A Practical Guide to Challenging USCIS, DHS, ICE, CBP, EOIR, and BIA Decisions After the End of Chevron Deference
By Richard T. Herman, Esq.
Quick Answer
Loper Bright immigration law changed immigration law by eliminating Chevron deference and requiring courts to independently interpret federal statutes rather than automatically deferring to agency interpretations.
For immigration lawyers, this means that agency policies, guidance documents, memoranda, and even longstanding administrative interpretations are more vulnerable to challenge than at any time in the last forty years.
The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo may ultimately become one of the most important immigration decisions of the decade—not because it directly involved immigration law, but because it changes how courts review the actions of agencies such as USCIS, DHS, ICE, CBP, the Department of State, the Department of Labor, EOIR, and the BIA.
For immigration lawyers, the lesson is simple:
Stop asking whether the government’s interpretation is reasonable.
Start asking whether the government’s interpretation is correct.
Key Takeaways
- Chevron deference is dead.
- Courts must independently interpret immigration statutes.
- USCIS policy manuals are not law.
- Agency memoranda are not law.
- BIA decisions are no longer protected by automatic judicial deference.
- Immigration lawyers should challenge agency-created requirements not grounded in statutes or regulations.
- Loper Bright arguments should be raised during RFEs, NOIDs, immigration court proceedings, appeals, and federal litigation.Understanding Loper Bright immigration law is crucial for effective legal practice in immigration challenges.
- The decision affects adjustment of status, detention, asylum, citizenship, waivers, H-1B cases, L-1 cases, EB-1 cases, and removal defense.
What Is Loper Bright?
For forty years, federal courts relied on the doctrine established in Chevron U.S.A. Inc. v. Natural Resources Defense Council.
Under Chevron, when Congress wrote an ambiguous statute, courts often deferred to an agency’s interpretation if it was considered reasonable.
That framework dramatically expanded agency power.
In Loper Bright Enterprises v. Raimondo, the Supreme Court held that the Administrative Procedure Act requires courts to independently determine the meaning of federal statutes.
The Court emphasized that judges—not agencies—must decide legal questions.
The decision rests heavily on the language of the Administrative Procedure Act, 5 U.S.C. § 706.
Why Immigration Lawyers Should Care
Immigration law is one of the most agency-driven areas of American law.
Virtually every day immigration lawyers interact with:
- USCIS
- DHS
- ICE
- CBP
- Department of State
- Department of Labor
- EOIR
- BIA
Many immigration doctrines have evolved through decades of agency interpretation.
Some are grounded firmly in statutory text.
Others are not.
Loper Bright provides attorneys with a powerful tool to challenge interpretations that exceed congressional authorization.
The New Immigration Advocacy Framework
Every immigration lawyer should begin asking six questions in every case.
Step 1: What Does the Statute Actually Say?
Start with the actual text of the law.
Read:
- Immigration and Nationality Act
- Relevant statutory sections
- Legislative history when appropriate
Do not start with the USCIS Policy Manual.
Do not start with agency guidance.
Start with Congress.
Step 2: What Regulation Implements the Statute?
Many disputes arise because agencies gradually move beyond both the statute and the regulations.
Review the governing regulations carefully.
Determine whether the agency interpretation truly flows from regulatory language.
Step 3: What Interpretation Is the Agency Applying?
Ask:
- Is this found in the INA?
- Is this found in the regulations?
- Is this merely a policy manual provision?
- Is this an agency-created adjudicatory framework?
- Is this a BIA-created interpretation?
These questions should become routine.
Step 4: Did Congress Actually Authorize It?
This is the central question after Loper Bright.
Many immigration disputes can be reframed as follows:
Where exactly did Congress authorize the agency to do this?
If the answer is unclear, a Loper Bright argument may exist.
Step 5: Build the Record Early
Do not wait for federal court.
Raise statutory arguments in:
- RFEs
- NOIDs
- motions to reopen
- motions to terminate
- immigration court briefs
- BIA appeals
- AAO appeals
The strongest federal court cases are usually built years before litigation begins.
Step 6: Preserve the Issue for Judicial Review
Many future victories will depend on arguments preserved during administrative proceedings.
Loper Bright is not just a litigation tool.
It is a case-development tool.
How Loper Bright Affects Immigration Detention Cases
Key Question
Can DHS and the BIA expand detention authority beyond what Congress enacted?
Increasingly, federal courts are saying no.
Matter of Yajure-Hurtado and the Bond Hearing Wars
One of the most significant post-Loper Bright immigration battles involves detention.
In Matter of Yajure-Hurtado, the BIA interpreted INA §§ 235 and 236 to deny bond eligibility to many individuals who entered without inspection.
For decades, many such individuals received bond hearings under INA §236(a).
The government abruptly changed course.
The BIA attempted to characterize the statutory language as “clear.”
Federal courts increasingly disagreed.
Lopez-Campos v. Raycraft
In Lopez-Campos v. Raycraft, the Sixth Circuit addressed the government’s expansive detention theory.
The case demonstrates one of the most important practical consequences of Loper Bright:
Courts now independently examine detention statutes rather than reflexively accepting agency interpretations.
For immigration lawyers handling detention matters, this shift is enormous.
Cunah v. Freden and Alvarez v. Warden
Other important detention decisions include:
These cases reflect growing judicial willingness to independently interpret immigration detention statutes rather than defer to agency positions.
How Loper Bright Affects Adjustment of Status Cases
Key Question
Can USCIS impose requirements not found in INA §245?
That question is becoming increasingly important.
Recent developments surrounding discretionary adjudications have heightened concerns regarding agency authority and the scope of discretion.
Immigration lawyers should carefully evaluate whether new requirements are grounded in:
- statutory text;
- regulations;
- valid rulemaking authority.
Related HLG Resources:
How Loper Bright Affects EB-1 Extraordinary Ability Cases
Key Question
Can USCIS create eligibility requirements beyond statutes and regulations?
The most important current example may be Mukherjee.
Mukherjee v. Miller
In Mukherjee v. Miller, a federal court rejected USCIS’s use of the “final merits determination” framework.
The decision called into question an adjudicatory structure that many practitioners have challenged for years.
The court’s reasoning aligns closely with Loper Bright’s insistence that agencies cannot create legal standards beyond those authorized by law.
Attorneys handling extraordinary ability cases should also revisit:
How Loper Bright May Affect Asylum Cases
Key Question
Can agencies narrow asylum protections beyond what Congress enacted?
Potentially yes.
Many modern asylum doctrines were developed through agency adjudications.
Important authorities include:
Future litigation may increasingly focus on whether agency-created limitations are supported by the INA itself.
How Loper Bright May Affect Criminal Immigration Cases
Key Question
Can agency interpretations expand removability beyond what Congress authorized?
This question may become increasingly important in cases involving:
- Crimes Involving Moral Turpitude
- Aggravated Felonies
- Controlled Substance Offenses
- False Claims to U.S. Citizenship
- Unlawful Voting
Top 10 Ways Immigration Lawyers Should Use Loper Bright
- Challenge USCIS-created eligibility requirements.
- Challenge unsupported detention policies.
- Challenge restrictive BIA interpretations.
- Challenge agency-created evidentiary burdens.
- Revisit unfavorable precedent.
- Preserve statutory arguments earlier.
- Strengthen RFE responses.
- Strengthen NOID responses.
- Improve federal court litigation.
- Re-center immigration advocacy around congressional intent.
Richard Herman’s Analysis
The greatest impact of Loper Bright may not occur in federal court.
It may occur in conference rooms, consultations, RFE responses, motions, appeals, and immigration court filings across America.
For decades, many lawyers instinctively accepted agency interpretations as the starting point.
Loper Bright reminds us that immigration agencies do not own the Immigration and Nationality Act.
Congress wrote the law.
Courts interpret the law.
Agencies must operate within those boundaries.
Immigration lawyers who embrace that reality will be better positioned to challenge government overreach, preserve important legal issues, and achieve stronger outcomes for their clients.
Loper Bright is more than a Supreme Court case.
It is a roadmap for a new era of immigration advocacy.
Additional Resources
- Loper Bright Enterprises v. Raimondo
- Administrative Procedure Act – 5 U.S.C. §706
- Immigration and Nationality Act
- USCIS Policy Manual
- EOIR Precedent Decisions
Frequently Asked Questions About Loper Bright and Immigration Law
Does Loper Bright Apply to Immigration Cases?
Yes. Although Loper Bright was not an immigration case, it applies broadly to federal administrative agencies, including USCIS, DHS, ICE, CBP, EOIR, the BIA, the Department of Labor, and the Department of State.
The decision requires courts to independently interpret federal statutes rather than automatically defer to agency interpretations.
What Did Loper Bright Change?
Loper Bright overruled Chevron deference.
For forty years, courts often deferred to agency interpretations of ambiguous statutes.
Now courts must independently determine the best interpretation of the law.
Does Loper Bright Mean USCIS Can No Longer Interpret Immigration Laws?
No.
USCIS can still interpret immigration laws and issue guidance.
However, courts are no longer required to accept those interpretations simply because they are reasonable.
USCIS must demonstrate that its interpretation is consistent with the statute enacted by Congress.
Does Loper Bright Help Immigrants?
Potentially.
Loper Bright creates new opportunities to challenge restrictive agency interpretations that may exceed statutory authority.
Whether it helps a particular immigrant depends on the facts, legal issues, and applicable statutes.
Does Loper Bright Apply to Removal Proceedings?
Yes.
Immigration Judges and the BIA continue to interpret immigration statutes, but federal courts reviewing those decisions now have greater freedom to independently analyze the law.
This may affect removability determinations, detention cases, waiver eligibility, criminal immigration issues, and asylum claims.
Related HLG Resource:
Does Loper Bright Affect Immigration Detention Cases?
Yes.
Some of the earliest immigration decisions applying Loper Bright involve detention and bond eligibility.
Cases such as:
illustrate how courts are independently interpreting detention statutes rather than simply accepting agency positions.
Related HLG Resources:
Does Loper Bright Affect Adjustment of Status Cases?
Potentially yes.
Immigration lawyers may increasingly challenge USCIS policies that impose requirements not clearly found in INA §245 or related regulations.
Related HLG Resources:
Can Loper Bright Be Used in RFE Responses?
Absolutely.
One of the biggest misconceptions is that Loper Bright only matters in federal court.
In reality, attorneys should consider raising statutory interpretation arguments during:
- RFEs;
- NOIDs;
- motions;
- appeals;
- immigration court proceedings.
Building the record early is often critical.
Can Loper Bright Be Used in NOID Responses?
Yes.
If USCIS relies on an interpretation that appears unsupported by statutory or regulatory text, attorneys should consider preserving a Loper Bright argument in the response.
Does Loper Bright Affect EB-1 Extraordinary Ability Cases?
Yes.
The decision in Mukherjee v. Miller suggests that courts may scrutinize agency-created adjudicatory frameworks more closely.
Related HLG Resource:
Does Loper Bright Affect H-1B Cases?
Potentially.
Future litigation may examine whether restrictive interpretations of “specialty occupation” or other H-1B requirements are truly supported by statutory language.
Related HLG Resource:
Does Loper Bright Affect L-1 Visa Cases?
Potentially.
Questions involving “specialized knowledge” and other agency-created interpretations may become future litigation targets.
Related HLG Resource:
Does Loper Bright Affect Asylum Cases?
Potentially yes.
Future litigation may challenge agency-created limitations involving:
- Particular Social Groups;
- Nexus;
- Internal Relocation;
- Particularly Serious Crimes.
Related HLG Resource:
Does Loper Bright Overturn Prior Immigration Decisions?
No.
The Supreme Court specifically stated that prior decisions relying on Chevron are not automatically invalidated.
However, future cases may challenge or distinguish older precedents.
Does Loper Bright Apply to Naturalization Cases?
Yes.
Questions involving statutory interpretation under the naturalization provisions of the INA may be affected.
Related HLG Resource:
What Is the Most Important Lesson for Immigration Lawyers?
Start with the statute.
Not the Policy Manual.
Not the agency memo.
Not the RFE.
Not the BIA decision.
The statute.
Ask:
Did Congress actually authorize what the government is doing?
That question should become part of every immigration case analysis.
Need Help Challenging USCIS, ICE, DHS, or the Immigration Courts?
Immigration law is entering a new era.
The Supreme Court’s decision in Loper Bright is reshaping how courts review agency action, how immigration lawyers frame arguments, and how statutory interpretation disputes may be resolved.
Whether you are:
- facing removal proceedings;
- detained by ICE;
- responding to an RFE or NOID;
- challenging a visa denial;
- pursuing adjustment of status;
- applying for asylum;
- seeking naturalization;
- appealing an adverse immigration decision;
- pursuing federal court litigation;
- seeking release through habeas corpus;
the way your case is framed can matter enormously.
At Herman Legal Group, we closely monitor developments involving:
- Loper Bright litigation;
- immigration detention;
- bond hearings;
- adjustment of status;
- discretionary denials;
- asylum law;
- federal court immigration litigation;
- USCIS policy changes;
- BIA precedent decisions;
- constitutional and statutory challenges to agency action.
For more than 30 years, Richard Herman and the attorneys at Herman Legal Group have helped immigrants, families, students, professionals, employers, and lawful permanent residents navigate complex immigration issues throughout the United States.
To discuss your situation with Richard Herman or an experienced Herman Legal Group attorney, call 1-800-808-4013 or schedule a consultation online.
The post-Chevron era may create new opportunities to challenge government decisions. Understanding those opportunities begins with understanding the law—and developing a strategy tailored to your specific circumstances.
Core HLG Links for the Loper Bright Article
Detention, Bond, Habeas, ICE
- 5 Steps for ICE Detention in Ohio: How to File Habeas
- Immigration Bond in Ohio: What to Do in the First 72 Hours After an ICE Arrest
- The Ultimate Guide to ICE Detention in Youngstown, Ohio
- Bond After Hurtado and Maldonado Bautista: A Complete 2026 Guide for ICE Detainees in Ohio
- Why Cleveland IJs Are Still Denying Bond After Bautista
- The Colossal Impact of the Bautista ICE Detention Ruling 2026
- Implications of Vacatur of Yajure Hurtado
- 2025 BIA Bond Rulings & No-Bond Immigration Detention
Adjustment of Status / USCIS Discretion
Employment Immigration / EB / H-1B / L-1
- Employment Based Immigration
- EB-1 Petition: Extraordinary Ability Approved
- EB-1 Extraordinary Ability Status for Nigerian Diplomat
- EB-3 Green Card Lawyer: Costs & Insights
- Who Handles Work Visa Applications?
- OPT Expiring in 4 Months?
- Top 10 Questions F-1 Students Ask Immigration Lawyers
Asylum / Executive Overreach
Naturalization / Citizenship
- Citizenship and Naturalization Lawyer
- Best Attorneys for Naturalization Cases With Criminal History Complications
General HLG Authority / CTA
- Immigration Services
- About Herman Legal Group
- Meet Immigration Lawyer Richard Herman
- Experienced Immigration Attorneys
- Book Consultation
- Contact Us
Loper Bright Immigration Law Resource & Case Directory
Supreme Court Foundations
Loper Bright Enterprises v. Raimondo
The Supreme Court decision that overruled Chevron deference and restored independent judicial review of agency interpretations.
Administrative Procedure Act (APA)
The statutory foundation relied upon by the Supreme Court in Loper Bright.
Immigration and Nationality Act (INA)
The primary statutory framework governing immigration law.
Immigration Detention & Bond Litigation
These are among the most important immigration cases applying Loper Bright principles.
Matter of Yajure-Hurtado, 29 I&N Dec. 216 (BIA 2025)
The BIA’s controversial decision concluding that many individuals who entered without inspection are subject to mandatory detention.
Related HLG Articles:
- https://www.lawfirm4immigrants.com/bautista-ice-detention-ruling-2026-yajure-hurtado-vacated/
- https://www.lawfirm4immigrants.com/maldonado-bautista-bond-hearings-yajure-hurtado-vacated/
- https://www.lawfirm4immigrants.com/indefinite-detention-2025-bia-bond-rulings-and-no-bond-immigration-detention/
Lopez-Campos v. Raycraft (6th Cir. 2026)
Major Sixth Circuit decision rejecting the government’s detention theory and affirming habeas relief.
Official Opinion:
Case Resource:
Related HLG Articles:
- https://www.lawfirm4immigrants.com/ice-detention-in-ohio-how-to-file-habeas/
- https://www.lawfirm4immigrants.com/immigration-bond-in-ohio-what-to-do-in-the-first-72-hours-after-an-ice-arrest/
Alvarez v. Warden, Federal Detention Center Miami (11th Cir. 2026)
Important appellate decision rejecting broad no-bond detention theories.
Official Opinion:
Related HLG Articles:
- https://www.lawfirm4immigrants.com/10-steps-to-navigate-ice-detention-youngstown-ice-detention-lawyer/
- https://www.lawfirm4immigrants.com/why-cleveland-ijs-are-still-denying-bond-after-bautista-feb-18-2026/
Extraordinary Ability, EB-1 & Agency Overreach
Mukherjee v. Miller
One of the earliest immigration decisions invoking Loper Bright to reject an agency-created adjudicatory framework.
Analysis:
Kazarian v. USCIS
The Ninth Circuit case from which USCIS developed the controversial “final merits determination” framework.
Official Opinion:
Related HLG Articles:
- https://www.lawfirm4immigrants.com/extraordinary-ability-status-for-nigerian-client/
- https://www.lawfirm4immigrants.com/eb-1-extraordinary-ability-status-for-nigerian-diplomat/
Asylum & Judicial Review
Matter of M-E-V-G-
Particular Social Group precedent.
Matter of W-G-R-
Particular Social Group precedent.
Matter of A-B-
Asylum and domestic violence precedent.
Matter of L-E-A-
Family-based particular social group precedent.
Related HLG Article:
Adjustment of Status & USCIS Discretion
USCIS Policy Manual
Adjustment of Status Statutory Authority
INA §245
Related HLG Articles:
- https://www.lawfirm4immigrants.com/practice-area/immigration/family-based/adjustment-status-uscis/
- https://www.lawfirm4immigrants.com/what-happens-if-your-adjustment-of-status-is-denied-the-real-risks-facing-green-card-applicants-under-the-new-uscis-i-485-memo/
Immigration Court, Appeals & Removal Defense
EOIR Precedent Decisions
Related HLG Resources:
- https://www.lawfirm4immigrants.com/
- https://www.lawfirm4immigrants.com/legal-assistance-for-deportation-defense/
- https://www.lawfirm4immigrants.com/deportation-defense-lawyers-cleveland-oh/
Citizenship & Naturalization
Related HLG Resources:
- https://www.lawfirm4immigrants.com/practice-area/immigration/naturalization-citizenship/
- https://www.lawfirm4immigrants.com/best-attorneys-naturalization-criminal-history-complications/
About Richard Herman & Herman Legal Group
- https://www.lawfirm4immigrants.com/attorneys/richard-herman/
- https://www.lawfirm4immigrants.com/about-us/
- https://www.lawfirm4immigrants.com/attorneys/
- https://www.lawfirm4immigrants.com/book-consultation/
- https://www.lawfirm4immigrants.com/contact/
