In re C-W-L-, Respondent
Board of Immigration Appeals
Decided October 31, 2007
24 I&N Dec. 346 (BIA 2007)
Interim Decision #3589
FOR RESPONDENT: Theodore N. Cox, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Evalyn Douchy, Assistant Chief Counsel
BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; GRANT and HESS, Board Members.
HURWITZ, Acting Vice Chairman:
This case is before us on remand from the United States Court of Appeals for the Second Circuit pursuant to a February 4, 2006, Stipulation and Order for Dismissal. Based on the parties’ stipulated remand order, the court vacated our March 8, 2005, decision denying as untimely the respondent’s December 28, 2004, motion to reopen our decision of March 6, 2003.1 This remand provides an opportunity to address “whether the [respondent], as an alien with a final order of removal, may file a successive asylum application under [section 208(a)(2)(D) of the Immigration and Nationality Act,]
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a male native and citizen of China who entered the United States without a valid entry document in February 1990. He was issued a Notice to Appear (Form I-862) on June 16, 1997. The respondent was married
On March 21, 2001, an Immigration Judge denied the respondent’s application for asylum and withholding of removal based on his fear of persecution on account of (1) his past interactions with birth control officials2 and (2) the birth of his two children in the United States. We affirmed the Immigration Judge’s decision on March 6, 2003. On December 20, 2004, the respondent filed a “Motion to File Successive Asylum Application Pursuant to
In his motion, the respondent specifically argued that he need not file a motion to reopen in order to submit his successive asylum application for our consideration, and that none of the typical time and numerical limitations on such motions applied to him. We denied this motion as untimely on March 8, 2005, and noted that none of the exceptions to the timeliness requirements for motions to reopen applied. Specifically, we noted that the untimeliness of the motion to reopen was not excused by “changed circumstances arising in the country of nationality.”
The respondent’s argument is premised on the assertion that
On remand, we must consider the relationship between sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act and the corresponding regulations that implement those sections of the statute. Our interpretation of the Act is governed by settled principles of statutory construction. Generally, as a first step, we must look to the actual language used in the statute. It is well settled that the “‘starting point must be the language employed by Congress’” and that we must assume “‘that the legislative purpose is expressed by the ordinary meaning of the words used.’” INS v. Phinpathya, 464 U.S. 183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999). To resolve the question before us, we must therefore look to the language and design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). In so doing, we must give effect, if possible, to all parts of a statute. Kungys v. United States, 485 U.S. 759 (1988).
We also are bound by the implementing regulations that correspond to the relevant portions of the statute that control the issue presented here. Matter of Ponce de Leon, 21 I&N Dec. 154, 158 (BIA 1996; A.G., BIA 1997). These regulations have the force of law. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265 (1954). Regulations, like statutes, must be interpreted to give effect to the entire regulatory scheme. See Matter of Villarreal-Zuniga, 23 I&N Dec. 886, 889 (BIA 2006). In this context, we note that the purpose of the regulations, like statutory provisions, is evidenced by the words chosen by the Attorney General. See Matter of Artigas, 23 I&N Dec. 99, 100 (BIA 2001). “This Board and the Immigration Judges ‘must give effect to the unambiguously expressed intent’ of the Attorney General.” Id. (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)). If the statute is silent or ambiguous with respect to the specific issue addressed by the regulation, the question becomes whether the agency regulation is a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843. An agency’s interpretation of its own regulations is entitled to “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).
We turn now to the statutory provisions that control this case, namely sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act. The authority for an
Section 240(c)(7)(C)(ii) of the Act was originally enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”). This legislation was intended, in part, to curb abuse of the asylum process and other parts of removal proceedings.6 Section 240(c)(7) applies to situations like the one at bar, where an alien seeks to reopen proceedings in which he previously was ordered removed from the United States. It provides that “[a]n alien may file
The regulations generally track and provide guidance on implementing the statutory language of both sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act. For example, with regard to asylum claims, the regulations confer jurisdiction over an asylum claim on the Immigration Court or the Board, depending upon the stage of the proceedings. An asylum application filed “[d]uring exclusion, deportation, or removal proceedings” may be filed with the “Immigration Court having jurisdiction over the underlying proceeding.”
The respondent moved to file a new asylum application with the Board based on the birth of his third child some 21 months after the entry of a final administrative order of removal. Yet he filed no motion to reopen proceedings, a prerequisite to our taking up any issue arising in his case, given the entry of the removal order against him. The plain terms of the statute and regulations set forth above do not permit us to consider the “successive” asylum application, because it is not based on “changed country conditions,” as required by section 240(c)(7)(C)(ii) of the Act. Section 208(a)(2)(D), on which the respondent relies for his premise that changes in personal circumstances justify the new asylum application, simply does not apply to a situation where an asylum applicant has already been ordered removed.
To hold that section 208(a)(2)(D) of the Act is an independent basis for filing an asylum application at any time, including when a final order of removal is in place, would render section 240(c)(7)(C)(ii) (and
We are not persuaded by the respondent’s resort to regulatory history to support his interpretation of the statute. In his brief, the respondent indicates that the Department of Justice’s initial proposed rule implementing section 208(a)(2) of the Act (imposing the 1-year deadline and a numerical limit on asylum applications), expressly stated that “[c]hanged circumstances arising after the denial of the application . . . shall only be considered as part of a motion to reopen.” Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 463 (proposed Jan. 3, 1997) (to have been
We must disagree with the respondent’s interpretation, as it conflicts with the plain terms of the statute and regulations. “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 371 (1988). The cited regulatory history nowhere states that an alien may file unlimited “successive asylum applications” after the entry of a final administrative order of removal without filing a motion to reopen. At best, the cited regulatory provisions implementing section 208(a)(2)(D) of the Act are silent on the issue of reopening, most likely because the requirement of an accompanying motion to reopen once a final order of removal has been entered is clearly set forth in other parts of the statutory and regulatory scheme. We cannot read into the regulatory history a jurisdictional grant that conflicts with the clear terms of the statute and regulations. There is another preferable explanation for the Department’s rulemaking history described above that does not nullify the statutory language governing motions to reopen removal proceedings. Simply, the language at section 208(a)(2)(D) and
This interpretation is in line with the Department’s contemporaneous comments accompanying the interim rule implementing IIRIRA–the same interim rule cited by the respondent. In fact, as to the proposed regulations,10 a commenter “suggested that the time and numerical limitations for motions to reopen should be broader than changed country conditions.” 62 Fed. Reg. at 10,321. In response, as noted above, the Department noted that it had decided to “drop the requirement that the changed circumstances exception to the one year filing deadline in section 208(a)(2) of the Act be raised only through a motion to reopen” and concluded that “the standard for reopening an asylum case provided in
As a whole, published Federal court decisions that have squarely addressed the issue appear to defer to our decision to deny so-called “motions to file successive asylum applications,” although some courts have, in dicta, left open the question whether changed personal circumstances could be a sufficient reason to allow an alien to file successive asylum applications after a final order of removal. Compare Chen v. Gonzales, supra, at 760, Wang v. Board of Immigration Appeals, 437 F.3d at 274, and Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005), with He v. Gonzales, 2007 WL 2472546, at *4, n.9 (9th Cir. Sept. 4, 2007), Chen v. Gonzales, 490 F.3d 180, 184 (2d Cir. 2007), Haddad v. Gonzales, 437 F.3d 515, 518-19 (6th Cir. 2006), and Guan v. Board of Immigration Appeals, 345 F.3d 47, 49 (2d Cir. 2003). The latter cited cases, considering the possibility that successive
III. CONCLUSION
We conclude that the respondent’s successive asylum application cannot be considered by us, except as part of a timely and properly filed motion to reopen or one that claims that the late motion is excused because of changed country conditions. Neither the Board nor the Immigration Judge has jurisdiction to consider a new asylum claim in proceedings that are administratively final and where the standards for reopening are not satisfied. Accordingly, the respondent’s “Motion to File Successive Asylum Application” must be denied. To the extent that the respondent intends a motion to reopen for the purpose of filing a successive asylum application, that motion will also be denied as untimely and not supported by “changed country conditions arising in the country of nationality or the country to which removal has been ordered.” Section 240(c)(7)(C)(ii) of the Act.
Finally, although the respondent argues that a remand is appropriate because his wife’s petition for an alien relative has been approved, he would have to move to reopen proceedings before we can consider any application for relief on this basis, since he is currently under a final order of removal. As discussed above, such a motion to reopen would be untimely. Furthermore, without evidence of a currently available visa, the respondent has not shown that he is eligible for any relief from removal based on approval of a petition for an alien relative visa filed on his behalf. Consequently, reopening on this basis would be inappropriate, even if a timely motion were filed. Accordingly, the respondent’s motion will be denied.
ORDER: The motion is denied
Notes
Regarding the changed circumstances exception in section 208(a)(2)(D) [of the Act], the Department has . . . decided to provide a better definition of this exception by indicating that the definition may include either changed conditions in the home country or changes in objective circumstances relating to the applicant in the United States, including changes in applicable U.S. law, that create a reasonable possibility that the applicant may qualify for asylum. Because of inconsistency between the formulation of changed circumstances in section 208(a)(2)(D) and the formulation in section 240(c)(5)(ii) of the Act, which permits an alien to file a motion to reopen beyond the time limit normally applicable to such a motion, the Department has decided to drop the requirement that, for purposes of the prohibition in section 208(a)(2)C) [sic], such exception may only be raised through a motion to reopen.
62 Fed. Reg. at 10,316.