WilmerHale filed an amicus brief in the US Court of Appeals for the Ninth Circuit on behalf of Professors Michael Kagan and Christopher Walker on November 22. The brief addresses the weight that courts should give to agencies' interpretations of statutes following the Supreme Court's landmark decision earlier this year in Loper Bright v. Raimondo, which overturned Chevron deference.

The professors urge the Ninth Circuit to reconsider its decision in Lopez v. Garland, in which the court heavily relied on the Board of Immigration Appeals' interpretation of "crimes involving moral turpitude" in the Immigration and Nationality Act. They argue that the panel's analysis improperly revived Chevron deference under a different name, contrary to Loper Bright.

The brief emphasizes that an agency's interpretation should be just one piece of evidence that a court uses when interpreting a statute and that the agency's views should not be given undue weight, especially when the agency lacks special expertise on the issue presented. The brief warns that misapplying Loper Bright could affect thousands of appeals from agency decisions each year, including within the immigration law context, and it calls for en banc review to ensure a clear and correct approach to Loper Bright within the Ninth Circuit.

The brief is available on SSRN, and Professor Walker has discussed the brief further on the Yale Journal on Regulation’s Notice and Comment blog. The WilmerHale team included Partner Tim Cook and Counsel Scott Greene and Myles McDonagh.