Courtesy of Judges Boggs and Sutton, the recent immigration appeal Esquivel-Quintana v. Lynch (No. 15-3101) provides an excellent view of a developing doctrine.  Courts grant Chevron deference to reasonable agency interpretations of ambiguous civil statutes, but do not defer to agency interpretations of criminal statutes.  But what about statutes that have both criminal and civil applications?

Judge Boggs, writing for the majority, and Judge Sutton, writing separately, both describe the “emerging” doctrine that Chevron deference should not apply to statutes with both civil and criminal applications, and that the rule of lenity –that ambiguity in a criminal statute must be resolved in the defendant’s favor – should apply instead.  Judge Sutton argues persuasively that granting deference over dual-use criminal statutes would give the Department of Justice “explicit (executive) power to enforce the criminal laws, an implied (legislative) power to fill policy gaps in ambiguous criminal statutes, and an implied (judicial) power to interpret ambiguous criminal laws.”

The majority, however, feel that their hands are tied by a footnote in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 703–04 (1995), which deferred to an agency interpretation of a statute that also carried criminal penalties.  Judge Boggs notes that the Supreme Court has “begun to distance itself” from Babbit, but states that the court is compelled to follow it until that decision is actually overturned.  Judge Sutton views the Babbitt footnote as dicta, would have applied the rule of lenity to favor the defendant.

While this issue of statutory interpretation may not make headlines, Chevron deference often makes the difference between winning (or not) against the government.  This issue might be a sleeper for the Supreme Court.