Chevron’s Flexible Agency Expertise Model: Applying the Chevron Doctrine to the BIA’s Interpretation of the INA’s Criminal Law-Based Aggravated Felony Provision

Abstract

For nearly twenty-five years, courts have looked to the Supreme Court’s ruling in Chevron when reviewing a challenge to an agency’s interpretation of statutory language and determining whether deference is appropriate. Despite Chevron’s longstanding role as one of administrative law’s most important legal doctrines, no specification exists as to whether judicial deference is required when an agency interprets language outside the scope of its expertise. As a result, the Second and Third Circuits have split on the issue of whether the Bureau of Immigration Appeals (BIA) interpretation of the term 'aggravated felony', a phrase drawn from criminal law, deserves a traditional Chevron analysis.This Note addresses the conflict and proposes a model of Chevron’s framework that permits courts to remain flexible when considering an agency’s non-traditional expertise, an outcome contemplated by Chevron’s theoretical framework and the Court’s ruling in Chevron itself. Ultimately, this Note resolves the split in favor of the application of Chevron deference to the BIA’s interpretation of language drawn from criminal law, despite the agency’s traditional expertise in immigration law only.