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100 N.Y.U. L. Rev. Online 1 (2025)

handle is hein.journals/nyulro100 and id is 1 raw text is: STRICT CONSTRUCTION OF DEPORTATION STATUTES AFTER LOPER BRIGHT NANCY MORAWETZ* The Supreme Court's decision in Loper Bright Enterprises v. Raimondo calls on courts to apply a broad range of rules of statutory construction instead of engaging in a deferential inquiry about whether an agency's views are reasonable. Courts of appeals face the question how to apply their new interpretative responsibilities in the absence of Chevron deference. This Essay argues that courts of appeals must now apply the long- standing rule ofstrict construction ofdeportation statutes, also known as the immigration rule oflenity, which provides that ambiguities in deportation statutes be resolved to limit the sanction of deportation. This Essay shows that the Court developed the rule of strict construction of deportation statutes as a substantive check against the harsh consequences of deportation statutes. Itfurther shows that the Court treated it as a strong substantive rule that applied to ambiguous statutes, even in situations where the agency's position found support in its contemporaneous interpretation ofthe statute. By 1966, the Solicitor General as well as majority and dissenting Justices treated the rule as settled, leaving only the question whether a particular statutory provision contained an ambiguity sufficient to trigger the rule in the case before the Court. This established rule of strict construction is supported by the same justifications as the criminal rule of lenity and is further supported by unique aspects of deportation statutes, which typically have no statute of limitations and may apply retroactively. While much remains to be seen about how courts will apply their interpretive powers in the wake of Loper Bright the rule ofstrict construction of deportation statutes has the pedigree of a strong substantive rule that ought to be considered fully in determining the scope of deportation laws. INTRODUCTION ..............................................................................................2 I. DEVELOPMENT OF THE RULE OF STRICT CONSTRUCTION OF DEPORTATION STATUTES ...................................................................6 II. THE CASE FOR STRICT CONSTRUCTION OF IMMIGRATION S T A T U T E S .........................................................................................14 A. Strict Construction and the Severity of Deportation ............ 14 B. Strict Construction and Separation of Powers..........................16 C. Strict Construction, Fair Warning, and Retroactivity ..............18 CONCLUSION ...............................................................................................21 We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment of exile .... It is the forfeiture for misconduct of a residence in this country. Such a * Professor of Clinical Law, New York University School of Law. The author thanks Adam Cox, Jill Family, Amanda Frost, Lucas Guttentag, Daniel Harawa, Aidan Langston, Manuel Vargas, Christopher Walker, and Jonathan Weinberg for their thoughtful comments. The author also gratefully acknowledges the discussion with colleagues on this subject at the New York University School of Law Summer Workshop and the Immigration Law Professors Workshop.

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