BIA Deference After Loper Bright

Judicial Review of BIA Statutory Interpretations After Loper Bright

The Supreme Court held that "[t]he Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous" Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). The opinion nonetheless preserved two qualifications. First, courts "may—as they have from the start—seek aid from the interpretations of those responsible for implementing particular statutes," which "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Second, in an agency case "the statute’s meaning may well be that the agency is authorized to exercise a degree of discretion": some statutes "expressly delegate[]" the authority "to give meaning to a particular statutory term," and "[w]hen the best reading of a statute is that it delegates discretionary authority to an agency," the reviewing court’s role becomes "fix[ing] the boundaries of [the] delegated authority" and ensuring that the agency engaged in "reasoned decisionmaking" within them. The immigration decisions issued in the two years since have addressed both qualifications: whether the particular INA provision expressly delegates interpretive authority to the agency, and what weight the Board’s interpretation carries when it does not.

The Sixth Circuit has given the express-delegation qualification concrete content by asking whether the specific provision contains language vesting interpretive authority in the agency. Perez-Perez v. Bondi, 160 F.4th 710 (6th Cir. 2025) held that "following the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo ... we are no longer obligated to defer to the BIA’s interpretation of the INA," and then examined the cancellation statute for delegation language: "Without express language in § 1229b(b)(1)(D) ‘vesting’ the BIA with discretion to determine the meaning of a qualifying ‘child,’ we do not need to afford deference to the BIA’s interpretation." The court concluded, "We see no such vesting language here and therefore find that we are empowered to interpret § 1229b(b)(1)(D) without regard to the BIA’s prior interpretation." The distinction matters because cancellation of removal under 8 U.S.C. § 1229b contains both kinds of language: the ultimate grant of relief is committed to agency discretion — "[t]he Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States" — while the eligibility requirements, such as the requirement that the applicant "establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child," are now for the courts to construe de novo. The Ninth Circuit has described the framework in the same terms: Murillo-Chavez v. Bondi, 128 F.4th 1076 (9th Cir. 2025) explained that the Court "overruled Chevron, instructing us to address agency interpretations of the law independently"; courts may still "look to agency interpretations for guidance," because the agency’s "body of experience and informed judgment" can give them the "power to persuade," but they "need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous."

Where no express delegation exists, the Board’s interpretations carry at most persuasive weight, and the circuits have begun to define when even that persuasive-authority analysis applies. Chavez v. Bondi, 134 F.4th 207 (4th Cir. 2025) observed that "Loper Bright largely unwound that deference, instructing that courts—and not agencies, such as the Board—resolve statutory ambiguities ‘by exercising independent legal judgment,’" and concluded that "any Board guidance serves only as persuasive authority," with "[t]he weight given to a [Board] decision hing[ing] on the thoroughness evident in the [Board’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade." Applying that Skidmore standard, the court nonetheless agreed with the Board that Virginia petit larceny is a crime involving moral turpitude. The Eleventh Circuit has declined to undertake that analysis in every case: Turner v. U.S. Attorney General, 130 F.4th 1254 (11th Cir. 2025) acknowledged that overruling Chevron "did not disturb Skidmore, although it clarified the areas in which Skidmore has tended to serve an interpretive function," but "fail[ed] to see a basis to engage in Skidmore review" where the appeal "does not rest on an agency’s factbound determination about a statutory term," does not "implicate the BIA’s ‘specialized experience,’" and instead "presents a pure, narrow question of law prime for judicial resolution using interpretive tools to resolve ambiguity."

A distinct question is the continuing force of circuit precedent that upheld specific BIA interpretations under Chevron. Sandoval Argueta v. Bondi, 137 F.4th 265 (5th Cir. 2025) noted that the Court "d[id] not call into question prior cases that relied on the Chevron framework" and that the "holdings of those cases that specific agency actions are lawful . . . are still subject to statutory stare decisis despite our change in interpretive methodology." The panel did not need to decide whether its own Chevron-era precedent remained binding, because it held that "under the best reading of § 1227(a)(2)(E)(i), a conviction under § 33.021(c) categorically meets the definition of a ‘crime of child abuse,’ whether or not a perpetrator is convicted for soliciting sex from an actual minor," so that "we may pretermit the questions whether Adeeko remains binding and whether Loper Bright is an intervening change in the law that permits this panel to revisit Adeeko." The Ninth Circuit has limited the prospective effect of such precedent: "although the holdings of our prior cases in which Chevron deference was applied remain precedential until overruled, we are not compelled to use them as analytical building blocks in every case to determine whether the BIA correctly found, in the case before us, that a previously untreated crime is a CIMT," because "in the end we must exercise our ‘independent judgment.’"

Under these decisions, the standard of review turns on three distinct questions. The first is how the provision is characterized: where the INA provision contains no express vesting or discretion-conferring language, the argument for de novo review is straightforward, and the court’s construction will rest on the parties’ own textual submissions rather than on the Board’s reading; where the provision commits a determination to the Attorney General in terms, review is limited to the boundaries of the delegation and the reasonableness of the agency’s exercise of it. The second is whether Skidmore weight is available: a Board interpretation supported by thorough, consistent, and well-reasoned analysis may still persuade a reviewing court, while a question presented as a pure issue of law outside the agency’s specialized experience may, on the Eleventh Circuit’s approach, receive no Skidmore consideration at all. The third is the effect of existing circuit precedent: holdings that sustained particular BIA interpretations under Chevron continue to bind later panels through statutory stare decisis, so the change in interpretive method has its greatest effect on provisions a circuit has never construed, and adverse Chevron-era precedent can generally be displaced only through en banc review or a determination that Loper Bright constitutes an intervening change in the law.