Require Agencies To Apply The Rule Of Lenity To All Actions

• Published date: 04 June 2021
• Subject Matter: Government, Public Sector, Immigration, Fiscal & Monetary Policy, General Immigration
• Law Firm: Seyfarth Shaw LLP
• Author: Mr Angelo A. Paparelli

Co-author by David J. Bier

Seyfarth Synopsis: This is the final installment in a series of recommendations to the Biden Administration on immigration reform previously published by the Cato Institute in "Deregulating Legal Immigration: A Blueprint for Agency Action." Read the first, second, third, and fourth installments here. In total, five installments have been published.

President Biden Should Require Immigration Agencies to Apply the Rule of Lenity to All Decisions The President should issue an executive order requiring all federal immigration agencies to interpret ambiguous statutes and regulations with leniency in favor of the applicant or petitioner

Immigration law is commonly referred to as "second only to the Internal Revenue Code in complexity."¹ It is a convoluted morass of vague and poorly defined terms, making life-altering decisions hang on the meaning of unfamiliar and ambiguous terms like "moral turpitude" or subjective analyses about an applicant's "credibility."² In the removal context, courts have dealt with this phenomenon by "construing any lingering ambiguities in deportation statutes in favor of the alien."³ The Supreme Court has stated, "since the stakes are considerable for the individual, we will not assume that Congress means to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used."⁴ This interpretative method is referred to as "strict construction" or "the rule of lenity."⁵

While courts have only applied this rule to statutes governing removal and immigration crimes, the stakes are just as considerable in the adjudication of various immigration benefits -denials of which can themselves trigger removals or prevent travel to and residence in the United States, causing permanent separation of Americans from their spouses, children, and parents and career-ending decisions requiring departure from the United States. Since adverse adjudications of petitions and applications requesting immigration benefits routinely render a denied beneficiary "out of status" and thus removable, the rule of lenity should be interpreted by executive order and extended to other immigration statutes and regulations, which, if enforced against particular noncitizens, would similarly lead to their deportation or "exile."

The president should require all agencies involved in the interpretation or application of immigration statutes and regulations to adopt the rule of lenity for all...