Farbenblum, Bassina --- "Executive Deference in U.S. Refugee Law: Internationalist Paths through and beyond Chevron" [2011] UNSWLRS 15

Last Updated: 17 February 2011

Executive Deference in U.S. Refugee Law: Internationalist Paths through and beyond Chevron

Bassina Farbenblum, University of New South Wales

This paper is available for download at http://law.bepress.com/unswwps/flrps11/art15/

Citation

This article was published in the Duke Law Journal (2011) Vol. 60 (5) 1059-1122.

Abstract

When Congress amended U.S. immigration law via the Refugee Act of 1980, it did so with the explicit purpose of bringing U.S. asylum law into conformity with the nation’s international refugee treaty obligations. Nevertheless, U.S. courts interpreting domestic asylum provisions routinely discount international legal norms, labouring under the mistaken perception that the Chevron doctrine requires deference to the executive agency’s interpretation of asylum law regardless of its compatibility with international law. As a result, domestic asylum law has become jurisprudentially unmoored from international refugee law to the serious detriment of asylum seekers.

This Article argues that neither Chevron nor the policies underlying it compel the lockstep deference that courts afford the Board of Immigration Appeals’ interpretation of U.S. asylum law. The Article charts two alternate paths by which courts may reject agency statutory interpretations that are inconsistent with international refugee law: a route through Chevron that navigates within existing Supreme Court jurisprudence, and a route beyond Chevron based on the limited applicability of this administrative law doctrine to the asylum-adjudication context. Addressing further impediments to the reconciliation of domestic and international law, the Article demonstrates that courts are indeed capable of applying a coherent interpretive methodology to determine the content of refugee treaty obligations, particularly if engaged by government lawyers committed to reestablishing the international legality of U.S. practice.

In seeking to remove a fundamental administrative law obstacle to the implementation of international refugee law, the Article lends impetus to broader scholarly efforts to align U.S. law with this nation’s international human rights obligations. It also provides a framework that enables courts, immigration attorneys, and government policymakers to situate U.S. asylum law in the more rights-protective context that Congress intended.