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HERNANDEZ-CARRERA v. CARLSON

No. 08-3097.

547 F.3d 1237 (2008)

Santos HERNANDEZ-CARRERA; Pablo Santiago Hernandez-Arenado, Petitioners-Appellees, v. Ken CARLSON, Field Office Director, Immigration and Customs Enforcement, Department of Homeland Security; E.J. Gallegos, Warden, USP-Leavenworth, Respondents-Appellants.

United States Court of Appeals, Tenth Circuit.

November 12, 2008.

Attorney(s) appearing for the Case

Thomas H. Dupree, Jr., Deputy Assistant Attorney General (Gregory G. Katsas, Acting Assistant Attorney General; David J. Kline, Director, District Court Section; Christopher J. Walker, Attorney, Appellate Staff; Samuel P. Go, Trial Attorney, with him on the briefs), United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondents-Appellants.

Melissa Harrison, Assistant Public Defender for the District of Kansas (David J. Phillips, Federal Public Defender, with her on the brief), Kansas City, KS, for Petitioners-Appellees.

Before KELLY, McCONNELL and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

This case requires us to determine whether an agency interpretation ordinarily owed deference under the framework established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), is foreclosed by a prior Supreme Court construction of the statute applying the canon of constitutional avoidance. We conclude that under the principles outlined...

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