In October, the U.S. Court of Appeals for the Tenth and Eleventh Circuits grappled with applying Loper to immigration law and OIRA offered agencies new guidance on when they can skip notice and comment procedures.

Tenth and Eleventh Circuit Apply Loper Bright to Immigration Law

The Tenth Circuit Applies Loper Bright to Decide When a “Child” is a Child

AFP Foundation’s Ryan Mulvey writes on Rangel-Fuentes v. Bondi.

The Rangel-Fuentes decision reflects many of the trends developing in the lower courts in the wake of Loper Bright.  Without Chevron deference, courts must now interpret statutes independently.  Statutory text—as read through the lenses of the canons of interpretation—will be the most important focus of that effort.  Yet more than anything, Rangel-Fuentes shows how courts must carefully examine claimed delegations of regulatory discretion, ensuring they are grounded in express statutory text rather than mere implication.  

Here, the BIA tried to sidestep Loper Bright by claiming Congress gave it authority to “fill out” “gaps” in the INA.  The Tenth Circuit rejected that interpretation because Congress had not expressly delegated such power to BIA.  And general “housekeeping” statutes provide no alternative basis for shielding the agency’s position from meaningful judicial review.  As courts across the country grapple with similarly contested statutes and delegations, the lessons of Rangel-Fuentes case will likely resonate far beyond immigration law.

Eleventh Circuit Immigration Decision Joins Debate Over Stare Decisis After Loper Bright

AFP Foundation’s Michael Pepson writes on Bastias v. U.S. Attorney General:

In Bastias, much ink was spilled on this thorny and important question. In 2022, the Eleventh Circuit denied Bastias’s petition for review of a Board of Immigration decision that Bastias was deportable based on a 2018 Eleventh Circuit decision, Pierre v. U.S. Attorney General, deferring to the BIA’s interpretation of the Immigration and Nationality Act under Chevron. Bastias sought cert in the U.S. Supreme Court, which granted the petition, vacated that ruling, and remanded for further consideration in light of Loper Bright. The Eleventh Circuit has now once again denied Bastias’s petition. All three judges on the panel wrote separately, concurring in the judgement to explain their reasoning.

OIRA Urges Agencies to Invoke APA Good-Cause Exception for Unlawful Rules After Loper Bright

AFP Foundation’s James Valvo writes on OIRA’s October 21, 2025 memo on “Streamlining the Review of Deregulatory Actions:”

Loper Bright’s corrective to the judiciary’s all-too-common deference to regulatory agencies provides a window through which the Trump Administration can undo decades of agency overreach.  But they must be methodical and follow deregulatory procedures.  The good-cause exception is an alluring shortcut that agencies should use only in the rarest of circumstances, not as a get-out-of-process-free card. Among the guidance OIRA recently provided to agencies are examples of times when they may invoke the Administrative Procedure Act’s (“APA”) good-cause exception to notice-and-comment procedures.

…

As I argued last year, “I am leery of an attempt to invoke an APA good-cause exemption or using interim final rules to expedite deregulation because it risks jeopardizing the entire project. A blanket or cut-and-paste invocation of good cause to avoid notice and comment is too thin a reed to support such a large project when the inevitable barrage of litigation ensues.”

Quick Hits

• Senator Schmitt Leads Yale Notice & Comment Symposium
  The Yale Notice & Comment blog hosted a symposium on the U.S. Senate’s Post-Chevron Working Group Report. Senator Eric Schmitt, the driving force behind the working group, has the lead essay in the symposium summarizing the initiative and its importance.
  🔗 Read the article

• Liberty University School of Law Hosts Loper Symposium

  Academics and practitioners gathered at Liberty University School of Law to assess how Loper Bright is reshaping administrative-law teaching and future lawyers’ training.
  🔗 Read the article

  
  

• One year later: A world without ‘Chevron deference’

  
  

  American Legislative Exchange Council’s Nino Marchese writes in The Hill:

  ”This year, more than 13 states have introduced aligned anti-deference bills, five of which — Kentucky, Louisiana, Missouri, Oklahoma, and Texas — prevailed.”

  🔗 Read the article