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Holper on the Moral Turpitude Test for Removability of Noncitizens for Criminal Convictions

By Lawrence Solum

Mary Holper (Roger Williams University) has posted The New Moral Turpitude Test: Failing Chevron Step Zero (Brooklyn Law Review , Vol. 76, No. 4, 2011) on SSRN. Here is the abstract:

In the waning days of the Bush administration, Attorney General Michael Mukasey decided In re Silva-Trevino, in which he reversed over a century of immigration law precedent by creating a new moral turpitude test. He abandoned the well-entrenched "categorical approach," the mechanism by which immigration judges decide whether a noncitizen is removable for a criminal conviction, and allowed judges to engage in a factual inquiry of whether an offense involves moral turpitude. The Attorney General made such a broad, sweeping change through a process that allowed no input from affected parties, including the individual whose case became the new precedent. In this article, I argue that courts should refuse deference to Silva-Trevino under "Chevron step zero." Chevron, U.S.A. Inc. v. NRDC introduced a well-known two-step analysis for courts to determine whether an agency?s decision deserved deference: first, courts determine whether Congress used clear language in the statute; second, if Congress was not clear, courts defer to the agency?s reasonable interpretation. The Court later introduced what scholars call "Chevron step zero." In an important step zero decision, the Court decided United States v. Mead Corp., holding that courts should not defer to agency interpretations of law issued through informal procedures because such interpretations do not have the force of law. I argue that courts should not defer to Silva-Trevino under Chevron step zero because the Attorney General did not decide the case using law-like procedures: the decision-making process demonstrated neither transparency nor careful consideration.

Full post as published by Legal Theory Blog on November 05, 2010 (boomark / email).