Understanding Immigration Statutes and Regulations: How to Establish the “Intent of the Legislature”

It is advantageous sometimes to make the case that a statute (or a regulation) is ambiguous. Ambiguity exists when a statute is capable of being understood by reasonably well-informed persons in two or more different senses. The immigration court, or the BIA, or the federal court has the job of clarifying the statute based on available, relevant information and evidence. In some cases, courts can quickly resolve ambiguity issues. Other times, a lot of effort is required to decide the issue, and a lot of space in a written ruling is required to explain the decision.

Adjudicatory bodies, from BALCA, to the immigration courts, to the BIA, to the Federal district courts and appeals courts (ideally) resolve interpretation issues the same way they (should) resolve any other issue, by applying the relevant facts to a criterion of judgment.

To interpret statutes, “intent of the legislature” is by far the most common such criterion. Put differently, the statutes are to be understood as the legislature intended for them to be understood. Considering this, it is important to recognize how adjudicatory bodies find legislative intent. Adjudicatory bodies use many routes to discover a legislature’s intention.

The following list provides some routes adjudicatory bodies reach legislative intent:

  • adjudicatory bodies read the statute’s words and view them as the most reliable source of legislative intent, particularly when the words are “unambiguous”;
  • adjudicatory bodies might consider the title of a statute to determine legislative intent;
  • adjudicatory bodies might discover legislative intent through the omission of language;
  • adjudicatory bodies might invoke “concepts of reasonableness” along with a statute’s language to determine legislative intent;
  • adjudicatory bodies might seek evidence of legislative intent in the “equity of the statute” and, when necessary, disregard statute’s language to follow legislative intention;
  • adjudicatory bodies might consider the history of the subject matter involved and the purpose to be accomplished to determine legislative intent;
  • adjudicatory bodies might rely on extrinsic evidence from a statute or regulation’s legislative history or sequential drafts of the statute to determine legislative intent; or
  • adjudicatory bodies might examine a subsequent amendment to the statute to determine legislative intent.

All of these routes to determine legislative intent may prove very helpful for an adjudicatory body.