Chevron Deference or the Rule of Lenity? Dual-Use Statutes and Judge Sutton's Lonely Lament

Abstract

A dual-use statute is a provision that has both civil and criminal implications. With the expansion of the criminal grounds of removability in the Immigration and Nationality Act, immigration law now contains several such provisions. But the question then arises, if a dual-use provision is found to be ambiguous, how should that ambiguity be resolved? Should traditional deference principles apply to the agency's reasonable interpretation of the ambiguous language? Or, given the potential for collateral criminal consequences, should the rule of lenity apply and resolve the ambiguity in favor of the alien?

Using the Sixth Circuit's recent decision in Esquivel-Quintana v. Lynch as a lens, this article examines whether Chevron Deference or the Rule of Lenity should apply when a dual-use statute is found to be ambiguous. Its conclusion is that deference principles should apply and, so long as the agency can reasonably resolve the ambiguity, the rule of lenity should have no role to play. This conclusion is based on several considerations. First, the Supreme Court has never declined to extend some form of deference to dual-use statutes in favor of applying the rule of lenity, and so this article's interpretation is the more faithful application of existing precedent. Second, applying deference prior to lenity comports with the traditional conception of the rule of lenity, which is applied only as a rule of absolute last resort. It thus makes sense to apply deference to attempt a reasonable resolution of statutory ambiguity, and to rely on lenity only where a "grievous" ambiguity remains. Finally, application of lenity is a solution in search of a problem -- whereas the Board has to address dual-use provisions in thousands of cases each year, the criminal provisions are raised in only a handful of proceedings, meaning that applying lenity to the exclusion of deference would be a disproportionate encroachment in an area of law where the agency would otherwise receive broad latitude on judicial review.

Keywords: Board of Immigration Appeals, Chevron Deference, Criminal Law, Dual-Use Statutes, Immigration, Removability, Rule of Lenity

JEL Classification: K00, K19, K23, K39, K40