Review

1
Review

• Statutory Interpretation Material

2
Source Materials

• AN INTRODUCTION TO STATUTORY INTERPRETATION AND
  THE LEGISLATIVE PROCESS (1997)
• IMMIGRATION AND NATIONALITY LAW CASES AND
  MATERIALS (3d ed. 2000) and selected portions
  from the 2005 Supplement
• You will also begin receiving selected sections
  from the Statutory Supplement to the casebook.
• Immigration and Nationality Act, as amended
  (Statute)
• Title 8 of the Code of Federal Regulations (8
  C.F.R.) (regulations governing DHS and DOJ)
• Title 22 of the Code of Federal Regulations
  40-46 (regulations governing the Consular
  officers of the Dept. of State)

3
Source Materials, contd

• Department of Homeland Security (DHS) policy
  manual - Operation Instructions (O.I.)
• Department of State (DOS) policy manual - Volume
  9 of the Foreign Affairs Manual (F.A.M.)

4
The Cases

• Phinpathya
• The ordinary and plain language of the statute
  will be followed even if the government agency
  charged with its interpretation has previously
  applied it in a contrary manner.
• Part of the reason for a plain rules is the
  notion that respect for the separation of powers
  is very important
• The legislative body is best suited to statutory
  drafting the court
• Responsibility for correcting error is in hands
  of legislative branch
• Gonzalez
• Unless the language is unambiguous, a statute
  will not be interpreted as divesting the courts
  of jurisdiction to review agency action.

5
Cases, contd.

• Chevron
• Particularly in cases involving governmental
  agency action the court will look to whether
  Congress has spoken directly on the question?
• If not, the reviewing court may not impose its
  own construction.
• It must ask whether the agency interpretation is
  based on a permissible construction of the
  statute
• Landgraf
• Of paramount concern is the notion that laws are
  designed to create a sense of order and
  understanding of the rules to be applied in a
  given situation
• Therefore statutes will not be applied
  retroactively unless the statute clearly allows
  such application.

6

• St. Cyr (Application of Landgraf)
• Retroactivity of statutes as applied to
  immigration
• Congress may enact statutes which are retroactive
  but not in matters regarding criminal law
• This statute did not involve a criminal statute,
  but attached an immigration consequence to a
  criminal conviction.
• Retroactivity will only be applied where it is
  absolutely clear on the face of the statute.
• Mead (refinement of Chevron)
• Chevron deference will only extend to agency
  action that amounts to formalized rulemaking or
  adjudication.