Chen v. MukaseyChen v. Mukasey
- Reporters:
- , ,
- Before:
- William C. Canby Jr., Susan P. Graber, Ronald M. Gould
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted November 8, 2007—Seattle, Washington
Filed May 2, 2008
Before: William C. Canby, Jr., Susan P. Graber, and Ronald M. Gould, Circuit Judges.
Opinion by Judge Canby
COUNSEL
Anh-Thu P. Mai and Lyle D. Jentzer, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.
OPINION
CANBY, Circuit Judge:
Petitioner Qing Li Chen is a citizen of China who is subject to a final order of removal. She seeks to file an application for asylum based on a change in her personal circumstances. The Board of Immigration Appeals (“BIA“) held that such an application could be presented only as part
Chen‘s petition presents a question of the proper interpretation of two arguably conflicting immigration statutes and their implementing regulations. One statute and its regulation provide that an alien who is subject to a final order of removal is limited to one motion to reopen the removal proceedings, which motion must be filed within 90 days of the entry of a final order of removal.1
Another statute and its regulation provide that aliens who apply for asylum must do so within one year after arrival in the United States, and must show that they have not previously applied for and been denied asylum.
The question presented is whether the latter, broader exception permits Chen not only to avoid the general number and time limits of the asylum statute,
FACTUAL AND PROCEDURAL BACKGROUND
Chen entered the United States on October 9, 1999. She was apprehended for presenting a counterfeit passport and, after being released on a $7,500 bond, she moved to New York City. An exclusion hearing was held and Chen failed to appear. She was ordered removed in absentia on November 24, 1999. A warrant issued for her removal, and she failed to comply with INS instructions for departure. She moved to reopen the removal proceedings, but her motion was denied.
In 2001, Chen married Yan Zheng in New York City and the couple had their first child in 2002. Chen filed a second motion to reopen the removal proceedings in January 2004, and the immigration judge denied this motion as barred by the time and number limits of
Over a year later, in 2005, Chen had her second child. She then filed a “Motion to File Successive Asylum Application Pursuant to
DISCUSSION
Under the Real ID Act,
[1] In In re C-W-L-, 24 I. & N. Dec. at 350-51, a three-judge panel of the BIA held that a successive and untimely asylum application filed by an alien under a final order of removal must satisfy the requirements for a motion to reopen. A published decision issued by a three-judge panel of the BIA has precedential effect and is entitled to deference under Chevron, so long as: (1) the underlying statute is ambiguous, and (2) the BIA decision itself is not arbitrary, capricious, or contrary to law. Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-14 (9th Cir. 2006).
[2] Congress has not unambiguously expressed its intent with regard to the question at hand. The asylum provision,
In making the threshold determination under Chevron, a reviewing court should not confine itself to examining a particular statutory provision in isolation. Rather, the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.
Nat‘l Ass‘n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2534 (2007) (internal quotation marks, alterations and citations omitted). Nowhere does the statute indicate
[3] We conclude that the BIA‘s interpretation is reasonable. An alien subject to a final order of deportation must file any application for asylum with the BIA. See
Chen contends that the BIA‘s interpretation is unreasonable because it renders the broader changed conditions exception for asylum applications in
[4] Nor are we persuaded that a regulatory comment cited by Chen mandates a different result. This comment, published by the Department of Justice‘s Executive Office for Immigration Review, accompanied a proposed rule change in 1997. 62 Fed. Reg. 10,312, 10,316 (Mar. 6, 1997). It states that the Department of Justice (“DOJ“) decided to drop the regulatory requirement that a successive asylum petition based on changed circumstances be raised through a motion to reopen. Id. We agree with the Seventh Circuit that the legal significance of this language is not entirely clear, and it does not trump the legal effect of the BIA‘s interpretation of the two statutes. See Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir. 2007). Moreover, as the BIA‘s decision points out, the DOJ‘s failure to require motions to reopen in every case does not necessarily mean that a motion to reopen is not required when the alien is subject to a final order of deportation. In re C-W-L-, 24 I. & N. Dec. at 353. It is not inconsistent with the DOJ‘s comment to apply the reopening limitations independently of the asylum statute so that they govern an alien such as Chen under a final order of removal. See id.
The plain language of the statute further supports this approach because the changed conditions exception for asylum
We acknowledge language in a handful of decisions suggesting that aliens in Chen‘s position may seek asylum without a motion to reopen. See He v. Gonzales, 501 F.3d 1128, 1133 n.9 (9th Cir. 2007); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 273 (2d Cir. 2007) (Calabresi, J., concurring); Haddad v. Gonzales, 437 F.3d 515, 518-19 (6th Cir. 2006); Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003) (per curiam). In He, after holding that changed personal circumstances would not support a successive and untimely motion to reopen removal proceedings, we stated in a footnote that the Hes could nevertheless file an application for asylum apart from the removal proceedings under the asylum statute. See He, 501 F.3d at 1133 n.9. We acknowledged, however, that the issue was not before us. Id. Because the interplay between the two statutory provisions was not “presented for review” in He, we are not bound by He‘s offhand observation. See Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per curiam). Similarly, the Second and Sixth Circuits made their suggestions in dicta. In deferring here to the BIA‘s statutory interpretation, we reject these dicta.
Two other circuits have published opinions squarely addressing the question presented here, and both reach the conclusion that the BIA reached in In re C-W-L-. See Cheng Chen, 498 F.3d at 760-61; Zheng v. Mukasey, 509 F.3d 869, 872 (8th Cir. 2007). “Deference is especially appropriate in the context of immigration law, where national uniformity is paramount.” Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th Cir. 2006). National uniformity in the immigration context also counsels deference where, as here, a failure to defer would cause a split of authority among the circuits.
[5] Chen‘s final contention is that her removal will violate “the U.N. Protocol Relating to the Status of Refugees, the Convention Against Torture, and [her] Due Process rights.” She has not established her right to any relief that may be available under any of these provisions, however, and she has failed to show how any of them is violated by the application of reasonable procedural requirements for the adjudication of her claims. See Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir. 2001) (rejecting claim that Convention Against Torture overcomes time limits for assertion of claims in deportation proceedings); Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (stating that “the State certainly accords due process when it terminates a claim for failure to comply with a reasonable procedural or evidentiary rule“).
CONCLUSION
The BIA‘s interpretation of
PETITION FOR REVIEW DENIED.