Rony Perez-Guzman v. Loretta E. Lynch
2016 U.S. App. LEXIS 16109
| 9th Cir. | 2016Background
- Perez, a Guatemalan national, was removed after an expedited removal in 2011, reentered in 2012, and DHS reinstated his prior removal order under 8 U.S.C. § 1231(a)(5).
- After expressing fear of return, an asylum officer found Perez had a reasonable fear of torture and referred him to an IJ for withholding of removal and CAT protection; the IJ declined to consider asylum because of the reinstated order.
- The IJ denied withholding and CAT relief on the merits; the BIA affirmed and explicitly did not reach the asylum claim because 8 C.F.R. § 1208.31(e) bars asylum applications by aliens subject to reinstatement.
- The Ninth Circuit agreed remand was required for withholding and CAT claims in light of intervening precedent (Henriquez-Rivas and Madrigal) but addressed whether § 1231(a)(5) precludes asylum applications under § 1158.
- The court found the statutes ambiguous as to which provision controls, deferred to the Attorney General’s regulation under Chevron step two, and held § 1208.31(e) reasonably interprets the INA to bar asylum applications by aliens subject to reinstated removal orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1231(a)(5) (reinstatement bar) prevents aliens subject to reinstated removal orders from applying for asylum under § 1158 | Perez: § 1158(a)(1) unambiguously allows “any alien” to apply for asylum irrespective of status | Government: § 1231(a)(5) unambiguously bars “any relief under this chapter,” which includes asylum | Court: Statutes ambiguous at Chevron step one; at step two, defer to 8 C.F.R. § 1208.31(e) as a reasonable interpretation — asylum barred for aliens under reinstated orders |
| Whether exhaustion or timeliness bars judicial review of Perez’s challenge to the regulation | Perez: exhaustion would be futile; his challenge to regulation’s substance is timely | Government: initially argued exhaustion, and raised timeliness of procedural challenges to the regulation | Court: exhaustion not required (futility); substantive challenge timely (brought within 6 years); procedural challenge to rulemaking time-barred |
| Remedy on withholding of removal and CAT claims | Perez: claims warrant consideration under updated Ninth Circuit precedent | Government: BIA decision should stand on the merits | Court: Remanded to BIA to reconsider withholding and CAT claims in light of Henriquez‑Rivas and Madrigal |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (agency deference framework)
- Fernandez‑Vargas v. Gonzales, 548 U.S. 30 (Supreme Court discussion of IIRIRA reinstatement consequences)
- Henriquez‑Rivas v. Holder, 707 F.3d 1081 (9th Cir. en banc) (witnesses who testify against gang members may form a particular social group)
- Madrigal v. Holder, 716 F.3d 499 (9th Cir.) (local official acquiescence can satisfy CAT standard)
- Brand X Internet Servs. v. FCC, 545 U.S. 967 (agency interpretations entitled to deference even if not best reading)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (agency must adequately explain rule changes to receive deference)
- Jimenez‑Morales v. U.S. Att’y Gen., 821 F.3d 1307 (11th Cir.) (reinstatement bar precludes asylum applications)
- Ramirez‑Mejia v. Lynch, 794 F.3d 485 (5th Cir.) (reinstatement bar interpreted to block asylum)
- Herrera‑Molina v. Holder, 597 F.3d 128 (2d Cir.) (reinstatement bar discussed as precluding asylum)