly appropriate with respect to “technical is-

sue[s] of agency procedure.”).

5. The circumstances of the present case do not

warrant deference to the INS’s interpretation of sec.

1252(a)(1)

Numerous factors weigh against judicial deference

to the INS’s interpretation of sec. 1252(a)(1).

First, the agency’s interpretation is neither consis-

tent nor longstanding. This Court has recently stated,

“aS a general matter, of course, the case for judicial

deference is less compelling with respect to agency

positions that are inconsistent with previously held

views”. Pauley v. Bethenergy Mines, Inc., 59 U.S.L.W.

4778, 4783 (June 25, 1991) (citing Bowen v. George-

town Univ. Hosp., 488 U.S. 204, 212-213 (1988)).

15

Unlike in Pauley, the Attorney General, the Immi-

gration Service, and the Board of Immigration Appeals

have not held “unswervingly” to the view that a no work

rider can be attached to immigration bonds. The Immi-

gration and Nationality Act was passed in 1952. The

Immigration Service first promulgated the regulations

here at issue in 1983. Prior to that time, the Immigration

Service had never promulgated a regulation, nor for that

matter, taken a position in adjudications that it had the

authority to impose a blanket no work rider on immigra-

tion bonds.

The Attorney General’s delegate, the Board of Im-

migration Appeals consistently held that an alien was

not to be detained or required to post bond unless he

either posed a threat to national security or was a poor

bail risk. See Matter of Patel, 15 1&N Dec. 666 (1976)

and Matter of Spiliopoulos, 16 1&N Dec. 561 (1978). As

these decisions reflect, the Board consistently held that

employment was a positive factor in bond determina-

tions as it reflected an attachment to the community

which made it more likely that the alien would appear at

his or her deportation hearing. The absence of employ-

ment was consijered a negative factor justifying a

substantial bond. See Matter of Shaw, 17 1&N Dec. 177

(1979). See also Matter of Andrade, 19 I&N Dec. 488

(1987). Thus, the Board has consistently viewed its task

in bond determination proceedings to be limited to a

determination of whether the alien posed a security risk

or a risk of flight. A stable employment history was

consistently considered a favorable factor.

In Matter of Toscano-Rivas, 14 1&N Dec. 523 (BIA,

1973)(AG 1974), the Immigration Service first asserted

a right to have a condition in a bond that an alien not

seek or continue unauthorized employment. However,

the INS assertion of this authority was based on the

“peculiar factual situation” of the case. Toscano-Rivas,

at 528. The Board held the no-work condition to be an

impermissible use of the detention power.

16

The matter was reviewed by the Attorney General

who concluded that the statute did authorize “in at least

some circumstances” a bar against unauthorized em-

ployment in deportation bonds. The Attorney General

also held that such conditions must be specifically

governed by a published regulation of the Service.

Lacking such a regulation, the Attorney General sus-

tained the Board’s decision. Toscano-Rivas, at 553 and

556. The Attorney General did not assert a right to

no-work conditions in a bond on an across-the-board

basis. Moreover, the Attorney General’s decision reflects

the attempt to impose such a bond rider even on a

case-by-case basis as an abrupt change from past prac-

tice.

Finally, the Immigration Service has not provided a

detailed and reasoned explanation so as to justify its

change in policy. Motor Vehicle Mfrs. Ass’n v. State

Farm Mutual Auto Mobile Ins. Co., 463 U.S. 29, 57

(1983).

Second, the agency lacks expertise with respect to

the purported objective of the challenged regulation,

and thus one of the traditional justifications for deferring

to an agency’s interpretation is lacking. The INS’s

purported justification for the challenged regulation is

the protection of the United States’ labor markets from

an influx of alien labor. See Pet. Brief at 26-27. Neither

the Attorney General nor the INS have particular exper-

tise with respect to either labor market conditions or the

likely impact that the challenged regulation would have

on persons seeking employment in the United States. To

the extent that the INS can be said to have expertise, it

is not in the area of labor economics, but in the admis-

sion of aliens into the United States.

Third, unlike Chevron and many of its progeny, this

case does not require an analysis of technical or scien-

tific data. The challenged regulation relates to a straight-

forward regulatory scheme which cannot be cast as

“technical” in the Chevron sense of the term. In cases

involving technical or scientific matters, deference is

17

afforded at least partly to increase the likelihood that a

sound decision will be made. See Scalia, supra p. 11, at

514 (stating that where expertise is at issue the agency

is thought more likely to reach the right result). Where

no such data is at issue, deference does not increase the

chances that the best result will be reached.

6. Conclusion

Properly understood, Chevron does not state a lock

step rule of deference whenever an agency takes a

position with respect to the meaning of a statute which

it is charged with implementing. Instead, Chevron re-

quires deference to reasonable agency interpretations of

substantive statutory terms unless such deference is

inappropriate or unwarranted under the circumstances.

Deference to the INS’s position is inappropriate in the

present case on both of these grounds. First, the inter-

pretive task does not concern a substantive term, but

rather concerns whether the INS stayed within the

contours of the authority afforded to the Attorney Gen-

eral by Congress. Second, the circumstances of this case

do not favor such deference.

B. Even if Chevron Does Apply Under the Circum-

stances of this Case, Deference Should Not be

Afforded to the INS’s Interpretation of Section

1252(a)(1) Because Congress’ Intent is Clear

Even under a Chevron analysis, the INS’s interpre-

tation of sec. 1252(a)(1) must be rejected because

Congress’ intent is clear from the text the statute, the

Immigration and Nationality Act taken as a whole, and

the legislative history of the relevant provisions.

Under Chevron, the courts are to defer to a reason-

able and permissible agency interpretation of a statute

only in the event of uncertainty over the statute’s

meaning. 467 U.S. at 844-45. Where no such uncer-

tainty exists, effect must be given to Congress’ intent

and thus deference is inappropriate. Jd. See also Dole v.

United Steelworkers of America, 110 S. Ct. 929, 938

18

(1990). In ascertaining whether Congress’ intent with

respect to a given question may be discerned, the courts

are to employ the traditional tools of statutory construc-

tion. See Cardoza-Fonseca, 480 U.S. at 446-48 (“[e]m-

ploying the traditional tools of statutory construction, we

have concluded that Congress did not intend the two

standards to be identical.”). See also Chevron, 467 U.S.

at 843 n.9 (referring to the judiciary as the “final

authority on issues of statutory construction”). This

initial inquiry regarding legislative intent entails the

judicial assessment of the specific provision’s text, the

language and design of the statute as a whole, and the

Statute’s legislative history. See, e.g., Sullivan v. Ever-

hart, 110 S. Ct. 960, 964 (1990) (“{i]n ascertaining the

plain meaning of the statute, the court must look to the

particular statutory language at issue, as well as the

language and design of the statute as a whole.”)

(quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281,

291 (1988)); Regents of Univ. of Cal. v. Public Employ-

ment Rel. Bd., 485 U.S. 589, 597-602 (1988) (declining

to defer to the agency interpretation because Congress’

intent could be discerned from an analysis of statutes

and their legislative history); Bethesda Hosp. Ass'n v.

Bowen, 485 U.S. 399, 403 (1988) (declining to defer to

agency interpretation where the plain meaning of the

Statute and the language and design of the statute

indicate Congress’ intent); Japan Whaling Ass'n v.

American Cetacean Soc'y, 478 U.S. 221, 233 (1986)

(noting that the courts will afford deference under

Chevron “unless the legislative history of the enactment

shows with sufficient clarity that the agency construc-

tion is contrary to the will of Congress.”); United States

v. City of Fulton, 475 U.S. 657, 666-67 (1986) (consid-

ering the legislative history of the relevant statute in

order to ascertain Congress’ intent).

19

1. The statutory language

The plain language of sec. 1252(a)(1) and sec. 1252

taken as a whole demonstrate that the INS’s interpreta-

tion is inconsistent with Congress’ intent with respect to

bond conditions.

Section 1252(a)(1) addresses the scope of the Attor-

ney General’s authority with respect to the arrest, cus-

tody and release of persons subjected to deportation

proceedings. It provides the Attorney General with con-

siderable flexibility in determining whether a given

individual will remain in custody, be released under

bond, or released on conditional parole. With respect to

release on bond, sec. 1252(a)(1) permits the inclusion in

such bonds of “such conditions as the Attorney General

may prescribe . . .” The INS reads this authority broadly,

claiming that bond conditions need only be rationally

related to the purposes of the immigration laws. See Pet.

Brief at 14 (asserting that sec. 1252(a)(1) authorizes

those conditions “designed to serve any of the policies of

the Immigration and Nationality Act.”).

The INS’s interpretation is cut from whole cloth. It

ignores the plain meaning of the terms “bond” and

“discretion,” and it fails to consider the bond conditions

provision in the context of sec. 1252 as a whole. _

The plain meaning of the term “bond” as used in

sec. 1252(a)(1) establishes Congress’ intent with re-

spect to the kinds of release conditions which the

Attorney General may impose. Black’s Law Dictionary’s

definition of “bond” in the context of detention or

incarceration refers to its definition of “bail.” “Bail” is

repeatedly defined in terms of ensuring an individual’s

appearance at later proceedings. For example, “bail” is

defined as “[t]o procure release of one charged with an

offense by insuring his future attendance in court and

compelling him to remain within jurisdiction of court.”

Black's Law Dictionary 127-28 (Sth ed. 1979). In differ-

entiating between civil and criminal bail, it states that

“[t}he object of ‘bail’ in civil cases is either directly or

indirectly to secure payment of a debt or performance of

20

other civil duties, while in criminal cases object is to

secure appearance of principal before the court when his

presence is needed.” Jd.

This Court’s case law is consistent with this under-

standing of the term “bond.” Yanish v. Barber, 73 S. Ct.

1105 (Douglas, Circuit Justice 1953), concerned the

scope of the Attorney General’s discretion to impose

bond conditions under 8 U.S.C. sec. 1252(c). Section

1252(c), a provision analogous to sec. 1252(a)(1), con-

cerns the treatment of persons subject to deportation

proceedings after a final order of deportation has been

entered. The bond condition language in the two provi-

sions is identical.®

In Yanish, the subject of deportation proceedings

had been free on bond pending resolution of the pro-

ceedings. The INS requested that he execute a bond

containing new conditions, including several which

related to association with communist organizations or

with persons who associate with such organizations.

When the alien refused to execute the new bond, he was

taken into custody. He filed a petition for habeas corpus,

alleging that the Attorney General had abused his dis-

cretion in seeking to impose the new bond conditions.

The district court rejected the petition, and denied bail

pending appeal. The issue before Justice Douglas was

whether the appeal raised a “substantial question,” in

which case bail pending appeal should be allowed. Jd. at

1106-07. In explaining his conclusion that the questions

raised were substantial, Justice Douglas first noted that

“[t]he function of bail in situations such as the instant

7. Although deportation proceedings are civil in nature, see

Carlson v. Landon, 342 U.S. 524, 533 (1952), the incarceration and

hence the bonding process is more closely analogous to criminal

practice.

8. Both sec. 1252(a){1) and sec. 1252(c) refer to release on

bond “containing such conditions as the Attorney Genetal may

prescribe.” The INS concedes that under sec. 1252(c) “the Attorney

General retains the same authority to detain or to impose conditions

as under subsection (a)(1).” Pet. Brief at p. 16 n.8.

21 -

one is to provide security for the appearance of the

prisoner on the one hand and to protect his right to

appeal, on the other.” Jd. at 1108. He then questioned

how the imposition of conditions related to the alien’s

associational activities could further the purpose of bail.

Id. at 1108. See also In re Milburn, 34 U.S. (9 Pet.) 704,

709 (1835) (Story, J.) (emphasizing that the purpose of

bond in the criminal context is to ensure a party’s

appearance at later proceedings); Reynolds v. United

States, 80 S. Ct. 30, 32 (Douglas, Circuit Justice 1959)

(“[t]he purpose of bail is to insure the defendant’s

appearance and submission to the judgment of the

court.”). Cf. Rubenstein v. Brownell, 206 F.2d 449, 456

(D.C. Cir. 1953) (noting in the context of the Attorney

General’s authority to arrest persons under sec. 1252

that imprisonment on the basis of the appellant’s crim-

inal record or his unpopularity would constitute an

abuse of discretion), affd per curiam by an equally

divided Court, 346 U.S. 929 (1954).

In using the term “bond” in sec. 1252(a)(1), Con-

gress can be presumed to have known that bond condi-

tions in this context refers to conditions intended to

secure appearance at later proceedings. The INS con-

strues sec. 1252(a)(1) to afford the Attorney General the

ability to detain persons whose status has yet to be

ascertained for undetermined lengths of time in order to

further any permissible objective of the immigration

laws. When the plain meaning of “bond” as used in this

context is considered, this interpretation is absurd.

The INS also failed to read t'.e bond condition

provision in context. It is apparent from sec. 1252 taken

as a whole, which is concerned with the procedures to

be followed in the event that an individual is to be the

subject of deportation proceedings, that the conditions

imposed must be related to ensuring the individual's

later appearance. Nothing in sec. 1252’s detailed provi-

sions supports the view that the procedural devices

22

outlined may be used as the Attorney General sees fit to

further any of the myriad purposes of the immigration

laws.

This understanding of “bond” is consistent with the

legislative history of a predecessor bill to the 1950

legislation which contained the present sec. 1252(a)(1).

Both the House and Senate reports on that bill referred

to the Attorney General’s “untrammeled” authority to

impose bond conditions, but went on to list as examples

conditions that were to be applied on an individualized

basis and which only concerned either ensuring appear-

ance at the hearing or the amount of the bond. H.R. Rep.

No. 1192, 81st Cong., 1st Sess. at 6 (1949); S. Rep. No.

2239, 21st Cong., 2d Sess. at 5 (1950) (cited in National

Center for Immigrants’ Rights, Inc., 913 F.2d at 1359).

The INS’s interpretation is also inconsistent with

the plain meaning of the term “discretion” as that term

is used in sec. 1252(a)(1). “Discretion” by definition

when used in this context requires some individualized

consideration of the circumstances surrounding the

person being subjected to deportation proceedings. See

Cardoza-Fonseca, 480 U.S. at 444 (referring to the

Attorney General’s discretion to grant asylum as a con-

gressional assignment of “the task of making these hard

individualized decisions”). See also Black’s Law Dictio-

nary 419 (Sth ed. 1979) (defining discretion as applied

to public officers as the “power to act in an official

Capacity in a manner which appears to be just and

proper under the circumstances”) (emphasis added).?

9. This definition of deference as requiring an individualized

assessment is consistent with the cases relied upon by the INS in

support of its assertion that an agency may use rulemaking to

resolve questions of general applicability even where individualized

determinations are required. Pet. Brief at 38-41. The cases cited by

the INS are distinguishable because they involved questions of

general applicability which were relevant to the requisite individu-

alized determinations. See, e.g., Heckler v. Campbell, 461 U.S. 458,

467 (1983) (permitting resolution of questions concerning the

23

This understanding is consisient with the Court of

Appeals’ construction of the scope of the Attorney Gen-

eral’s discretion under sec. 1252(a)(1). The court dis-

cerned from a thorough review of the case law on the

scope of the discretion at issue “an unmistakable em-

phasis on the situation of each individual as the focus of

the exercise of discretion.” 913 F.2d at 1363-64. The

court stated further that “[t}he significant power which

is placed in the Attorney General must be exercised on

the specific, individual circumstances of the person who

faces the determination of his alienage or deportability

under this statutory section. Jd. Finally, the court

concluded by noting that “[{i]nformed discretion is in-

compatible with a blanket no- work rule.” Jd. at 1374.

See also Carlson v. Landon, 186 F.2d 183, 188-89 (9th

Cir. 1950), affd on other grounds, 342 U.S. 524 (1952)

(requiring an individualized assessment in the exercise

of the Attorney General’s discretion under the Internal

Security Act with respect to release under bond). More-

over, this Court has accepted an analogous argument in

the Social Security disability context. See Sullivan v.

Zebley, 110 S. Ct. 885 (1990) (relying upon Congress’

intent to provide for individualized determinations in

rejecting agency’s efforts to make disability determina-

tions through rulemaking process).

Thus, the challenged regulation is inconsistent with

Congress’ clear intent in a variety of respects. It ignores

the plain meaning of the terms “bond” and “discretion,”

and ignores the context in which sec. 1252(a)(1) affords

discretion to the Attorney General with respect to bond

conditions.

availability of employment in the national economy through rule-

making in the context of individual disability determinations). The

regulation challenged in the present case does not concern ques-

tions of general applicability. Instead, it ignores individual circum-

stances and imposes a blanket prohibition regardless of circum-

stances. The cases cited by the INS do not support such agency

action.

24

2. Section 1252(a)(1)’s role in the Immigration and

Nationality Act as a whole and the legislative history

Section 1252(a)(1) is part of the extensive federal

immigration and naturalization regulatory scheme

which is largely contained in the Immigration and

Nationality Act, 8 U.S.C. sec. 1101 er seq. (“the INA”).

The INS’s interpretation of sec. 1252(a)(1) is inconsis-

tent with the language and structure of the INA, partic-

ularly with the employment-related amendments to the

INA contained in the Immigration Reform and Control

Act of 1986 (“IRCA”), Pub. L. No. 99-603, 100 Stat.

3359.

As the INS conceded in its commentary on the

challenged regulation, persons who violate the no work

condition of a release bond would be incarcerated. See 48

Fed. Reg. 51142 (“[wJhere the ‘no work’ condition is

violated, the appropriate response would be to take the

alien into custody.”) Thus, the INS interprets sec.

1252(a)(1) to permit the punishment of the individual

for violation of a “no work” condition. Moreover, even

absent re-incarceration for violation of a bond condition,

the blanket rule requiring no work conditions is likely to

make obtaining release from detention more difficult.

See National Center for Immigrants’ Rights, Inc. v. INS,

913 F.2d 1350, 1357 n.7 & accompanying text (9th Cir.

1990). This interpretation of sec. 1252(a)(1) is flatly

inconsistent with Congress’ intent with respect to un-

authorized work by aliens.

Both the employment-related provisions and the

legislative history of IRCA demonstrate Congress’ intent

to limit unauthorized employment not through penaliz-

ing the alien worker, but through employer sanctions.

The Court of Appeals described the relevant portions of

IRCA and its underlying policy as follows:

[T)he principal sanctions in IRCA are aimed at

employers. Section 101 of the Act establishes pen-

alties making employment of unauthorized aliens

unlawful. 8 U.S.C. sec. 1324a. The employer is

25

required to keep records of the verification of em-

ployees’ eligibility to work. 8 U.S.C. sec.

1324a(b)(1)(C). Civil and criminal penalties are

provided for violations. 8 U.S.C. sec. 1324a(e), (f).

913 F.2d at 1367.

The Court of Appeals, after carefully summarizing

IRCA’s legislative history with respect to unauthorized

employment, properly concluded that IRCA did not

authorize the Attorney General to promulgate the chal-

lenged regulation. Jd. at 1366-70.

C. Even if the Court Concludes that sec. 1252(a)( 1) is

Ambiguous with Respect to the Attorney Gener-

al’s Authority to Impose a Blanket Condition

Unrelated to Assuring Appearance at the Hearing,

the INS’s Interpretation Should be Rejected as

Impermissible and Unreasonable

Even if the Court concludes that Chevron does apply

to the type of interpretive questions at issue and that sec.

1252(a){1) is ambiguous with respect to the Attorney

General's authority, it should reject the agency’s inter-

pretation as both unreasonable and impermissible.

In assessing the reasonableness of the agency’s

interpretation, the Court is to consider that interpreta-

tion “in light of the language, policies, and legislative

history of the [statute] .. .” United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 131 (1985). Given

that the reasonableness inquiry largely looks to the same

factors as those considered in the first part of the

Chevron analysis, amicus curiae refers to the foregoing

discussion to demonstrate that the INS’s interpretation

is unreasonable. See supra at 17, 18, and 19.

Additionally, the INS’s interpretation of sec.

1252(a)(i) is unreasonable for reasons unrelated to

issues of |egisiative intent. For example, although the

purported justification for the no work authorization is to

preserve employment opportunities for U.S. citizens by

creating a disincentive to those who wish to travel to the

26

United States to obtain employment, see Pet. Brief at 6

(“[b]y placing the burden on these aliens, INS intends to

remove an economic incentive for illegal entry, and also

to remove an incentive to delay deportation proceedings

when an alien is apprehended.”), the empirical data

belies this explanation. As the Court of Appeals noted,

the “no work” condition regulation affects only a small

percentage of those who e to the United States to

seek employment. Over 97% \of those arrested by the

INS take voluntary departure and depart from the

United States without a hearing. 913 F.2d at 1369

(citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1044

(1989)). Moreover, a portion of those remaining are

released on parole rather than bond. Jd. Thus, the

percentage of persons who would be directly affected by

the challenged regulation is quite small. When the

impact of this small percentage on the incentive effect is

considered in conjunction with the questionable consti-

tutionality of the challenged regulation, the regulation

cannot be cast as reasonable. See DeBartolo Corp. v.

Florida Gulf Coast Bldg. and Constr. Trades Council

485 U.S. 568, 574-76 (1988).

Despite the INS’s routine invocation of Chevron, a

proper reading of Chevron and its progeny demonstrates

that Chevron’s deference requirement simply is not

implicated in this case. Deference would be inappropri-

ate and unwarranted here for at least two reasons. First,

interpretive questions regarding the scope of an

agency's authority are better resolved by an entity not

charged with exercising the power at issue. Second, the

circumstances here do not warrant or even favor defer-

ence to the INS’s interpretation of sec. 1252(a)(1).

Moreover, even if Chevron applies, Congress’ intent is

clear from the face of the statute, the INA considered in

its entirety, and the relevant legislative history. As

Chevron notes, “that is the end of the matter,” 467 U.S.

at 842, and the agency interpretation is not relevant.

Finally, even if the Court finds sec. 1252(a)(1) to be

ambiguous with respect to the scope of the agency’s

~ a

27

authority, deference should not be afforded because the

agency interpretation is both impermissible and unrea-

sonable.

Finally, the regulation is tantamount to an outright

denial of employment authorization to all aliens during

the pendency of deportation proceedings. The Immigra-

tion Service’s regulations automatically terminate the

employment authorization of all aliens placed in exclu-

sion or deportation proceedings. See 8 C.F.R.

§ 274(a)(1)(ii). Thus, the petitioner’s assertion that the

no-work bond condition does not eliminate preexisting

rights to work either incident to status or by grant of the

Immigration Service, is dubious at best. See Petition for

Writ of Certiorari, at page 20.

The regulations do permit an application to be filed

pursuant to 8 C.F.R. § 274a.12(c)(13) where the Dis-

trict Director determines employment is appropriate.

The immigration Service has up to 60 days to adjudicate

the request.

Further, 8 C.F.R. § 103.6(a)(2)(ii) establishes sep-

arate Criteria requiring that the alien demonstrate “com-

pelling reasons” for seeking employment.

Under the standards set forth in 8 C_F.R. § 274(e),

the Immigration Service has demonstrated a failure to

comply with its own regulations as to timeliness and the

substance of the adjudications. See, e.g., John Doe I v.

Meese, 690 F. Supp. 1572 (S.D. Tex. 1988) (failure to

comply with 60 day deadline resulting in preliminary

injunction). See also Ramos v. Thornburgh, 732 F.

Supp. 609 (E.D. Tex. 1989)(asylum applicants denied

employment authorization because of INS application of

the regulatory standard).

Lastly, it is clear that the “compelling reasons”

standard is unreasonable as it relates to no legitimate

purpose. The standard acts simply to deny to the alien

‘the means to remain in the United States to litigate the

merits of his or her case. Deportation cases are often

complex with the availability of numerous types of

discretionary relief provided under the Immigration Act.

28

The coercive effect of the INS policy is apparent. It is

plainly unreasonable and not related to any legitimate

interest of the Immigration Service.

CONCLUSION

Amicus American Immigration Lawyers Association

urge that the judgment of the United States Court of

Appeals for the Ninth Circuit be affirmed.

Respectfully submitted,

Lawrence H. Rudnick

Steel, Rubin & Rudnick

936 Public Ledger Bldg.

6th & Chestnut S<reet

Philadelphia, PA 19106

Maureen Callahan

_ Williamette University

College of Law

250 Winter Street, S.E.

Salem, OR 97301

Ignatious Bau

Sara Campos

San Francisco Lawyer’s

Comm. for Urban Affairs

301 Mission Street,

Ste. 400

San Francisco, CA 94105

Ivette Pena

Joshua Floum

Heller, Ehrman, et al.

333 Bush Street

San Francisco, CA 94104

Counsel for Amicus Curiae

29

CERTIFICATE OF SERVICE

I, LAWRENCE H. RUDNICK, Esquire, hereby

certify that a true and correct copy of our BRIEF

AMICUS CURIAE was served upon Kenneth W. Starr,

Solicitor General, Office of the Solicitor General,.Wash-

ington, DC 20530, and Peter Schay, NCIR, Inc., 256 S.

Occidental Blvd., Los Angeles, CA 90057.

Service was by prepaid First Class Mail.

July 12, 1991 ; y

LAWRENCE H. RUDNICK