96 Cal. Daily Op. Serv. 2042, 96 Daily Journal D.A.R. 3456 Pao Yang Ying Yang Jimmy Yang Bao Yang Seyar Yang Phonesavanne Yang v. Immigration and Naturalization Service96 Cal. Daily Op. Serv. 2042, 96 Daily Journal D.A.R. 3456 Pao Yang Ying Yang Jimmy Yang Bao Yang Seyar Yang Phonesavanne Yang v. Immigration and Naturalization Service
The petitioners were denied asylum in the United States under a regulation which categorically precludes asylum for refugees who have “firmly resettled” in another country. See
I
The petitioners are a Hmong family from Laos. They claim that during the Vietnam War, members of their family cooperated with the American military and CIA against the communists. In return, they say, they received promises of asylum in the United States.
When the Pathet Lao came to power in Laos in 1975, petitioner Pao Yang, his wife Ying, and others of their extended family fled to Thailand. They claim that they immediately sought passage to the United States, but that the American government denied their request for asylum. For three years the family remained in a Thai refugee camp, until the French government offered them admission to France as refugees. The Yangs accepted the French offer, they say, because Thai authorities threatened them with deportation to Laos if they refused.
Pao and Ying Yang thus took refuge in France, where they remained for fourteen years and had four children, who are also petitioners in this case. In spite of this long period of residence in France, the BIA determined that under French law the family remained foreign refugees rather than French citizens or permanent residents. It is unclear whether the Yangs either applied or became eligible for permanent residence in France. In any event, they maintain that they never intended to remain in France. Pao Yang attests that the family considered France merely a stopping point on their way to the United States, but that the French government refused them travel documentation until 1991. Once they obtained their documents, the parents came to the United States as visitors. The children followed.
The Yangs overstayed their visas, and the INS ordered them to show cause. On January 28, 1994, an immigration judge (“IJ“) found them deportable under section 241(a)(1)(B) of the Immigration and Nationality Act (“INA“),
The Yangs conceded arguendo that they were at one time firmly resettled in France, but denied that they necessarily retained the right under French law to return to France. Furthermore, returning to Laos was not an option. According to an INS report, the Yangs faced continuing threats to “life or freedom” in Laos. On the basis of this advice, the IJ withheld the family‘s deportation to Laos under section 243(h) of the INA,
The Yangs appealed to the Board of Immigration Appeals (“BIA“) solely on the basis that regulation 208.14(c)(2) was ultra vires. The BIA summarily dismissed the appeal on June 28, 1994. The Yangs renew the claim on appeal to this court. We review de novo the BIA‘s determination of this purely legal question regarding the requirements of the Immigration and Nationality Act. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995).
II
Under INS regulation 208.14(c)(2), the finding that an alien has “firmly resettled” in a third country prior to his or her arrival in the United States bars that alien‘s eligibility for asylum.
Section 208 gives the Attorney General discretion to grant asylum to aliens who meet a statutory definition of eligibility. In practice this decision is delegated to the INS, see Patel v. INS, 638 F.2d 1199, 1201 n. 1 (9th Cir.1980), which considers asylum applications in two stages. See Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995) (describing two-stage procedure). At the first stage, the INS inquires into eligibility. An alien is eligible if he or she is determined to be a “refugee” within the meaning of INA section 101(a)(42)(A),
At the second stage, the INS makes a discretionary decision on the application. Section 208 does not explicitly limit or structure this exercise of discretion, except to disqualify any alien “convicted of an aggravated felony.”
The question before us is whether the INS may exercise this discretion by creating a rule that automatically excludes a particular class of applicants. Under the INS regulations in effect until October 1, 1990, the INS was to evaluate an asylum application by weighing against each other a number of equitable factors. Matter of Pula, 19 I. & N. Dec. 467, 473-74 (BIA 1987) (listing the factors to be considered for grant of asylum); Kazlauskas, 46 F.3d at 906 (approving and applying the Pula standards). These factors had no fixed weight, but were to be taken together and viewed in the “totality of the circumstances.” Pula, 19 I. & N. Dec. at 474. The October 1990 regulations, which are at issue in this appeal, follow the Pula approach, but add to the calculus categorical bars to asylum for aliens in three categories,5 one of which covers aliens “firmly resettled” in a third country.
We must reject the argument that regulation 208.14(c)(2) exceeds the authority of the Attorney General if we find that the regulation has a “reasonable foundation ... that is, if it rationally pursues a purpose that it is lawful for the INS to seek.” Reno v. Flores, 507 U.S. 292, 309, 113 S.Ct. 1439, 1451, 123 L.Ed.2d 1 (1993) (citing Carlson v. Landon, 342 U.S. 524, 541, 72 S.Ct. 525, 534-35, 96 L.Ed. 547 (1952)) (internal quotations omitted). Following the doctrine announced 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), we must first consider “whether Congress has directly spoken to the precise question at issue.” Id. at 842-43, 104 S.Ct. at 2781. Thus we begin with traditional methods of statutory interpretation. If it then appears that Congress has been silent with respect to the specific issue, “the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. at 2782. In the face of ambiguity or Congressional silence, we should defer to the agency‘s considered judgment. Id.; Van Blaricom v. Burlington N. Ry. Co., 17 F.3d 1224, 1225 (9th Cir.1994).
The language of section 208 is silent as to firm resettlement. As discussed above, it simply grants the Attorney General “discretion” to grant asylum to eligible aliens, subject only to an exception for aliens convicted of aggravated felonies.
First, the Yangs mistakenly presume that the equitable factors announced in Pula are themselves statutorily mandatory, and reflect a Congressional determination that these factors must be considered in any exercise of “discretion” under section 208. This is false. The Pula factors were not dictated by the INA, but were created judicially by the BIA. The INS is, presumably, free to alter or amend them, provided it does so in a manner consistent with the text and purposes of the INA, and without otherwise running afoul of the “arbitrary and capricious” standard set out in section 706(2)(A) of the Administrative Procedure Act,
Second, it is a well-established principle of administrative law that an agency to whom Congress grants discretion may elect between rulemaking and ad hoc adjudication to carry out its mandate. American Hosp. Ass‘n v. NLRB, 499 U.S. 606, 611-13, 111 S.Ct. 1539, 1543, 113 L.Ed.2d 675 (1991); NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 1771-72, 40 L.Ed.2d 134 (1974). As the Supreme Court has stated, “even if a statutory scheme requires individualized determinations, the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority.” American Hosp., 499 U.S. at 612, 111 S.Ct. at 1543. Thus, in American Hospital, the Court permitted the NLRB to promulgate a rule even though the underlying statute, which instructed the agency to make a particularized decision “in each case,” suggested a Congressional preference for ad hoc adjudication over rulemaking. Id. at 609-11, 111 S.Ct. at 1542.
Under the INA, the term “discretion” does not supplant this general grant of permission for rulemaking. In Reno, the Supreme Court upheld an INS regulation in circumstances similar to those before us. The respondents were a class of alien juveniles who had been taken into INS custody pending their deportation hearings. 507 U.S. at 293-95, 113 S.Ct. at 1443. Custody was intended to secure their appearance before the INS, and to ensure their safety. Id. at 295-97, 113 S.Ct. at 1444. The governing statute, however, permitted the Attorney General “in [her] discretion” to release such aliens into the custody of responsible citizens. Id. at 293-95, 113 S.Ct. at 1443;
The Supreme Court rejected this argument and upheld the regulation. It held that a ” ‘blanket’ presumption of the unsuitability of [unrelated] custodians” was not inconsistent with an exercise of discretion under section 1252(a)(1). Id. at 312-14, 113 S.Ct. at 1453. Although discretion under the statute required “some level of individualized determination ... this [did] not mean that the Service must forswear use of reasonable presumptions and generic rules.” Id. (quoting INS v. National Center for Immigrants’ Rights, 502 U.S. 183, 193-96, 112 S.Ct. 551, 558-59, 116 L.Ed.2d 546 (1991)) (quotation marks omitted). Under this analysis, an exercise of discretion would be sufficiently “individualized” if the INS applied its regulation fairly in individual cases, by individually determining whether each alien would be eligible for the prescribed relief. Id. In the present case, this standard is clearly met. The Yangs appeared before an IJ and conceded their firm resettlement in France. There can be no question that the regulation determined the outcome of the Yangs’ application.
Recently this court considered and upheld a companion provision to the regulation now at issue. In Komarenko, 35 F.3d 432, we held that regulation 208.14(c)(1) did not exceed the authority of the Attorney General under section 1158(a). The regulation categorically barred asylum for any alien convicted of a “particularly serious crime.” Id. at 436. We found the regulatory bar to be consistent with the discretionary mandate of the statute, both because the statute did not explicitly address the specific issue, and because the INS would be required under the regulation “to exercise individualized discretion in determining whether a particular offense should be counted as ‘particularly serious.’ ” Id. Komarenko thus stands for the proposition that “discretion” under section 1158(a) may be exercised by rules giving fixed weight to a particular factor.
This, however, does not conclude our inquiry under Chevron ‘s first prong. The Yangs offer an independent textualist argument to support their conclusion that the regulation is ultra vires. They read INA section 208 together with sections 207 and 209, all three of which were added to the INA enacted by the Refugee Act of 1980. Refugee Act of 1980, Pub.L. No. 96-212, § 201(b), 94 Stat. 102 (1980), codified as amended at
However, we find important differences between the present statutory provisions and those discussed in Cardoza-Fonseca. In that case the Supreme Court compared the standards of proof in INA sections 243(h) and 208. Section 243(h) required the Attorney General to withhold deportation for an alien whose “life or freedom would be threatened” in his or her native country. Section 208 gave the attorney discretion to grant asylum to an alien who showed a “well-founded fear” of persecution. The two statutes clearly deployed different and incompatible language to describe their standards of proof. However, the government wished to avoid certain “anomalous” results of having two separate standards of proof in asylum cases. It therefore advised the Court to hold that the same standard of proof applied under both sections. 480 U.S. at 430, 107 S.Ct. at 1212. The Court disagreed. It reasoned that whereas section 208 expressed both subjective (“fear“) and objective (“well-founded“) components, section 243(h) described a purely objective inquiry. Id. at 430-31, 107 S.Ct. at 1212-13. The Court concluded that by omitting the word fear from the language of section 243(h), and including it in section 208, Congress meant to express its intention that the two standards of proof should differ. Id. at 432, 107 S.Ct. at 1213.
The present case is not governed by Cardoza-Fonseca because the statutory provisions before us present no comparable inconsistency. Section 207 establishes the procedure by which an alien not present in the United States may apply for entry as a refugee.
To hold otherwise would improperly constrain the statutory discretion of the Attorney General. The Yangs’ “deliberate exclusion” argument clearly justifies too much; their reasoning suggests that the mention of felons in section 208 precludes an INS rule barring felons under section 207. Likewise, section 207 directs the Attorney General to admit refugees of “special humanitarian concern;” surely this does not prohibit humanitarian concerns from underpinning the regulations written under the authority of section 208.
Against this conclusion, the Yangs argue that firm resettlement appeared in section 207 but not in 208 because Congress intended to favor applicants already present in the United States. They contend that this policy is evident in other provisions of the INA, which, for example, allow aliens illegally present in the United States to win suspension of deportation, registry, or amnesty--privileges unavailable to aliens who remain in their homelands. See
The second half of the Yangs’ textualist attack upon the regulation focuses on the relationship between sections 208 and 209. Here again, the analogy with Cardoza-Fonseca is inapt. Section 209 permits a section 208 asylee to become a “permanent resident” after one year of physical presence in the United States, provided the alien is not firmly resettled in another country.
Thus we conclude our inquiry under Chevron ‘s first prong: Congress has been silent on the relevance of firm resettlement to asylum applications under section 208. Moving on to Chevron ‘s second prong, we must now ask whether regulation 208.14(c)(2) reflects a permissible construction of the statute. There can be no question that it does. In Rosenberg v. Yee Chien Woo, 402 U.S. 49, 91 S.Ct. 1312, 28 L.Ed.2d 592 (1971), the Supreme Court held that the INS must take firm resettlement into account in determining whether an applicant met the statutory definition of a refugee. Id. at 54-55, 91 S.Ct. at 1316 (citing “the central theme of all 23 years of refugee legislation-the creation of a haven for the world‘s homeless people“). Firm resettlement has long been a decisive factor in asylum policy. Even before the regulation was promulgated in 1990, firm resettlement seems to have precluded a grant of asylum in practice. See Matter of Soleimani, Int. Dec. 3118 (observing that “a finding that an alien has firmly resettled in a third country would normally preclude a grant of asylum as a matter of discretion“).
Nothing in the Refugee Act or its legislative history alters the long-standing significance of firm resettlement to the asylum process. The stated purpose of the Act
declares that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.... The Congress further declares that it is the policy of the United States to encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible.
... The objectives of this Act are to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States, and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted.
Refugee Act of 1980, § 101. Regulation 208.14(c)(2) is fully consistent with these aims. Congress intended to give relief to individuals “subject to persecution in their homelands.” Because firmly resettled aliens are by definition no longer subject to persecution, the regulation creates no conflict with this aim. Moreover, the regulation seems directly to “encourage” other nations “to provide assistance and resettlement.” Finally, to the extent that the Act‘s purposes are procedural, the regulation does not impede them.8
Furthermore, we cannot say that regulation 208.14(c)(2) represents an unreasonable exercise of the Attorney General‘s discretion. Without this regulation, a firmly resettled alien living abroad might circumvent section 207 by coming illegally to the United States and applying under section 208. Congress need not have foreseen the “bootstrapping” problem for this rationale to support the regulation; it is precisely to cope with the unexpected that Congress deferred to the experience and expertise of the Attorney General in fashioning section 208. Regulation 208.14(c)(2) effectively harmonizes sections 207 and 208 by closing a loophole incentive to illegal immigration. See also Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir.1994) (Regulation 208.14(c)(2) “preclude[s] a deportable alien from bootstrapping an asylum claim simply by unilaterally severing his existing ties to a third country....“).
III
Because we find that regulation 208.14(c)(2) contravenes neither the letter nor the spirit of its enabling statute, the petition is DENIED.