R-S-C v. Sessions, 869 F.3d 1176

Background

R-S-C, an indigenous Guatemalan woman, was removed twice after arriving without inspection and then returned to the U.S. a third time on July 7, 2014; DHS reinstated her January 13, 2014 removal order under 8 U.S.C. § 1231(a)(5).
After the third arrival she expressed fear of return and was referred to an asylum officer; the asylum officer denied reasonable fear, but an immigration judge vacated that finding and placed her in withholding-only proceedings, denying consideration of asylum.
R-S-C sought asylum (which carries broader benefits) but immigration authorities applied the Attorney General’s regulations that bar asylum applications by aliens with reinstated removal orders and permit only withholding of removal proceedings.
The Board of Immigration Appeals dismissed her asylum appeal; she petitioned the Tenth Circuit challenging the Attorney General’s regulation as inconsistent with 8 U.S.C. § 1158(a)(1) (any alien may apply for asylum).
The court treated (1) R-S-C’s contention that she did not ‘illegally reenter’ as waived (she declined to contest the reinstatement finding) and supported by the administrative record; and (2) the main legal question as whether § 1231(a)(5) bars asylum applications despite § 1158(a)(1).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of § 1231(a)(5) — did R‑S‑C illegally reenter?	R‑S‑C: arrival was an attempt to present for asylum, not illegal reentry.	Government: she signed a form declining to contest the illegal-reentry finding and record lacks evidence she sought out officials before entry.	Held: reinstatement applies; she waived contest and record supports illegal reentry finding.
Statutory conflict — can an alien with a reinstated removal order apply for asylum?	R‑S‑C: § 1158(a)(1) plainly allows “any alien…irrespective of status” to apply for asylum; § 1231(a)(5) ambiguous.	Government: § 1231(a)(5) bars “any relief” for reinstated orders, which reasonably includes asylum.	Held: Chevron step one — text is ambiguous; no clear congressional command.
Chevron deference — is the AG’s withholding-only rule reasonable?	R‑S‑C: rule conflicts with asylum guarantee, international obligations, and lenity; agency treated rule as compelled, so Chevron inapplicable.	Government: withholding-only rule is a reasonable construction, consistent with statutory purpose and mandatory language of § 1231(a)(5).	Held: Chevron step two — AG’s withholding-only regulation is a reasonable interpretation and entitled to deference; petition denied.
International law and lenity arguments	R‑S‑C: ambiguous statute should be construed to conform to Refugee Convention and in favor of the alien.	Government: Convention provisions are precatory or qualified; Congress may prioritize removal enforcement; lenity applies to deportation not denial of discretionary benefits.	Held: Court rejects these arguments; AG’s interpretation need not yield to international law or lenity here.

Key Cases Cited

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (distinguishes asylum and withholding standards and discusses Refugee Convention incorporation)
INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (asylum is discretionary while withholding is mandatory where criteria met)
Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (reinstatement provision applies to all illegal reentrants and generally forecloses discretionary relief)
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (two-step framework for judicial review of agency statutory interpretation)
National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agency construction reasonable at Chevron step two must be accepted)
Negusie v. Holder, 555 U.S. 511 (2009) (agencies do not receive Chevron deference when they treat statutes as unambiguous and compelled)