Last Friday the D.C. Circuit confronted an interesting issue related to "Chevron deference" on which the circuits are split. For a brief summary of the decision, click here. Writing for the D.C. Circuit panel in Friedman v. Sebelius, Judge Douglas H. Ginsburg noted the existence of a split between two circuits over whether courts must “defer to an agency's interpretation of a term drawn from criminal law but used in a statute the agency administers.” No. 11-5028 (D.C. Cir. July 27, 2012).
The Third Circuit has answered the question in the negative. See, e.g., Wong Park v. Att'y Gen., 472 F.3d 66, 70 (3d Cir. 2006) ("[N]either the Attorney General nor the BIA ... is entitled to Chevron deference as to whether a particular federal offense is an aggravated felony [as that term appears in the Immigration and Naturalization Act]" (internal quotation marks and citation omitted)). The Second Circuit, however, has reached the opposite conclusion. See, e.g., James v. Mukasey, 522 F.3d 250, 254 (2d Cir. 2008) ("we defer to the BIA's interpretation of [the INA] in determining the meaning of 'sexual abuse of a minor'" as it appears in the INA but not to its "interpret[ation] of state or federal criminal laws" themselves); Mugalli v. Ashcroft, 258 F.3d 52, 56 (2d Cir. 2001) ("[W]e defer to the BIA's interpretation of [the INA] in determining the meaning of 'sexual abuse of a minor'").
As Judge Ginsburg also noted in Friedman, in 2009 the Supreme Court passed up an opportunity to provide guidane on the issue:
In Nijhawan the Supreme Court, neither deferring nor mentioning the Government's argument for deferring to the BIA's interpretation of the INA, decided the term "fraud or deceit in which the loss to the victim or victims exceeds $10,000" calls for the circumstance-specific approach, 557 U.S. at 36, even though the Court had only recently made clear that, "[c]onsistent with the rule in Chevron ..., the BIA is entitled to deference in interpreting ambiguous provisions of the INA," Negusie v. Holder, 555 U.S. 511, 516, 129 S. Ct. 1159, 173 L. Ed. 2d 20 (2009) (denying Chevron deference where BIA decision was based upon "mistaken legal premise" regarding a prior decision of the Court).
The D.C. Circuit ultimately avoided the Chevron deference question on which the circuits are split, holding instead that the statute at issue unambiguously authorized the agency's actions in Friedman.