Chevron’s Ambiguity Hurdle: Delgado v. Holder and the Proper Interpretation of the Particularly Serious Crime Exception to Deportation Relief

I. INTRODUCTION Immigration policy involves interplay between the interests of society and those of the individual immigrant. Public rhetoric during the 2006 U.S. immigration reform debates illustrates this interplay: Proponents of liberal reform seem to focus on the impact of deportation on individuals and families, while proponents of restrictive reform emphasize the necessity of securing society against immigrants involved in criminal activity, or even terrorism.1 Official policy often reflects these competing interests as well, but unlike public debate, it must attempt to do so with a unified voice. Recognizing the security concerns of society, Congress has established certain deportation grounds as a basis for removal of aliens2 who previously have been admitted to the United States.3 Yet Congress has also provided for a number of special forms of relief from deportation, including asylum and withholding of removal. This relief allows otherwise deportable aliens to avoid removal by showing that upon returning to their home country they may be persecuted because of race, religion, nationality, membership in a particular social group, or political opinion.4 Further illustrating the interplay of interests, Congress has stipulated that this relief is not available to any alien who has been convicted of a "particularly serious crime" and is thus a danger to the community.5 Despite these attempts by Congress to balance the competing interests of the individual and the community in a consistent way, federal courts of appeal are split in their interpretation of what constitutes a particularly serious crime under the withholding of removal statute. In Delgado v. Holder,6 the Ninth Circuit addressed the particularly serious crime exception to asylum and withholding. In so doing, the court misconstrued the asylum provision by holding that the Attorney General, or one acting under his authority, could designate crimes as particularly serious on a case-by-case basis, rather than solely through the rule- making process. Yet this misconstruction is consistent with the only other circuit to have addressed the issue. Regarding withholding, the dissent provided a compelling analysis that the statute, correctly interpreted, requires particularly serious crimes to be aggravated felonies. The dissent's analysis, however, is rooted in a subtle but significant misapplication of the Chevron doctrine. Correctly applying the Chevron doctrine, the majority examined the reasonableness, rather than the correctness, of the executive agency's interpretation of the statute and deferred to the agency's interpretation that particularly serious crimes need not be aggravated felonies under the withholding provision. Delgado illustrates that the proper application of the Chevron doctrine requires an initial inquiry into whether a statute is ambiguous; if followed, this approach may resolve the circuit split and lead to a more consistent application of the deportation relief scheme enacted by Congress. II. FACTS AND PROCEDURAL HISTORY Hernan Ismael Delgado, a native citizen of El Salvador, entered die United States in 1980 on a ninety-day non-immigrant visitor visa.7 Delgado was ten years old at die time.8 According to Delgado, his grandmotiier brought him and his sister to the United States after their mother and step-father had been tortured and killed by government death squads and threats had been made against the remaining family members.9 Delgado overstayed his ninety-day visa; when he was twenty-two he petitioned for asylum, but the petition went unanswered.10 In 2001, the Immigration and Naturalization Service (INS) initiated removal proceedings against Delgado for overstaying his visa.11 Among the various forms of relief available to aliens about to be deported, Delgado sought asylum, withholding of removal, Convention Against Torture (CAT) withholding, and CAT deferral.12 While each of these forms of relief is distinct, they are all based upon the risk of persecution an alien faces if sent to a particular country upon removal. …