Brand X Developments in the Ninth Circuit and Beyond

Immigration Law Advisor, Vol. 3, No. 9, 2009

7 Pages Posted: 17 Jun 2012 Last revised: 30 Jul 2015

See all articles by Bijal Shah

Bijal Shah

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: September 1, 2009

Abstract

The Ninth Circuit’s application of Brand X (doctrine granting Chevron deference to agencies’ interpretations of “ambiguous” statutes) in the immigration context has been haphazard and outcome-oriented instead of procedural. In two foundational Ninth Circuit immigration cases, the court chose the more sympathetic outcome in each case instead of applying deference faithfully to the letter of the law.

In the first case, Duran Gonzales, the Ninth Circuit rejected its own otherwise controlling decision. The court deferred to the agency’s opposing interpretation instead of applying Ninth Circuit precedent, despite the fact that the agency’s interpretation arose in the Fifth Circuit. In the second case, Mercado-Zazueta, the court refused to accept the agency’s interpretation despite the fact that it arose under Ninth Circuit precedent. In each case, the court made it clear that its decision was based on the substantive interpretation of statute that it found most agreeable, regardless of whether deferring to the agency was the procedurally correct action.

Finally, this article demonstrates that both within the immigration context and outside of it, circuit courts often defer to agency expertise. It maintains, however, that Brand X deference is rarely granted in cases concerning the application of non-specific criminal law in the immigration context.

Keywords: Immigration law, Judicial deference, Ninth Circuit, Criminal law

Suggested Citation

Shah, Bijal, Brand X Developments in the Ninth Circuit and Beyond (September 1, 2009). Immigration Law Advisor, Vol. 3, No. 9, 2009. Available at SSRN: https://ssrn.com/abstract=2085335

Bijal Shah (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Phoenix, AZ
United States

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