*1 Ineffective Assistance of Counsel B. GARCIA, Petitioner, Victor

Claim v. Finally, we decline to address SESSIONS, III, Attorney Jefferson B. that his counsel was inef Fuentes’s claims States,* General of the United to ask for the additional failing fective for Respondent. in Fuentes’s TOL and one-level reduction “conce[ding] that apparently [Fuentes] 15-2571; Nos. 16-1964 than purpose had no other to use Appeals, United States Court coun to commit crimes.” Unless weapon First Circuit. performance deficient prejudicially sel’s record,” “manifestly apparent from the we 3,May assistance do not entertain ineffective appeal. on direct United States v.

claims (1st

Rivera-Gonzalez, 626 F.3d Wyatt, 2010) States (quoting

Cir. United v. (1st 2009)).

561 F.3d Cir. Such

“extraordinary ap is not circumstance[ ]” in the record us. United

parent before (1st Hicks, Cir.

States Martins,

2008) (quoting United States v. 2005)). Thus, 139, 155 F.3d we prejudice,

dismiss this claim without leav to raise it in a collateral

ing Fuentes free § 2255.

proceeding under 28 U.S.C.

III. reasons, affirm foregoing

For the we dismiss his inef-

Fuentes’s sentence and prejudice. claim without

fective-assistance * 43(c)(2), Attorney history App. R. P. and the Pursuant to Fed. dant’s checkered criminal Sessions, B. III has been community’s burgeoning problems with vio- General Jefferson Attorney General Lor- illegal possession substituted for former lent crime linked to the firearms”). Lynch respondent. etta E. as the use of

Nancy Kelly, J. with whom John Will- Carrera, Immigration shire the Harvard & Refugee Clinic, Legal and Greater Boston Services, MA, Boston, brief, were on for petitioner. Conway, Attorney,

Kevin J. Office of Division, Litigation, Immigration Civil Justice, Department United States Oliveira, Attorney, whom Andrew Trial Of- Benja- Immigration Litigation, fice of Mizer, Principal Deputy min C. Assistant Markel, General, and Justin Sen- Counsel, brief, Litigation ior were on respondent. BARRON, SELYA, STAHL,

Before Judges. Circuit BARRON, Judge. Circuit dispute, In this we must decide whether subject to aliens who are reinstated orders Below, may asylum. of removal (“IJ”) immigration judge and the (“BIA”) Immigration Appeals Board of aliens not each concluded that such they may asylum, though even be apply for withholding The IJ entitled to of removal. BIA their conclusions on and the based Illegal Immigra- provisions certain Immigrant Responsibility subject eount how came to tion Reform and 104-208, Act of Pub. L. 110 Stat. reinstated order of removal that the IJ (“IIRIRA”), Depart- as well as 3009-546 BIA way and the ruled stands of his (“DHS”) Security regu- ment of Homeland asylum request. implement provisions. those

lations that And, basis, the IJ and the BIA on A. (“Garcia”), Garcia Garcia ruled Victor withholding The distinction between who is to a a citizen of Guatemala impor- removal and is subtle but removal, ap- order of could not reinstated by describing withholding tant. start We ply asylum, notwithstanding that the IJ removal. (and government determined does Congress codified the to withhold dispute) that he is entitled to *4 1231(b)(3)(A). § in ing of removal 8 U.S.C. persecution of removal due to the he would Aguirre- 305; § IIRIRA see also INS in country. face his home Aguirre, 415, 420, 1439, 526 U.S. 119 S.Ct. brings pe- these consolidated Garcia now (1999). 143 L.Ed.2d 590 This statute di review, in challenges titions for which he rects, fashion, that, categorical in if the the IJ’s and the BIA’s his denial of decides that an alien’s General application ground key provi- on the that a “life or in would be threatened” freedom plainly sion of IIRIRA entitles him to seek country to which be removed he that, any He also contends in asylum. race, of religion, “because the alien’s na event, regulations the DHS are unreason- tionality, membership particular in a social able, they subject permit insofar as aliens or group, political opinion,” then “the At reinstated orders of to to obtain torney may General remove alien to withholding of removal but not to for 1231(b)(3)(A).1 § country.” 8 U.S.C. [that] asylum, he because contends that IIRIRA any provide drawing does not basis for statutory The roots of this provision such withholding a distinction between of may be traced to the 1951 United Nations asylum. removal and For the reasons Relating to the of Refu Convention Status follow, uphold agency 1951) (the we decisions be- 28, gees, (July 150 189 U.N.T.S. Convention”). low. “Refugee See INS v. Cardo za-Fonseca, 480 U.S. 107 S.Ct. I. (1987). 1207, 94 L.Ed.2d 434 The United Immigration distinguished by Refugee law is its States acceded to the Convention complexity clarity. by ratifying more than its Relating We the 1967 Protocol thus to provide background Refugees, need some of 19 Status U.S.T. 6223 (Nov. 1968) (the Protocol”). 6, to the of legal “Refugee By before we merits turn so, so, doing “agree[d] issue that we must resolve. To do we the United States first the distinction comply provisions describe between with- with the substantive holding asylum. through removal and We then Articles 2 34” of the Refugee Con Cardoza-Fonseca, 429, parts describe the relevant of IIRIRA— vention. 480 U.S. might appear glance some which on first 107 Refugee S.Ct. 1207. Article 33.1 of the inbe tension with one another—and the provides: Contracting Convention “No (‘refouler’) implementing regulations. Finally, expel we re- State shall or return 1231(b)(3)(B) § withholding 8 U.S.C. then cer- describes ders—who not benefit from 1. specific categories 1231(b)(3)(B). tain of aliens—not includ- § of removal. See 8 U.S.C. ing subject those reinstated removal or- preme to the refugee explained, Congress’s manner whatsoever Court has statutory applying of territories where his life or mechanism for asy frontiers implements threatened on account of lum Article “precatory” freedom would be 34’s Cardoza-Fonseca, race, nationality, membership language. religion, his 441, 107 particular group political of a social S.Ct. 1207. Thus, at 6276.2 8 U.S.C. opinion.” U.S.T upshot of the domestic statutory 1231(b)(3)(A) § “mandato implements this provisions implement these two arti duty” as a “con

ry of the United States Refugee cles of the Convention is this: tracting Protocol. State[ ]” aliens who can probability” show “clear Cardoza-Fonseca, 480 U.S. at is, persecution—that that “it is more S.Ct. likely than not that the alien would be Stevic, asylum. Congress persecution,” We now turn to codi- INS v. fied the 81 L.Ed.2d (1984)—are 1158(a)(1), provides: “Any mandatory U.S.C. “entitled to or, physically present suspension deportation,” alien who is the Unit- itas is now known, removal, ed States or who arrives the United Cardoza- Fonseca, ... irrespective States of such alien’s sta- 480 U.S. at 107 S.Ct. 1207 tus, asylum in may apply (emphasis original). accordance 8 U.S.C. ” 1231(b)(3)(A). 604; contrast, .... with this section IIRIRA see aliens “who *5 Aguirre-Aguirre, 420, ... [only] also 526 U.S. at 119 can show a well-founded fear of Thus, is, § 1158-lays persecution”—that refugees S.Ct. 1439. 8 U.S.C. out per “discretionary gives mechanism which definition laid out in 8 U.S.C. authority 1101(a)(42)(A)—“are § Attorney to any General not entitled to Cardoza-Fonseca, asylum grant thing.” the broader relief of to refu- 480 U.S. at Cardoza-Fonseca, gees,” (emphasis original). 480 U.S. at 107 S.Ct. 1207 in In stead, (emphasis original)—that pursuant § 107 1207 in to 8 S.Ct. U.S.C. such eligible is, 1101(a)(42)(A), § merely aliens “are for pursuant 8 U.S.C. the discre tionary asylum.” (emphasis who can show a “well-founded fear relief of Id aliens Aguirre-Aguirre, race, persecution religion, original); of on account of see also 526 (“[WJhereas nationality, membership particular so- U.S. at 119 S.Ct. 1439 withholding mandatory Attor group, political opinion.” cial or See also 8 is unless the 1208.13(b). 208.13(b), ney excep §§ determines one of the C.F.R. General asylum applies, tions the decision whether statutory grant of The roots of the an granted eligible should be alien is may right asylum for also be Attorney committed to the General’s dis Protocol, Refugee traced to the in which cretion.”). Refugee States acceded to the United Cardoza-Fonseca, particular, In Article 34 of the In the Court made Convention. that—given clear the differences provides: Contracting Convention “The between asylum—the far facilitate removal and possible States shall as of governing the two were neces- assimilation and naturalization of refu- standards And, sarily 449-50, gees.” 19 U.S.T. at 6276. as the Su- different. 480 U.S. 1(2) country refugee opinion, 2. of of his national- A is defined in Article is outside who, or, fear, "owing Convention as someone ity owing and is unable to such is being persecuted to well-founded fear of for unwilling protection to avail himself of the race, religion, nationality, member- reasons country.” 19 U.S.T. at 6226. ship particular group political aof social clear-probabili- and the statutes that enable aliens to ob- Specifically, 1207. S.Ct. each, triggering the United States’ final ty test tain we need discuss one mandatory duty to withhold removal is statutory provision is of direct rele- than the “well-founded demanding more vance to the issue we confront here. 8 trigger must be satisfied to fear” test that § 1231(a)(5)—part U.S.C. of section 305 of exercise of his dis- Attorney General’s IIRIRA—states that alien to a grant asylum. Id. cretion as to whether eligible “is reinstated order not any relief under ... Withholding of removal and also Code], [chapter of Title 8 the U.S. key respect: they afford differ in another and the alien shall be removed under the particu- types aliens distinct of benefits. prior entry.” order at time after the lar, asylum, though upon obtainable a less- 1231(a)(5). provision This U.S.C. matters showing, demanding “affords broader ben- because, parties dispute here as the to this recipient to the than does withhold- efits” Cardoza-Fonseca, agree, asylum is a form of “relief’ under ing removal. n.6, chapter 1207. As the Ninth 12. at 428 S.Ct. Circuit summarizes: Thus, question arises as to how this asylum ... a application Unlike an seemingly statutory sweeping bar to relief grant application of an alien’s for with- seemingly categorical relates both to the holding adjustment is not a basis for grant provided to seek status, legal permanent family resident to aliens in and to the di- granted members are not derivative sta- rective to the General to with- tus, only prohibits re- [the relief] hold removal certain enumerated cir- country petitioner moval of the cumstances set forth risk, prohibit but does not removal to a 1231(b)(3)(A). all, provi- After that latter country. non-risk appears chapter sion also Ashcroft, (9th

Lanza v. DHS, 2004) charged which is now with admin- (quoting Castellano-Chacon v. *6 IIRIRA, INS, (6th 2003) istering has offered its answer to (second question. It in regulations has done so original)). alteration in the In addi- tion, granted asylum may attempt aliens be issued harmonize the three statu- document, refugee enabling tory 1258(a)(1), §§ travel them provisions—8 U.S.C. of the travel outside United States and 1231(b)(3)(A)—along contrast, subsequently By return. aliens obligations the United States’ under the merely withholding (“CAT”). who are entitled to Against Convention Torture See removal receive no such benefit. 8 C.F.R. Against United Nations Tor- Convention 223.1, They §§ simply protected 223.2. Cruel, Inhuman, ture and Other or De- being from sent back their home coun- grading Punishment, Treatment or S. Thus, try. an alien who is entitled to with- (1988), Treaty Doc. No. 100-20 holding may of removal still have an inter- (entered U.N.T.S. 95 into force June seeking asylum, given greater est in Regulations Concerning 1987); the Con- it an benefits affords alien. See 8 U.S.C. Against Torture, Reg. vention 64 Fed. 1158(c)(1).3 § (Feb. 19, 1999); see also Aliens and Security; Reorgani- Nationality; Having Homeland described distinction be- Regulations, asylum, Reg. tween of removal and zation of 68 Fed. accept employment 3. Aliens whose removal has been withheld thorized to in the United are, however, 12(a)(5), (10). asylum, § granted like au- 8 C.F.R. 274a. aliens States. (Feb. 2003) (transferring expressed the functions such an alien has a fear of per- Immigration and Naturalization Ser- asylum secution and after an officer has Department vice to the of Homeland Secu- reasonable, determined fear to be rity recodifying regulations).4 alien is entitled to withholding of removal country to his home if Gener- First, regulations The do so as follows. al then decides that the alien’s life or 241.8(a) § that an requires C.F.R. alien freedom would be threatened in his home illegally “who reenters the United States country protected because of a ground. having after been removed ... shall be removed from the United States rein- B.

stating prior order.” That subsection provides further that such an no alien “has With that legal background in place, we hearing immigration to a before an now turn to plight. Garcia’s current Gar- Id.; judge in such circumstances.” see also speaks cia—who English only no mini- 1241.8(a). § 8 C.F.R. Spanish—first mal entered the United (e) regulation, of that Subsection howev- States unlawfully years in 2004. Three la- er, “[exception.” pro- then creates an It ter, immigration authorities “expresses vides that an alien who a fear apprehended Garcia, United States de- returning country designated to the in” him, tained and then him ordered removed his reinstated removal order “shall im- country. from this From all that the record mediately referred to an officer reveals, appears it that Garcia would have an interview to determine whether obtaining asylum been successful in had he persecution alien has a reasonable fear of And, sought too, it at that appears, time. § pursuant or torture 208.31 he have been entitled to withholding 241.8(e); chapter.” 8 C.F.R. see also 8 But, request removal. he did not either 1241.8(e). regulation C.F.R. refer- removal, asylum withholding or appar- exception, the end of this enced 8 ently language because of the barriers he 208.31(e), provides C.F.R. turn that: faced and he because was uncounseled. If an officer determines that Accordingly, Garcia was removed to Gua- alien described this section has a rea- temala in 2007. torture, persecution sonable fear of Guatemala, returning After

the officer shall so inform the alien and unlawfully then entered the United States 1-863, issue a Form Notice of Referral February for a second time in 2015. Once Immigration Judge, for full con- Garcia had crossed the border into the *7 withholding request sideration of the for States, immigration United authorities de- only. of removal recogni- tained him. Released on his own added); (emphasis see also 8 C.F.R. zance, permitted was Garcia to travel to 1208.31(e).5 § stay family Massachusetts mem- Thus, regulations, under the an alien bers. Garcia was informed about two subject to a reinstated order of removal months later that his 2007 removal order However, noted, asylum. for after would be reinstated. As the IJ after DHS, Despite statutory governs agency’s § the transfer to 5. 8 C.F.R. 208.16 the con- responsibilities assigned Attorney application Gen- of the alien’s for with- sideration removal, “indigenous holding eral that are to the functions of made under 8 whether 1231(b)(3)(A) § General” were retained in the U.S.C. or under the CAT.See 208.16(b), (c); 1208.16(b), (c). .Department Reg. § § of Justice. 68 Fed. at 9824. 8 C.F.R. counsel, “expressed a

retaining Garcia fear such relief would afford him. Garcia argument on account of his based this on text of return Guatemala of 8 ethnicity, family membership, religious 1158(a)(1),which, § and argued, U.S.C. he enti- beliefs,” referred to an and was tied even an alien to a reinstated 241.8(e) §§ officer to 8 C.F.R. pursuant asylum. removal order to seek 1241.8(e). 208.16, §§ also 8 C.F.R. and See decision, In rejected his oral the IJ Gar- procedures out for (laying 1208.16 consid- argument eligible cia’s that he was to seek withholding eration of under 8 asylum. The IJ held that is a form 1231(b)(3)(A) § and U.S.C.. under provided by chapter of “relief’ 12 of Title 8 CAT). asylum officer conducted the of the U.S. Code and thus that 8 U.S.C. required interview and concluded that Gar- applying barred Garcia from showing cia met burden of a “rea- had his for it. The also IJ held DHS persecution.” sonable fear of 8 C.F.R. implementing regulations supported this 1241.8(e). 241.8(e), §§ Thus, that, by conclusion. the IJ concluded Thereafter, Garcia’s case was referred virtue of Garcia’s reinstated removal or- an In an oral decision issued on IJ. der, 1158(a)(1), notwithstanding 4, 2015, August the IJ first concluded that seeking asylum, Garcia was barred from Garcia, “credible,” the IJ found had whom regardless of whether he was entitled to burden, pursuant met his to 8 U.S.C. withholding removal.. 1231(b)(3)(A), showing that “future appealed Garcia then the IJ’s ruling oral persecution likely is ‘more than not’ to 1, 2015, to the BIA. On December the BIA granted and therefore occur” Guatemala affirmed the respects IJ’s decision all application withholding of re- Garcia’s and remanded the case so that the IJ Specifically, moval. found that IJ Gar- background could conduct certain checks experienced past persecution cia had “on ordering withholding before of Garcia’s family membership account of as well [his] awaiting removal. While results of the ethnicity as his inasmuch as Ladino [] checks, background petitioned Garcia is, soldiers,” as well as [that mixed-race] review in this court of the BIA’s decision government-affiliated paramilitary forces denying request asylum. his gangs, targeted village, “had his July On petition while Garcia’s comprised exclusively May- was almost court, pending was background individuals, indigenous for retaliation (cid:127) checks completed. point, were At that for the belief that these individuals were granted IJ of removal. aiding assisting way guerilla so, doing the IJ also that the stated IJ’s And, during movement the civil war.” decision, August 2015 oral which had found, upon IJ “based the evidence ... also request asy- denied Garcia’s to seek predominant that the Ladino element will lum, opinion would become the “official Mayan community not assist the in fight- this case.” elements,” ing off the Ladino outlaw thus that Garcia had shown “a reasonable order, Following July the IJ’s *8 likelihood of persecution harm petitioned this court for Garcia review. future these same elements.” also Garcia moved consolidate new-

But, seeking withholding ly in addition to petition pending filed for review with his removal, argued Garcia had also petition for review of the BIA’s December eligible IJ he was him ruling 2015 also barred from 18, asylum. 2016, and thus to receive the additional benefits seeking August On we

35 granted unopposed unambiguously Garcia’s motion to con- expressed intent of ” Chevron, petitions Congress.’ solidate his two for review. (quoting Id 467 U.S. 2778). 842-13, at 104 S.Ct. But if we “de- oral argument At before this court con Congress directly has not ad terminen cerning petitions, these consolidated issue,” dressed precise question at government agreed with Garcia that then we must move on to step the second order, July IJ’s 2016 had been is Chevron, analysis. 843, 467 U.S. at completion sued after the of the back 104 At step, S.Ct. 2778. this second “[we] checks, ground granted and which Garcia not simply impose do[] own [our] con withholding of removal but barred him statute, struction on the as would be nec applying asylum, from constituted a essary in the absence of an administrative jurisdiction. final order over which we have Rather, interpretation.” Id “if imple agree We also with Garcia on that point, menting agency’s construction is reason so, secure, jurisdiction our see Cano- able, requires Chevron a federal court to Saldarriaga Holder, (1st 25, 729 F.3d accept agency’s construction of the 2013), proceed Cir. we to the merits.6 statute.” Nat’l Cable & Telecomms. Ass’n Servs., 967, v. Brand X Internet 545 U.S. II. 980, 2688, 125 S.Ct. 162 L.Ed.2d 820 right Garcia’s Succar, (2005); (“If see also 394 F.3d at 23 1158(a)(1) § “questions under turns on im the statutory ambiguous, terms are then plicating agency’s ‘an construction of the principle of Chevron deference to the ” Vásquez statute which it administers.’ v. Attorney General’s choice must apply.”) Holder, (1st 2011) 563, 635 F.3d Cir. Aguirre-Aguirre, 424,

(quoting at U.S. A. 1439). “apply princi 119 S.Ct. thusWe Chevron, ples of deference described 1158(a)(1) § Garcia contends that USA, Inc. v. Natural Resources Defense unambiguously grants him the Coucil, Inc., 104 S.Ct. asylum. seek He argues thus that he wins (1984).” (quoting' 81 L.Ed.2d 694 Id. at step. Chevron’s first Aguirre-Aguirre, at U.S. S.Ct. In pressing argument, ac- 1439) (brackets omitted). knowledges provision that there is another ask ‘Congress away

‘We first whether of IIRIRA that could be read to take 1158(a)(1) directly spoken has precise question appears what otherwise ” Ashcroft, 1231(a)(5). at give: provision expressly issue.’ Succar v. That 2005) Chevron, (quoting 467 bars aliens to reinstated orders of 2778). so, courts, “If seeking “any removal from relief’ available agency, give chapter as well as the ‘must effect to under 12 of Title of8 the U.S. spends great may provide 6. The dissent deal of time removal order a basis for chal- developing arguments potential about a due lenging a reinstated order of removal has no process concerning violation Garcia’s initial bearing appeal. why on this That is no doubt bearing propriety removal and its on the process the due issue on which the dissent his reinstated order of removal. But Garcia is only focuses is not not “front center” in- arguing only to us that aliens who are sub- post briefing, Garcia’s but also not set ject to reinstated orders of removal seek developed argument forth as a at all about asylum, though they may even be barred only statutory issue that Garcia raises— Thus, seeking from other forms of relief. namely, light how to construe dissent's extended discussion of case law 1158(a)(1). §of concerning underlying whether flaws in an *9 36

Code, IIRI- dispute “irrespective does not that status.” [the alien’s] and Garcia added). § type (emphasis is a of relief that is available RA 604 Garcia con- 1231(a)(5). § chapter. change “any” that 8 U.S.C. that this from “an” to under tends Nevertheless, argues Garcia that clearly Congress shows that intended the 1158(a)(1) § unambiguously creates an ex- grant of the set broad seek 1231(a)(5) 1158(a)(1) § ception to the bar that other- §in precedence forth to take appears impose.7 1231(a)(5)’s wise § seemingly over contradicto- ry bar.8 making argument, can- Garcia does not—contend that not—and agree. gram- We do As matter of 1158(a)(1) actually repealed § the bar that mar, “any” clearly the word is not more 1231(a)(5) § appears to establish. Both Thus, sweeping than is the word “an.” provisions day were enacted on the same change wording need not be understood part as of the same statute: IIRIRA. Gar- Congress’s to reflect intention that, argues enacting cia IIRI- instead 1158(a)(1) § trumps bar RA, Congress changed what had been the 1231(a)(5) imposes. § otherwise We are 1158(a)(1). § relevant text of And Garcia that, also reluctant to conclude insofar as Congress argues that did so a manner “any” might thought be to be somewhat clearly reflected intention to carve “an,” than sweeping Congress more used 1231(a)(5) § exception out an for aliens stratagem subtle in- replacing one seeking asylum. sig- definite article with a different one to nal unambiguous its intent to make an that, points pre-IIRIRA, Garcia out 1158(a)(1) exception to an categorical otherwise bar § only referred to “an” alien Congress very forth day set same being asylum “irrespective entitled to seek provision very in a different same status.” Act of [the alien’s] Ltd., 1980, 96-212, 208, 102, statute. Barraford v. T & N § L. See 778 Pub. 94 Stat. (“It 2015) added). But, notes, F.3d 266 Cir. has been (emphasis 105 changed wording normally IIRIRA of the text. said statutes that one does not 1158(a)(1) “any elephants Section now hide (citing refers mouseholes.” Trucking Ass’ns, Inc., alien,” while keeping sweeping phrase Whitman v. Am. 531 1158(a)(1), argument regarding Adding argument, § 7. Garcia's 8. force to Garcia’s these 1231(a)(5) styled grants other forms of relief are as accepted, § if would not render Attorney provide discretion to the General to nullity. Chapter provides 12 for other forms of relief, categorical grant rather than as a of an relief, asylum: besides cancellation of remov- it, entitlement alien to seek as al, 1229b; pursuant voluntary § to 8 U.S.C. 1229b(a), styled. § Section removal, departure pursu- as an alternative to instance, provides: Attorney "The General 1229c; adjustment ant to 8 U.S.C. may cancel removal” under certain circum- status, See, e.g., pursuant to 8 U.S.C. added). Likewise, (emphasis stances. 1229c Fernandez-Vargas Gonzales, v. may provides: Attorney permit "The General n.9, n.10, L.Ed.2d voluntarily depart an alien the United (2006) (characterizing procedural these (em- expense....” States at the alien’s own Rodriguez "relief”); avenues as forms of v. added). phasis Finally, provides: § 1255 "The Gonzales, (2d 2006) 451 F.3d Cir. inspected status of an alien who was (characterizing cancellation of removal and paroled admitted or into the United States ... "relief”); adjustment of status as see also General, adjusted by Zambrano-Reyes Holder, regulations his discretion and under such (7th 2013) (characterizing a motion to may prescribe, lawfully he to that of an alien reopen proceedings (em- as a form of re- permanent admitted for residence....” lief). added). phasis *10 903, mirez-Mejia, 490, S.Ct. 149 L.Ed.2d 1 794 F.3d at does not superfluous 1158(a)(2), § render (2001))). asylum eligibility conditions on compliance addition, reading In Garcia’s requirements, certain see 8 U.S.C. 1158(a)(1) § necessary is not to ensure 1158(a)(2). § addition, asy limits on words—“any”—means that one of its what 1158(a)(2) lum eligibility § that expressly says. reading, Even on Garcia’s favored 1231(a)(5) forth § sets do not render re 1158(a)(1) §in “any” the word would not it, too, dundant if limits an right alien’s to 1158(a)(2) literally “any.” mean Section it- asylum. seek express Those limits in that types self makes clear certain 1158(a)(2) § do not concern the eligibility eligible asylum, aliens are not to to subject seek relief of aliens to reinstated 1158(a)(1) § though “any” even states that orders, 1231(a)(5) § while does. alien do so. See 8 U.S.C. 1158(a)(2).9 § course, Shifting Garcia contends that 1158(a)(1) § must be read unambiguously 1158(a)(1) § argue Garcia does 1231(a)(5), § to trump because the former to all exceptions should be read override to provision specific provision is the more its grant asylum except seek But, the two. as the Ninth Circuit has expressly for the ones that are in set forth noted, “difficulty” is that both But, § suggest- 1158 itself. even if Garcia’s 1158(a)(1) 1231(a)(5) § § and “specific one, reading possible a ed is we do not see respects certain general and in others.” why compelled. it is As the Fifth Circuit Perez-Guzman, 835 F.3d at 1075. It is thus considering rejecting observed and just alone, possible, as a matter of text very argument, Congress same has “many 1231(a)(5) say § imposes a specific schemes,” options revising statutory and 1158(a)(l)’s § general check on grant of “[ajdopting clear limitation one section eligibility for asylum say as it is to 1281(a)(5)] [i.e., § amending without anoth- 1158(a)(1) § specific carves out a ex- specifically er section dealing with the ception general bar to relief that [i.e., subject § same op- 1158] one such applies subject to aliené to reinstated re- Ramirez-Mejia Lynch, tion.” 794 F.3d moval orders. See id. at (noting 1075-76 (5th reh’g 2015), Cir. en banc 1158(a)(1) § specific is “more in that it denied, (5th 2016); 813 F.3d 240 Cir. see speaks narrowly governing to the rules Lynch, also Perez-Guzman v. 1231(a)(5) asylum applications,” § while (9th reh’g reh’g “is 2016), (No. specific speaks directly more in that it 13-70579, Apr. en banc denied 2017) (“In particular subset of ... individuals adopting changes both simulta- subject who are to reinstated removal or- neously, Congress effectively adopted ‘a ders”). clear limitation one section’— 1231(a)(5)—‘without § amending another argument Garcia’s final textual relies on dealing section’ with the same mat- 1158(a)(2)(D). provision permits That in- Ramirez-Mejia,

ter.” (quoting 794 F.3d at previously who dividuals have been denied 490)). asylum application file second Moreover, 1231(a)(5) reading they if can “either set demonstrate the exis- limit,” “statutory forth an changed additional Ra tence of circumstances which ma- Fonseca, argue phrase 9. Garcia does not that the “irre 480 U.S. at status”—which, spective of such alien’s unlike trumps pre-dates thus IIRIRA—in and of itself change "any,” from "an” to dates back to 1231(a)(5). Act, section 208 of the Cardoza- §§ eligibility ... conflict between terially affect *11 1158(a)(1), spe- former more because the is extraordinary relating to circumstances cific the latter and thus the former than delay filing application.” 8 U.S.C. the And, finally, precedence. must take the 1158(a)(2)(D). argues § that read- Garcia argues reading that its “re- government of 1231(a)(5) subject § aliens ing to bar asylum encompass comports lief’ to with applying orders from reinstated removal 1231(a)(5) § its conclusion that does not 1158(a)(2)(D). § asylum nullify would subject bar aliens to reinstated orders of point. But is mistaken on this having removal from their removal with- subject not to rein- Many aliens who are 1231(b)(3)(A). § pursuant to And that held may of removal benefit from stated orders ydth- because, contends, government the is 1158(a)(2)(D). result, 1231(a)(5), § § As of removal differs from holding 1158(a)(2)(D), § as it limits does insofar withholding provides of removal because provision nullity. that thereby not render “protection” rather than “relief.” Accord- (not- Perez-Guzman, F.3d at 1082 See ingly, government contends that “necessarily” the ing that it is not ease clearly compel interpretation statutes “any individual to whom that regulations, reflected in which aliens 1158(a)(2)(D) subject ... applies § will be subject of reinstated orders removal order”). to a reinstated removal may may not but complex statutory In light withholding entitled removal. 1158(a)(1) scheme, § say we cannot that agreed A number circuits have unambiguously grants right Garcia the government. They have held that reject asylum, we contention seek his 1231(a)(5) subject § clearly does bar aliens step. he wins at Chevron’s first from to reinstated orders seek 1158(a)(1). § ing asylum, notwithstanding B. Att’y Gen., See Jimenez-Morales v. U.S. (11th 2016); Ra statutory provi- the relevant Because mirez-Mejia, But, 794 F.3d at 489-90. there clearly compel do not Garcia’s read- sions at the a surface between is least tension ordinarily move on from ing, we 1231(a)(5) § provisions—with two step first to see Chevron’s whether Garcia subject seemingly to rein barring aliens step could win at two of the Chevron anal- seeking asy orders of removal from stated however, ysis. government argues, The seemingly conferring lum and that we not do so because the rele- (save upon expressly alien for those IIRIRA, read, provisions properly vant provision) mentioned clearly bar aliens reinstated or- And, asylum. seek as the Ninth Circuit has seeking asylum. ders of removal from The conflict, noted, provisions insofar as these government argues only thus that Gar- another, with one it is no means clear step cia loses at one of Chevron but also specific which is the more of the two. See government that the at that same prevails Perez-Guzman, 835 F.3d at 1075-76. step. Thus, government than arguing, deciding so contends rather the case “asylum” plainly government step a form of “relief’ for the one of Chev 1231(a)(5)’s applies. to which bar ron—an issue on which we take no view— government proceed step.10 further contends there is no we to Chevron’s second At that, case, agency cannot 10. Garcia contends in this benefit from deference at 1231(a)(5)—to asy- refer to word in both agency’s two, accept must we step removal.11 thus lum and We to resolve an as to how choice regulatory the basis for Garcia’s conten- agency understand in a statute ambiguity agency’s regulatory that the choice is ambigui- tion putative administers—such arbitrary permits aliens to ob- identi- because we have by the tension ty presented chapter of “relief’ under type tain one is a reasonable choice it makes fied—if the not an- 12—withholding of removal—but Home Builders v. Nat’l Ass’n of one. See Wildlife, 666-67, the relevant other—asylum—even though Defs. *12 1231(a)(5), (2007) § bars 2518, statutory provision, L.Ed.2d 467 168 subject to orders of re- aliens reinstated to “mediate deference (applying Chevron chapter “relief’ 12 seeking from the at moval seemingly categorical—and, clash of that the argues therefore irreconcilable—legislative affords. Garcia glance, first one in commands”). only interpretation coherent that the is conclude we And withholding of agency the affords that we which in this case is one choice agency’s asylum. the treatment as regula- removal same agency’s the accept, because must aliens sub- agency permits the statu- And since the various reasonably balance tions to of removal be ject a new to reinstated orders by “establishing] tory provisions former, the Garcia contends eligible for identify and process rapidly to screening permitted ap- to that such aliens must be withholding of re- claims for assess both 1231(b)(3)] latter, for too. protec- ply for under [§ moval unduly ... without the [CAT] tion under argument is problem The with Garcia’s pro- removal the disrupting streamlined question relevant Chevron’s that the subject to rein- to” aliens applicable cesses possible it to not whether is step second is Regulations Con- orders. removal stated asylum withholding both characterize Torture, Against cerning the Convention “relief,” such that as forms of of removal Reg, at 64 Fed. 8479. subject to then would each 1231(a)(5)’s or neither statutory § bar conclusion, recog- we reaching is out, question instead that be. The relevant correctly nize, points as Garcia distinguish it is unreasonable BIA, times whether courts, and DHS have at withholding of remov- key is the between “relief’—which used the word See, e.g., Aguirre-Aguirre, agency did step because the second Chevron's 11. laws, scheme,, ("Under immigration statutory but in- interpret S.Ct. 1439 119 not interpretation is asylum, although [its] that withholding "believe[d] stead is from distinct no compelled by Congress.” Garcia offers pur- serve similar forms of relief the two proposition, and find support for this Lynch, we F.3d poses.”); Hinds v. agency's statements. See own none' in Perez-Guzman, 2015) (1st petition- (commenting that Cir. ("The at 1079 n.8 835 F.3d withholding, or other sought “asylum, er no suggest history does not ... administrative López- Judge”); Immigration relief from 1231(a)(5) compelling agency § as saw Holder, Castro asy- particular approach to regulation's the lum, 2009) ("This particular relief brings us protec- withholding or CAT of removal withholding of sought instant case: in the explana- contrary, agency's tion. On the L-A-C-, removal.”); 26 I. & N. Dec. Matter crafting expertise by applied shows it its tion 2015) ("[A]n (BIA applicant who balancing screening process and expedited withholding has of removal asylum or seeks relief from of claims for the fair resolution demonstrating eligibility for the burden of provide against Congress’ desire removal relief....”). such of certain classes streamlined removal individuals, including subject to rein- those orders.”). stated removal And, applying 1231(b)(3)(A), 1158(a)(1), § al for bar. purposes ample, § that unlike Perez-Guzman, view, not by expressly is not. does its purport our See terms 1231(a)(5) permit § an alien “it is to do what (holding F.3d at 1081 not appears expressly to “apply forbid: for ... Congress conclude unreasonable to intend- Rather, chapter relief’ under ed to ... persons bar reinstated remov- 1231(b)(3)(A) styled as on limitation al proceedings applying asylum] [from authority. General’s removal is, while preserving withholding [that relief provision, That ap- unlike thus of removal] for individuals able to meet the pears simply to guarantee' that an alien higher withholding standards remov- CAT, persecution facing torture will receive relief’). al and protection from being returned to the For one thing, distinction that the home country.12 alien’s government posits defending regula- agency’s asylum, choice treat but tions, such is a form of “relief’ removal, withholding bars while applying bar for “relief’ set forth “protection” is a form of *13 1231(a)(5) § comports also with the rele- 1231(a)(5) reach, § by not does its terms legislative vant history, even if it not reasonably ways tracks the distinct in compelled by By reading it. “relief’ to Supreme the Court has described encompass asylum, agency’s the regula- asylum in and of removal con- give Congress’s effect tions clear inten- struing the un- obligations United States’ tion, 1231(a)(5), enacting § in to “strength- der Protocol. noted at As we en the provision reinstatement outset, that, the Court has explained operate efficiently.” make more Lattab Refugee Protocol, under the “those who Ashcroft, 8, (1st 2004). v. 384 19 F.3d Cir. can show a probability persecution clear of by IIRIRA did so “enlarging] the of class are mandatory entitled to suspension of illegal reentrants whose orders be deportation only ... while those can who possible reinstated and limiting] relief show a fear persecution well-founded of from a removal order available to them.” eligi- are not to anything, entitled but Fernandez-Vargas Gonzales, 548 U.S. discretionary ble for the asylum.” relief of 30, 33, 2422, 126 S.Ct. 165 L.Ed.2d 323 Cardoza-Fonseca, 444, 480 U.S. at 107 (2006).But, the legislative history does Thus, S.Ct. (emphases in original). show that Congress intended withholding of removal has been un- long 1231(a)(5) § to be all-encompassing bar mandatory derstood to protection be a that ability subject on the of aliens to reinstat- aliens, must given qualifying be to certain ed removal orders to in remain the United asylum while has never under- been so (1996) 104-249, States. See S. Rep. stood. that, (emphasizing although “[a]liens who The text of the provisions relevant of U.S. immigration violate law re- should be IIRIRA provides further support for dis- country from moved this as soon as possi- tinguishing between ble,” subject that broad aim was to “[e]x- withhold: ing of removal in construing scope of ceptions ... specified the statute and 1231(a)(5) the bar that imposes. General”); For ex- approved Attorney H.R. moreover, 1231(b)(3)(A) respect, this removing from an alien if that alien satisfies 12. significantly criteria, above, grants differs statutory from each as we noted §§ n 1229b, 1229c, permit relief Congress provid- other than that and 1255 the Attor- chapter ed for ney While Section General to undertake certain actions as prohibits 1231(b)(3)(A) Attorney General matter discretion. (1996) 104-469, construing pt. (noting any lingering ambiguities at 107-08 de Rep. alien”); portation in favor of aliens who en- statutes although “[r]emoval Cyr, 289, 320, ... INS v. St. 533 U.S. illegally is an all- ter the United States (same) (2001) event,” S.Ct. 150 L.Ed.2d 347 that “[r]elief too-rare therefore Cardoza-Fonseca, (quoting 480 U.S. at strictly more lim- deportation from will be Fong Phelan, 1207); 107 S.Ct. Haw Tan v. ited,” new aliens “stream- L.Ed. 433 appeal process” and removal now laid lined (1948) (applying lenity the rule of “because §in could nevertheless “es- out deportation is a drastic measure and at ... are entitled to they tablish be times the equivalent o[r] banishment in the admitted or remain United exile”). States”). Thus, say we cannot agency unreasonably choosing acted But, if rule lenity might even the that the same aliens who could not ensure case, be relevant to we have stated protected asylum still seek it “cannot contravene from withholding of removal suf-

through im interpretation” BIA’s reasonable of an in their fering or torture home persecution migration where the agency statute makes 1231(b)(3)(A)’s country, in accord with “ordinary principles statutory use of General to clear directive Holder, interpretation.” Soto-Hernandez v. vital and long-understood-to-be afford that 2013). And Garcia mandatory protection. why, notwithstanding does not our explain ruling seeming Soto-Hernandez and III. un agency’s reasonableness of the choice *14 of statutory der traditional tools construc arguments makes additional Garcia two tion, lenity the rule of should control here. win, why as he each of which to should canon of longstanding relies on a construc- Second, that, argues for over two Garcia But, view, argument in our neither tion. years, hundred has been a canon persuasive. statutory as the construction—known Charming Betsy a statute canon—that

First, the argues Garcia that rule of “ought violate the never to be construed to applied that has been in the immi lenity any if other con possible law nations gration requires context us to resolve Murray struction remains.” v. Schooner favor, statutory ambiguity in his notwith (2 Cranch) Charming Betsy, 6 U.S. that the choice standing agency’s might (1804). Yet, contends, 2 L.Ed. 208 Garcia be to be a reasonable otherwise considered statutory agency’s interpretation the of the however, clear, not at all that the one. It is subject aliens to rein scheme—by denying lenity, which “favors construction of rule of removal to seek stated orders of the light laws in the most immigration favor asylum—would violate certain of the Unit the alien” as that only able to insofar alien Refugee obligations ed States’ under the deporta “drastic consequences risks the Convention, to which United States Holder, tion,” Lumataw Refugee acceded via the Protocol. 2009), precise on the inter bears all, that the pretive question particular, we face. After In Garcia contends that conflicts Article 34 question type agency’s reading that of “relief’ concerns Refugee alien has 28 of the Convention. that an whose removal been Article that, may argues insofar as Accordingly, withheld obtain. See also Cardoza- Garcia Fonseca, ambiguity there is an as to whether U.S. at S.Ct. 1158(a)(1) to principle exception § a carve out an (identifying “longstanding does 1231(a)(5), § ambiguity must be at precludes re- a con- in a manner that solved avoids conflicts tracting State from imposing a limitation Refugee alleges with the that he Protocol eligibility on the of an alien to seek 1158(a)(1) § result if were not would con- such as the limited one that agency has exception. strued create such an 1231(a)(5) Thus, imposes. concluded Gar- requires cia fails show how Article 34 response, government con Charming Betsy that we canon only Refugee tends that the Protocol is not the relevant provisions read to exclude Charming self-executing and thus that the 1231(a)(5)’s “asylum” from bar. Betsy apply. canon does not But we do not that argument persuasive. find Garcia does turn We now to Article pro- seek to rights arising enforce under vides Contracting “[t]he States shall Refugee and, by extension, Protocol refugees lawfully issue staying their Refugee Rather, Convention. he con territory travel purpose documents for the Charming Betsy that, tends under the can of travel outside their territory, unless on, rights the existence of these must be compelling security reasons of national guide as a to construing statutory used public require.” order otherwise 19 U.S.T. at provisions give issue so as to effect to added). (emphasis at 6274 points Congress’s intent honor United granted asylum out aliens may obtain obligations States’ under international law. a permitting travel document to trav- them result, why As we do not the non- see internationally. contrast, By el aliens self-executing Refugee status of the Proto granted withholding not. Charming Betsy col bears on the canon’s that, long Garcia thus contends so Stevic, potential application. Cf. is read to bar aliens 425-26, (looking 104 S.Ct. 2489 seeking reinstated orders of removal from Refugee Protocol to interpret statutory asylum, conflict with the Proto- “refugee” definition term and noting contends, And, col arises. accordingly, he Congress “intended that definition Charming Betsy that the canon must be consistently construed with the deployed to avoid that conflict. Cardoza-Fonseca, Protocol”); *15 432-33,107 (same). S.Ct. 1207 But, though even there in dispute is no

Nevertheless, fails to qualifies Garcia show this case that Garcia as a “refu- regulations that the the 1101(a)(42)(A), create kind of gee” 8 U.S.C. under and conflict international can law the correspondingly, under the Con- on instructs us to if possible. avoid Accord Cardoza-Fonseca, vention, see U.S. at Charming ingly, we do not see how the 436-37, the fact is that Betsy canon helps him. recognizes may Article 28 that exceptions from its requirements be made “com- for start

We with Garcia’s on reliance the of pelling security pub- reasons national conflict that he arise in contends would lic governmental order.” The interest ad- consequence 34, which, of Article as we government’s the reading vanced of seen, provides have Contracting “[t]he possible 1231(a)(5)—deterring repeated unlawful States shall as far as facilitate the entry country—would this appear into assimilation and of naturalization refu- added). such a gees.” “compelling constitute of reason[ ] U.S.T. 6276 (emphasis however, And, public Garcia makes no ... order.” no argument, Garcia makes support Thus, Ms “precato- argument contrary. contention that this to the we have Cardoza-Fonseca, ry” language, 480 U.S. no for concluding basis that Article 28 Charming through the Bet- it as such his pre- the use of ordained own necessitates statutory interpretation canon.13 ferred under sy Chevron, construing the reinstatement IV. INA, § 1281(a)(5), of the statute 8 U.S.C. alien reasons, which states that an to a foregoing petitions For the the order eligible reinstated of removal “is not denied. any relief,” not STAHL, Judge, dissenting.' Circuit the trumping grant broad of in 8 1158(a)(1), provides which U.S.C. Garcia, a member Victor Garcia who “[a]ny physically present alien is in communi- indigenous Maya of Guatemala’s who the United States or arrives in the in a on a ty, up large was raid scooped ... irrespective United States of such Bedford, Massachusetts, factory in New status, may apply alien’s in to a detention center away whisked border accordance with this section.” Because ad- later, and, days following in Texas several law, baseball, ministrative like has its own Immigration an group hearing a before default rule cases like goes this—tie from the United Judge, ordered removed agency—in my majority view me- During proceedings, these Garcia States. rule, chanically applies that default ignor- attorney, an nor was did not have access to ing the fact that was due (an denied him interpreter made available to in his process proceedings initial removal interpreter certainly have come would failing degree address to which handy group hearing was con- because agency’s interpretation violates the language that Garcia Spanish, ducted letter, if not spirit, various U.S. understand). Returned does obligations. treaty life of Guatemala that persecution same refuge him in the first had led to seek here majority’s interpretation Because reentered States place, Garcia United put the States United violation sought asylum. law, international and countenance the fla- Today, majority grant process that Garcia due violations occurred holds below, having interpretation I would asylum, despite cannot find showing ambiguous provisions of like- relevant higher made threshold Charming under the ly required harm that for an alien INA unreasonable Betsy doctrine, grant counsels that “an acquire temporary so, Congress ought never to con- majority postu- of removal. This is Act of lates, has to violate the law of nations if because the General strued and, provi- accordingly, hold- 13. relies on a usual rules waiver dissent number *16 Garcia arguments actually sions of the Convention that ing Garcia to the that he Holder, provisions the of never mentions. As for two develop, see Ahmed v. does address, the the that Garcia does Convention 2010) (“[A]ppellate arguments dissent address the that Garcia does not fact manner, perfunctory a advanced in unaccom- argument developed regarding no the makes by authority, panied citations to relevant Thus, exceptions they contain. the dissent waived.”), impermissibly we do not deemed fact that offers no does address the Garcia government ex- relieve the of burden of argument why government’s the evident Betsy Charming planation that the canon deterring entry interest in must be unlawful impose. simply We that ensure we do not with not- understood to conflict Article arguments decide the case based on about the withstanding "public exception, or its order” meaning law that of international were never 34, notwithstanding pos- Article its far as "as testing. subjected adversary Moreover, following our sible” limitation. in construction remains.” Mur See possible Report, other Historical Clarification Con- ¶¶ Charming Betsy, ray (2 110,122. clusions Schooner (1804). Cranch) 2 L.Ed. 208 Since Against backdrop, that historical Garcia play that beyond doubt courts cru put following allegations. forth the factual ensuring cial that the United role States child, family As a Garcia and his were complies treaty obligations, its bar frequently into forced to flee the moun- ring Congressional clear indicia of some army sweeps tains when the conducted statute, a,treaty intent to violate via and village—sweeps his that often resulted majority’s approach because contra summary beatings executions and obligations venes our under international those to escape. unable Garcia resisted the process law due protections and the Ladinos’ efforts to draft him into them litigants rightly expect Garcia like should patrols, endured at one beating and least system, respectfully from our I court dis militia, at the of the who hands insulted sent. epithets. him with racial being caught Far from simply up in the Background I. Facts & widespread plaguing violence and unrest (or majority glosses Because the over time, country the record indi- ignores .completely) portions significant family cates that Garcia’s was record, including the factual facts that particular they ill-treatment because Charming Betsy directly bear on Garcia’s indigenous community were leaders argument, I set forth below salient Church, and in the local Catholic and be- I explaining why facts before believe the following cause conclusion Civil legal majority result reaches is War, they began a long campaign to seek incorrect. justice for Garcia’s father and other indig-

enous disappeared civilians were Background in A. Garcia’s Guatemala were during executed the war. Ladino Garcia, groups against armed retaliated on ais member of Guatemala’s in- one him beating attacking occasion and Mayan digenous community, grew up incident, him with a knife. After this Gar- speaking indigenous language, K’iche. cia to walk days. was unable for 15 Maya have often at the suffered hands elite, ruling up primarily made against worsened, As the threats him Garcia, community. fearing life, mixed-race Ladino During for his fled Guatemala War, in early join Guatemalan Civil the national hoping to one of his army citizen-patrols, and local La“dino par- living brothers was then who New Bed- ford, organizations amilitary operated There, Garcia lived an under- systematic with impunity, ground community conducted a mil- Mayans of other who itary campaign against Maya. Guatemala, joined The His- had fled prayer group Commission, church, torical Clarification estab- a local Catholic and became Accords, lished the 1996 Peace indigenous organization. found active in a local that racial and ethnic animus constituted He never in the applied United atrocities, time, the reason these during attacks States period and that the Guatemalan State had “com- counsel *17 suggests for Garcia this was of genocide mitted acts against groups of because he remained from traumatized Mayan in people” regions, four in including spoke only events Guatemala and mini- region Quiche. Garcia’s Zacualpa, Spanish home mal no English.14 Proceedings including in ing, rights Spanish, his Initial Removal B. any adverse decision. The right appeal to Garcia detained Immigration authorities Judge explained also that the Immigration factory a raid on the during in March a counsel at that respondent right had to Massachusetts, Bedford, at which in New filed a motion reconsid- hearing.” Garcia clandestinely employed. had been Garcia decision, BIA’s which was denied. er the holding days temporary at a After two point during appeals At these various no opportunity facility, and without BIA address the fact that Garcia did the trans- attorney, Garcia was an consult with Spanish. Garcia was then speak did not facility in southern to a detention ferred removed to Guatemala. 21, 2007, group in a

Texas. On March Approach Majority’s The C. Court Immigration a Texas hearing before Spanish, in conducted proceedings with majority opinion alludes to these The a removal order entered accepted underlying Garcia in the re- procedural defects right gives reserve his them short proceedings, him and did not moval but against is less than shrift: Although the record appeal. appears it that Garcia point, later, on this immigration clear in years Three during attorney appre- an in States had access to authorities the United neither Garcia, him, and then hended detained there a K’iche nor was proceeding, country. him removed from this ordered interpreter available. reveals, ap- it all that the record From hearing in However, shortly after this suc- would have been pears Garcia to Tex- attorneys traveled group asylum had he obtaining cessful K’iche-speaking aof as with the assistance And, appears, sought it at time. and other and met with Garcia interpreter to with- too, may have been entitled he meeting, the at- Following this detainees. But, not re- he did holding of removal. behalf, re- sought to torneys, on Garcia’s withholding of asylum either quest arguing that his waiver the lan- appeal, removal, because of open apparently and because he right and his he faced guage barriers right his . at 33. uncounseled. See ante was he was were coercive because appeal .rights during process due denied his majority passage in this concedes including proceedings, of the initial course likely “suc- have been that Garcia would attorney. opinion In an to an time of asylum” at the obtaining cessful rejected BIA August dated but did not proceedings, initial his Im- finding that he argument, “[t]he to .do so because opportunity Garcia’s have an respon- lawyer and be- explained to the access to a migration Judge did not have language in speak cause he did dent, group at the hear- along others provided him with in K’iche and his answers replete with evidence that 14. The record provided government also interpreter. The legal proceed- comprehend could not Garcia during the interpreter with a K’iche Garcia ings Spanish. application for On his Immigration the Boston proceedings before of the form on the section One won- Judge of removal. speaks, languages applicant asked what between (not what the Government learned fluently).” ders “Spanish At his wrote conclude, led it to and 2015 which May hearing asylum officer in before an instance, required a that Garcia the latter designed whether proceeding to determine interpreter to have the so as benefit being K’iche removed had a reasonable fear he Guatemala, process. give due instructed Garcia officials *18 again, organize were proceedings which the conducted. We Once his efforts surmise, argued can his counsel before indigenous community through leadership in Judge pro- the 2015 Immigration in local his church were not met with what ceedings, that Garcia had no idea was part enthusiasm on the gang Ladino hearing en going leaders, on at this masse many directly of whom retaliated By center.15 time border detention against The family. frequency Garcia’s in meet attorneys arrived Texas to by groups harassment the militia increased similarly indige- Garcia and other situated until, on February Garcia and his late, it was too persons, nous because he join son decided to flee and Guatemala already had ordered removed and been family previously members who had been appeal. waived his granted and resided New Bed- Garcia’s ford. wife and seven children re- he Garcia would later contend that never n Guatemala, main and have informed meaningful opportunity apply had a for Garcia it is not to return. safe asylum during these but to no proceedings, ruling disposed avail. BIA The Proceedings E. Below Administrative sentence, argument this in a single con- cluding “[tjhough applicant as- apprehended border, DHS Garcia serts he process was accorded due subsequently him allowed to travel to prior proceed- the course of his receiving Massachusetts. After notice that ings, Judge Immigration this previous his removal order would be rein- authority Board do not have to review stated, given Garcia was a reasonable fear proceedings.” majority opinion those The May interview officer on view, despite, panel, my having 2015, which was conducted with the assis- authority such to review underlying aof K’iche-speaking interpreter. tance topic removal order—a to which I will turn asylum officer found that Garcia had a shortly—devotes only the aforementioned fear of if persecution reasonable he were process four sentences obvious due Guatemala, returned to and allowed him to defects in underlying Garcia’s removal or- for withholding of removal. At his der. hearing before the Immigration Boston Court, again with the assistance of an in-

D. Return' to Guatemala and Subse- terpreter, argued that in addition to quent Reentry applying removal, he Things improve did not permitted Garcia after asylum, should he gangs returned to Guatemala. Ladino and that the automatic reinstatement of Garcia, frequently harassed least on at one his prior removal order would violate U.S. shooting occasion at him while he rode his obligations under the 1967 Proto- bicycle, him forcing to flee into the woods. col.16 Q:

15. Garcia himself you confirmed as much at his What you have denied been since speak Spanish? hearing asy- fear don’t reasonable before an people I don’t (this A: understand when talk to lum officer time with the benefit of just I quiet me so remain because I don’t interpreter): K’iche understand. Q: you anything Have ever been denied Relating 16. Protocol to the Status of Refu- any rights you Mayan?' because (Nov. 1968). gees, 19 U.S.T. 6223 Because things A: Yes a lot have been denied for required accession to the Protocol that the speak Spanish me since I don’t I didn’t comply United States with all substantive as- go to school. pects of the 1951 United Nations Convention

47 a credible F. Current found Garcia to be Garcia’s Status The IJ n witness ruled that had established he began sojourn through Thus Garcia’s the of as well as a likelihood past persecution legal today, limbo that the majority, sug- granted He persecution. future therefore very position gests Congress is where withholding for of re- application Garcia’s him. Having granted would want been However, the consider did not moval. IJ removal, withholding only of secu- Garcia’s (as claim, asylum concluding Garcia’s that he rity is cannot be sent back to does) majority ineligible that was to he however, position, His actual Guatemala. asylum under the INA because apply for grant A precarious. withholding more of previous of the removal order. Additional- prevent does not to a removal his transfer (with rejected accompanying the' IJ no ly, 1208.16(f). country. third See C.F.R. argument reading that a analysis) Garcia’s therefore lives a of possi- He under cloud statutory bar language to relocation, ble and should the government the Refu- claims would be tension with transfer, to such a he would decide effect that opinion, same the IJ gee Protocol. in the say Additionally, have no matter. argument that he had not rejected Garcia’s granted withholding aliens while remov- meaningful op- previously been afforded eligible apply permits, apply asylum, citing for al are for work portunity employment BIA decision which had found docu- that these authorization “rights [explained in] had his granted Garcia are ments the discretion Spanish.” granted and are in increments. See USCIS 274a.l2(a)(10). Such aliens must C.F.R. BIA. In a two- appealed

Garcia it ex- reapply for document before order, ap- the BIA denied Garcia’s page pires, encountering long processing often section concluded that peal, “[n]either delays, legally cannot work unless and implementing of the Act nor its until the authorization document is re- applicant authorize the to be regulations Furthermore, Id. individuals newed.17 asylum.” Although for considered eligi- withholding of removal status are BIA that he argument his to the renewed necessary travel for ble for documents opportunity to previously had not had the for- reentry into United States after procedural because travel, while who have been eign aliens proceedings, his 2007 defects of may ob- granted asylum refugee status BIA it lacked “authori- concluded that documents.18 ty proceedings.” to review those tain such asylees may by Relating Refugees, noting employed virtue Status of document, 28, 1951), (July employment I will refer to "an authorization U.N.T.S. 150 alien,” “Refugee by USCIS to with no re- or the "Conven- issued Convention’’ document, they describing quirement when international law for this tion” 12(a)(5). obligations regime. clear treaty under this id. 274a. While it is not permit to whether the issuance of the work contrast, granted asylum, By aliens part asylees obligatory is therefore on the stipulate expiration regulations "[a]n USCIS, obvious that at minimum it seems employment docu- date on the authorization encounter aliens of removal only USCIS that the ment issued reflects procedural hurdles in order additional renewed, must be and not that the document legally. work expired.” See bearer's work authorization has generally 1-131, 12(a)(5). Applica- Additionally, asylees USCIS § 274a. 18. See Form 8 C.F.R. (rev. exempt who Travel Document Instructions from the classes of aliens tion for 13, 2016), http://www.uscis. permit, apply” to USCIS for a work id. Dec. available "must 12(a), (noting regulations obliquely gov/files/form/i-13linstr.pdf § 274a. with the Adding injury, insult to withholding of apparently ment recognizes absurdity removal carries with it options no of denying to the try alien the bringing family members to the bring United family his to the United States be- *20 States, while an granted asylum alien higher can cause he has met the threshold apply for asylum derivative status for his required for withholding removal, spouse and minor children. See Burbiene opposed to the lesser showing that is re- Holder, 568 F.3d 256 n.5 Cir. quired for the discretionary grant of asy- 2009) (noting that “there can be no deriva- lum.19 requirement Hence the that gov- the tive grant beneficiaries of a withholding reopen ernment asylum the claim in that removal”). Indeed, regulations DHS re- situation. quire that an alien who has been denied Garcia is essentially overqualified for the status, asylum granted but withholding of relief that he seeks: he falls into the “nar- removal, must have asylum his or her ap- rower class of given aliens who are a statu- plication reconsidered. See 8 C.F.R. tory right not deported to be to the coun- 1208.16(e) (“In the event that an appli- try they where are in danger,” but misses cant asylum is denied solely in the exercise out on membership in the “broad class of discretion, applicant and the is subse- refugees who are eligible for a discretion- quently granted withholding of deportation ary grant of asylum,” all because he was section, or removal under this thereby ef- initially removed from the country without fectively precluding admission of the appli- Cardoza-Fonseca, process. due spouse cant’s or minor following children 424, 107 S.Ct. 1207. Yet had he been af- join her, him or asylum denial of forded a modicum of process and then had reconsidered.”) shall be asylum his application denied, govern- Just consider that if Garcia had access obligated ment would be to reopen that to an attorney, legal benefit of pro- asylum application if he was subsequently ceedings in a language understood, he or granted withholding of removal. just even interpreter, during his initial removal,

detention and Today he could have then we are told majority applied for asylum withholding of re- interpretation General’s moval concurrently. If government INA, had the produces the absurd and denied application his asylum, but later counterintuitive result that I just have out- granted removal, withholding of gov- lined, is reasonable permis- because it is a compelled ernment would be to reconsider sible construction of a statutory ambiguity. his application by virtue of the fact This is though so even a separate provision that withholding of removal “pre- alone of the INA provides that “any alien who is clude[s] admission of applicant’s physically present in the United States or spouse or minor children.” Id. govern- who arrives in the United States ... irre- “Reentry permanent them, Permit allows a lawful against entered they do not have either permanent resident or conditional Refugee resident Asylee or may status and thus not apply for upon admission to the United reentry permit. States for the returning from abroad” and that “[a] Travel Document is issued to an individual in notes, majority 19. As the clear-probability status, refugee asylee valid or or to a lawful withholding test for of removal "is more de-

permanent resident who obtained such status manding than the 'well-founded fear’ test” refugee States.”). as a asylee in the United applies (citing cases. Ante at 32 granted Cardoza-Fonseca, Because aliens of remov- INS v. 449- al technically status still have a removal order (1987)). 107 S.Ct. 94 L.Ed.2d 434 status, spective instance, alien’s For in Herrera-Molina v. of such Hold 1158(a)(1) asylum.” (empha- er, 8 U.S.C. rejected the peti Second Circuit added). Mark Even under Twain’s sis argument tioner’s that Section pessimistic Congres- assessments more “deprives him while process,” of due not agree I cannot that the sagacity,20 sional ing that “Herrera-Molina does not allege majority today reaches is one result any impropriety” underlying in the remov Congress would desire. argue al proceedings and “does earlier proceedings deprived those him of II. Considerations Due Process (2d process.” due 139-40 I Before to what proceeding believe 2010). petitioner Because did not raise *21 majority’s reasoning, the main in the flaw argument, court “not the did consider adequately the to consider the failure jurisdiction whether would have [it] to re Charming Betsy question and the tension legal challenges view or constitutional interpretation in this agency’s between the validity the underlying deportation of that commitments, I treaty case and want Id. at order.” 140 n.9. contrary briefly why holding is explain with cir- necessarily not inconsistent other Lynch, In Perez-Guzman v. the Ninth in favor of rein- cuits that have held the petitioner noted the had Circuit “testi- cases, why in similar statement statute fied before that the Border the IJ Patrol jurisdiction I believe have to look that we him agents never asked whether he feared underlying behind the removal order and Guatemala,” returning but also conclud- due process to examine whether Garcia’s “[rjecords ed that of a interview brief con- rights were violated. during expedited pro- ducted the removal cess, however, Perez answered note in the Interpreting A. Other Cases This Stat- negative asked whether he when feared utory Interplay returning Guatemala.” majority quite While is correct that (9th reh’g reh’g 2016), 1070-71 en have other circuits that encountered this (No. 13-70579, 26, 2017). Apr. banc denied statutory in tension have sided favor of in nothing There is Perez-Guzman that bar, cases, these none of as reinstatement speak not suggests petitioner did discern, petitioners I far as can involved in language proceedings were proceedings in- whose initial removal were contrast, has By conducted. Garcia testi- procedural irregularities fected with the fied that he never asked whether he was Furthermore, which occurred here. some returning feared to Guatemala.21 Of process the due of these courts noted ten- course, may Span- he have been asked .applying sions when reinstatement ish, I to see how this much struggle but mechanically, inap- statute but found them than at all. plicable being to the eases at hand. better not asked Case, Twain, interpreter): I (through 20. See an did not Mark Foster's N.Y. Trib une, (“To my they anything did Mar. mind Judas tell them because not ask low, mean, premature nothing any questions was afraid. but Con me whether I was That's gressman.”) anything. why I didn’t tell them honor, Counsel for Garcia: Your record, they go- what you didn't understand was Immigration Judge: When were in 21. The Judge ing We to Texas. Federal Immigration why on. went down front Judge everybody. you your sent We talked didn't tell him of fear of these Ladi- us down. going gangs? They didn't what was on. no understand Furthermore, case, in that same set of those comparable undergird- facts to Ninth noted that Circuit appeal “[t]he ing they Garcia’s at the time that interpretation §of General’s statutory answered this same riddle. Nor consequences have dire humanitarian any of did them address the tension be- who individuals reinstatement seek interpretation the agency’s tween ... they relief from were because law, an INA international issue of first improperly opportunity to seek denied impression our circuit.23For these rea- their during earlier removal from sons, I opinions do not persua- find these Perez-Guzman, the United States.” 835 sive. rejoinder The F.3d Ninth Circuit’s point,

to this that “the government has The Court’s B. Jurisdiction Examine forgo in- discretion to reinstatement and Underlying Removal Orders place ordinary stead an individual re- id., moval proceedings,” would seem to be procedural in the defects 2007 re- who, Garcia, cold comfort to aliens like are, proceedings admittedly, moval not so fortunate as to be showered front and center in petitioner’s presen- government’s magnanimity.22 focuses, of his tation case.24 He like the does, short, circuits, majority statutory none of our on interplay sister *22 gather, far as I can have encountered a the between and reinstatement of 22. satisfy obligations The recent Fifth and Circuit Eleventh sufficient to under the interpreting cursory cases this issue included Protocol. underlying pro- treatments of the removal ceedings, which makes it to discern difficult disagree majority's 24.I with the contention proceedings whether the in those cases violat- process that because the due issue was "not process protections ed the due basic of the argument,” developed set forth as a these petitioners ain similar fashion Garcia. See bearing have appeal.” concerns "no on this Ramirez-Mejia Lynch, 485, v. 794 F.3d 487 Ante, at Appel 35 n.6. While Federal Rule of (“Ramirez-Mejia I”) (5th 2015) (noting Cir. 28(a) generally requires late Procedure that only petitioner apprehended that the "was parties develop arguments in some detail in illegally entering while the United States” and having their briefs or risk them be deemed subsequently "was the removed from coun- waived, Holder, 90, see Ahmed v. 611 F.3d 98 Atty. Gen., try”); Jimenez-Morales v. U.S. 821 2010), principle “prudential Cir. is a this 1307, (11th 2016) (explain- F.3d Cir. 1307-08 requires that construct the exercise of discre that, ing having "after been removed to Co- Miranda, tion,” 434, (5th U.S. v. F.3d 248 443 lombia,” petitioner again tried to enter the 2001), and Cir. some courts have determined authorization). United without States they "have discretion to consider issues briefs, 'particularly not raised in the where banc, rehearing In a denial for short en public substantial Ramirez-Mejia interests involved.’” pass Fifth Circuit in noted Hatley Lockhart, 1070, (8th v. 990 F.2d 1073 ing treaty obligation no “we find in con 1993) (quoting Cir. Ins. Continental Cos. v. holding” flict with our 34 because Article Co., Inc., 977, Ne. Pharm. & Chem. 842 F.2d Refugee "precatory” pro Convention is a (8th denied, Cir.), 821, Cardoza-Fonseca, cert. 488 U.S. (citing vision 480 U.S. 66, (1988)). Here, 441, 1207) S.Ct. 102 L.Ed.2d 43 Gar Congress and left intact process brief cia’s raises the lack of due af removal proceed protection forded him in his initial removal Against and under the Convention (CAT) ings, and even develop if his brief does not Torture in the IIRIRA. See Ramirez- Mejia Lynch, 240, (5th argument express facts into why v. these 813 F.3d Cir. (“Ramirez-Mejia IT'). correct, 2016) However, preferred statutory his construction is public consider pertinent Court did not address other I would interests,” that the "substantial sections Protocol, dispute of the id at at stake in nor did address availability against whether protection applying of CAT counsel the usual waiver possibility withholding of removal are rule. However, Suspension tions” under Garcia did provisions. removal Clause.26 Cyr, argue below, point ap- and renews the on I.N.S. St. (2001). brief, “was pro- that he never S.Ct. 150 L.Ed.2d 347

peal light his opportunity asy- “longstanding requiring rule vided a real clear initially congressional lum” in statement intent to repeal when he was removed jurisdiction,” Supreme statements in brief habeas 2007. Because these his Court interpreted of his descriptions separate provisions initial confine- three they the IIRIRA sufficiently ment removal are both and concluded had clearly general grant on repealed this court notice and put detailed jurisdiction sufficiently shocking that such notice habeas to federal courts. St. Cyr, heeded, I would conclude that 533 U.S. at 121 S.Ct. 2271. should be Other have recognized before us.25 courts similar constitu properly the issue is problems tional with a literal reading of sure, To the removal statute itself judicial all precludes re prior order of removal provides that “[t]he See, underlying view of the removal action. being ... reopened is not e.g., Ziglar, 436 Ramirez-Molina v. F.3d 1281(a)(5), reviewed,” 8 U.S.C. and some (5th 2006) (“[I]f 508, 513 Cir. there were this as interpreted erecting courts have judicial no review available to an alien in orders, judicial review of such strict bar to initial proceedings, then (“This Ramirez-Mejia, 794 F.3d see 1231(a)(5)’s judicial foreclosure of review court to review the lawful jurisdiction has legal of constitutional and claims regarding order but not the ness of a reinstatement that order arguably after reinstatement order.”); underlying removal Garcia v. Mu implicate Suspension Clause kasey, (2d 2008) 141, 150 Cyr.”). concerns articulated St. “the of re (concluding that reinstatement *23 expressly prohibits moval us from statute Additionally, separate provision while a bite giving ap a second at the petitioner judicial of the INA review precludes over ple”). cases, 1252(a)(2)(D) exempts § some con- restriction; this stitutional issues from

However, recog- as other have courts (B) nized, (C), Nothing subparagraph to this or or story. there is more chapter of this Supreme reading provision has held other Court (other section) a than this which limits or “entirely preclude IIRIRA to review of review, be by any judicial eliminates shall con- pure question of law court would of precluding strued as review constitu- give ques- to substantial constitutional rise protections pro- proceedings cess also in removal 25. aliens in removal do While Kim, 510, enjoy protections not of the Sixth Amend- ceedings. 538 U.S. See Demore v. counsel, pro- ment’s INA itself 724, 1708, (2003) 123 L.Ed.2d S.Ct. 155 (along guarantee vides due this with other (“It is well that the Fifth Amend- established process § protections). See 8 1229 U.S.C. process of ment aliens to due law in entitles (a)(1)(E) ("The may represented by alien be deportation (quoting proceedings.” Reno v. (i) provided the alien will be a counsel and Flores, S.Ct. 113 123 (ii) period time to secure counsel ... and a of (1993))). L.Ed.2d 1 provided by of counsel” the Attor- current list Ashcroft, General); ney see also Lattab 384 Const, (“The 1, § See cl. 26. art. 2004) ("In general, F.3d Cir. section Corpus Privilege of Habeas the Writ of shall represented by aliens to be coun- entitles suspended, be unless when Cases of not sel, by immigration judge, heard an to be Safety public may evidence, Rebellion or Invasion adduce and to cross-examine ad- it.”). witnesses.”). require pro- verse Fifth due Amendment questions peals, tional or of claims law raised that review adequate upon a review petition for filed with an when the alien has not been a given appropriate appeals court accor- meaningful opportunity develop section.” dance 8 U.S.C. administrative record. (b)(ii) 1252(d); § § id. see also Lattab, (internal at 21 n.6 cita- (stating jurisdic- shall no court have omitted). tions discretionary

tion over by actions taken view, In my has satisfied and Secretary General requirement showing that preju- he was Security Homeland “other than the diced process the due deficiencies in his 1158(a),” granting of relief under Section Therefore, underlying I removal order. governs asylum). just would find that as the reinstatement Gen, Att’y U.S., In Debeato v. “any removal statute’s bar of relief’ Third Circuit concluded “there is no relief,”27 does not literally “any mean principled reading reason 1231(a)(5)’s § prior command that the or- 1252(a)(2)(D) § permitting jurisdiction as der being of removal “is not order, yet deny to review final removal reopened or actually reviewed” does not ing jurisdiction to review reinstatement mean reopening” “no and “no be- review” very same order.” 505 F.3d reading, cause such a taken to logical its (3d 2007); 234-35 see also Ramirez- destination, would violate both Suspen- Molina, (“Because 436 F.3d at 513-14 sion Clause and U.S.C. judicial review, limits 1252(a)(2)(D) its prevents operation in conclude, To I would hold that the court cases, one, such as this which the validi permitted is to review the re- underlying of an ty underlying questioned order on moval process order for serious due de- grounds.”). constitutional legal fects when I properly upon called to do so. previously suggested

This court has that would further that a hold mechanical and prior automatic reinstatement of a re- categorical applicatiop of the reinstate- moval order present could serious constitu- ment of statute (allowing it to Lattab, problems. petitioner tional statute, trump as the agency required had not made the showing of suggests majority today), holds prejudice arising underlying from his re- judicial render vindication of such *24 moval proceedings, and thus the court was process due rights impossible. majori- The authority question without to reach the of ty’s ruling thus contravenes the court’s due process-related issues associated duty in cases “a of where serious doubt summary with the reinstatement process. constitutionality raised” is to “first ascer- Nevertheless, my colleagues with one of on tain whether a construction of the statute court, panel writing for we noted: fairly is possible by which [a constitutional]

Although provide question this case does not a be avoided.” Ashwander v. Valley Auth., vehicle for testing 288, the merits of the Tenn. 348, con- 297 U.S. 56 claim, (1936) stitutional (Brandéis, we do not mean S.Ct. 80 L.Ed. 688 J., Benson, that the claim is concurring) insubstantial.... imply (quoting Crowell v. judicial 22, 62, While of review reinstatement 285 U.S. 52 S.Ct. 76 L.Ed. 598 (1932)). orders is in the ap- available courts of notes, moval, status, majority previous

27. As the adjustment aliens with and of of all forms removal orders can for cancellation of "relief” INA. See under the ante at 36 n.7. removal, departure as an alternative to re-

53 believe, duty believe, and our III. The Reinstatement Removal which is legislature Law of the United and International States will Talbot, always hold sacred.” 5 U.S. at 43- might concerns process The due alone Charming Betsy 44. The case followed a more and justify nuanced be sufficient later, years three in which Chief Justice case-by-case inquiry into whether the rein- Marshall announced the more familiar trump should statement statute Congress maxim “an act of ought particular in a petition- never to be to violate the construed law of concerns, However, these high- er’s case. nations if possible other construction case, in lighted vividly so Garcia’s also Charming Betsy, (2 remains.” 6 U.S. problem jarring reinforce the most with Cranch) at 118. conclusion that the rein- majority’s outright: wins such a provision statement This is now interpretive firmly principle reading would cause United States and has established U.S. law been em- treaty run afoul of international commit- ployed by Supreme Court and this case, ordinary ments even more court on a regular interpreting when basis inso where the alien was not afford- cases See, e.g., Weinberger federal statutes. process pro- due in the initial ed Rossi, 71 U.S. ceedings. (1982) (noting construing L.Ed.2d violating federal statutes to avoid interna- Charming Betsy

A. The Canon maxim statutory tional law “been a has construction the decision” interpretive principle ambigu- since Charm- ing Betsy); Lachman, interpreted are to be States v. ous federal statutes United 2004) (“We (1st F.3d conformity recognize with international law where Cir. statutory regulatory a pair Supreme language feasible traced to can be cases, out of be in consonance arising quasi- should construed with Court both Seeman, obligations possible.”); international when war with France: Talbot v. Hensel, (1 Cranch) 1, (1801), 2 L.Ed. 15 and United States v.

Charming Betsy, Talbot, 1983) court) J., (Breyer, for the at 64. In Charming Betsy (describing opinion principle Chief Justice Marshall’s established”); that “the laws of as “well see also Restate- Court observed the Unit- (Third) not, avoidable, Foreign if it be ment Relations Law ought ed States so (“Where (Am. 1987) fairly § 114 to infract the common Law. Inst. construed as nations,” is usages possible, United States statute to be principles and thus, construed so as not to conflict inter- by the Court’s construction of national an international congress “the act of law or with question, statute States.”)28 principles agreement we of the United will never violate those matter, question treaty self-executing agree 28. As an I with the ma- whether initial *25 objection speaks agree- jority to whether the international that there should be no Charming Betsy question as application to ment can be enforced domestic of the canon argu- the United States government's cursory this law in courts of the without case. The ment, implementing legislation, Refugee Protocol is not whether the the not a self- obligation treaty executing treaty inappropriate is is international on the and thus it Charming Betsy canon, part country of the a whole. In Medellin v. to a clear as the is Texas, recognized assuming arguendo Supreme the Court misfire. that the rel- Even treaty not portions Refugee provisions even that do constitute evant of the Protocol are not Charming binding law enforceable United self-executing, application of the federal Betsy “constitute[] an inter- States courts still canon would remain unaffected. 54 Charming

It entirely appropriate Applying is cases of desires this result. the Betsy statutory ambiguity29 adopt to a reading doctrine therefore with is consistent the statute that does not conflict with judiciary’s “say the to law role what the a commitments under non-self-execut- Marbury Madison, Cranch) is,” (1 5 U.S. ing treaty, precisely because the canon is 137, 178, (1803), 2 60 L.Ed. a role concerned with the international obli- extends Pa to international law. See The country, rather than gations quete Habana, 677, 700, 175 U.S. 20 S.Ct. enforceability of domestic international (1900) (“International 290, 44 L.Ed. 320 See, e.g., Ashcroft, law. Ma v. 257 F.3d law, part law is of our and must be ascer 2001) (9th 1095, 1114 (applying Cir. by tained ... and administered the courts Charming Betsy to canon avoid a violation appropriate jurisdiction.”). of the International Covenant on Civil and had Rights, by Political been ratified Refugee B. The Convention by the United States but declared The Refugee Convention “was enacted non-self-executing). to be At Senate least Charming largely in to response experience one circuit has applied Bet- refugees Europe Jewish possible during pe canon in the of a context con- sy II,” riod of Refugee “tragic flict between the INA and the World War and the Holder, Protocol. See Khan v. consequences 584 F.3d of the world’s at indifference (9th 2009) (“Under Charming 773, 783 Cir. that time are known.” well Sale v. Haitian Betsy, interpret Council, Inc., we should the INA in 155, 207, Ctrs. 509 U.S. 113 way a as to conflict such avoid 2549, (1993) (Blaek- S.Ct. 125 L.Ed.2d 128 Protocol, [Refugee] possible.”)30 if mun, J., dissenting). Although the United Convention, States join did not ac A treaty, ultimately, “depends for the Protocol, ceded to the 1967 do so provisions enforcement of its on the inter ing, the “agree[d] comply United States to governments and the honor of the est with the provisions substantive Medellin, Articles it,” parties which are 552 U.S. 2 through Refugee 34” of the Convention. 505, (quoting 128 S.Ct. 1346 Head Mon ey Cases, Congress soon followed with 580, 598, 247, 112 U.S. 5 S.Ct. 28 1980, Act of spe which amended the INA (1884)), L.Ed. 798 and there is no reason cifically United why “bring refugee States judiciary, co-equal branch of law into government, interpret a conformance with the Proto should statute in Cardoza-Fonseca, way 436, 107 such a violate a col.” treaty, would 480 U.S. at by Congress absent a clear showing that it S.Ct. 1207. obligations Central State obligation part national conformity law on the with the law of nations is relevant United States.” 552 U.S. 128 S.Ct. comity,” considerations of international see (2008); 170 L.Ed.2d Lappin, accord Re- (9th Serra v. (Third) ("Every statement international 2010), Cir. I note that even if we were agreement binding upon parties in force is (which minority rule we have performed by good to it and must be them in done), previously certainly there signifi faith.”). “foreign implications,” cant policy Wein berger, canons, interpretive 29. Like other "[t]he (and extent) whether to what the United Charming Betsy play only comes canon into treaty States its abides commitments to Congress's ambiguous.” where intent Unit provide protection fleeing to individuals reli Yousef, (2d ed States v. F.3d gious political persecution. only One need 2003). open why newspaper to see this is so. Although one of our sister circuits has in *26 30. terpreted only applying the canon as "where (and country nationality,” of a the 1951 his had well- the 1967 Protocol under Convention) that States requirement is the persecution founded fear of on account of for procedures “fair and efficient provide particular in a membership both his social refugee status.” the determination religious and because of his activi- group Comm., Conclu Exec. General UNHCR ties, way and there is no that one could Protection, No. sions on International record in this read the voluminous case (Oct. 8, (XLIV), Doc. U.N. A/48/12/Add.l agree and not with that conclusion.33 None 1993).31 exceptions of the under Article of the notes, correctly ante at majority apply to Garcia. Convention both statu- refugee is a under that Garcia below, explained light As of that sta- law. The Convention tory and international tus, qualifies rights for certain and who, “owing one “refugee” a defines law, pro- under international protections for being persecuted fear of well-founded majority’s holding today which the tections race, nationality, mem- religion, reasons denies to him. While the materials accom-j particular group a social bership of rely primarily oh panying petition Garcia’s country opinion, is outside political (the a travel Article 28 to have docu- or, owing to nationality and is unable his ment) (the requirement Article and fear, unwilling to avail himself such facilitate of refu- states naturalization country.” 19 of that U.S.T. protection sake, gees), completeness’ for I note as- adopts or less this at 6261. The INA more aspects major- of the pects of this case and definition, not rele- exceptions same in tension with ity opinion seem be Immigration Judge found vant here.32 The of the as well.34 Garcia, clearly portions “outside the other Convention who is heard, obligations asylum case violates un- Although binding, the views of the Of its 31. High der the Convention Nations Commissioner Protocol” and fice of the United regulations (UNHCR) accompanying "are DHS Refugees been cited have for premised interpretation does not on an which interpretive guidance giv Supreme Court obligations comport Pro- with U.S. under responsibilities expertise and en that office's Negu See, e.g., and which is in viola- tocol and Convention monitoring refugee issues. and 28 Holder, 511, 536-37, law.” Articles 34 tion of international sie v. 555 U.S. interpret examples, I his (2009) are cited as but (consulting 173 L.Ed.2d un- be based on U.S. commitments claim to and Cri UNHCR's Handbook on Procedures regimes generally, Status, treaty more der these Determining Refugee "to teria arguments about the rela- he makes several guidance in the Court looked for which has Cardoza-Fonseca, with- paucity tive of benefits available under past”); holding of removal that would otherwise interpret (seeking guidance in 107 S.Ct. 1207 granted asylum, all of available for aliens ing founded fear” test under the “well collectively implicate variety provi- which Refugee Convention and Protocol from Refugee aside under the Convention UNHCR). sions position of the focus Articles 28 and 34. Given that from 1101(a)(42)(A). 32. See 8 U.S.C. Betsy Charming canon is on the inter- of the obligations of the United States national law case, suppose spirit I if one In the whole, than domestic enforce- as a rather English did Spanish or could not read given ability rights, and what I con- of those opportunity have the record not have the incongruity between U.S. to be a clear sider they tongue, explained to them in their native treaty obligations and the automatic reinstate- opinion way might one not be able to form find these addi- process, I ment of or another on this conclusion. provisions Convention to tional Charming clear, they importance that warrant Bet- be of sufficient Garcia’s actual 34. To be notwithstanding Garcia's failure Agency's interpretation exploration "[t]he claim is that sy brief, for the way deprives explicitly raise them in his of INA supra/ note 24. identified at opportunity to have his same reasons Mr. Garcia of the *27 i Article 17 parties state obliged are to extend the most favorable treatment to refugees Article 17 of the requires Convention (comparable, minimum, to the treatment that states “shall accord to refugees law- they extend to non-refugee aliens from the fully staying territory their the most country), same the imposition of a more favourable treatment accorded to nation- permit cumbersome work program for foreign als of a country in the same cir- in withholding aliens of removal status who cumstances, regards as the right to en- seeking employment likely violates the gage in wage-earning employment.” 19 spirit, letter, if not the of Article 17. U.S.T. at 6269. The préparatoires travaux that, to the Convention notes as used

Article “most favourable treatment” is ii. Article 28 defined “the best treatment which is Article requires Convention accorded to nationals of another country Contracting “[t]he States shall issue by treaty or usage.” See High UN Com- to refugees lawfully staying in their terri- missioner for Human Rights, The tory travel documents for the purpose of Convention, Prépara- 1951: The Travaux travel outside their territory, unless com- Analyzed Commentary by toires with a pelling reasons of national security pub- (hereinafter Paul “Weis, Weis 94 Tra- lic order require.” otherwise 19 U.S.T. at vaux”). early An draft of pro- Article requirement 6274. This arose from a rec- by Secretariat, vided noted that “[ble- ognition “[rjefugees enjoy who do not cause of their limited resources and their protection of the authorities of their status, wage-earning employment is the country origin do not have national only type employment to which most passports” and “would therefore be unable refugees can aspire,” and the commentary to leave the initial reception country if a to Article 17 concludes it is “one of the document replacing the passport had not important most of the Convention.” Id at been Weis, established for their benefit.” Travaux, at 157. The article is essentially a requirement that member grant refugees states the While considering proposed several right work, unrestricted on par with the drafts of Article representa- U.K. rights that would be extended to other tive noted that were a refugee not issued a Yet, above, aliens. as noted withholding of travel document in question, state requires removal status periodic refil- refugee “the probably not be al- ing applications USCIS, of work countries, lowed to enter other they has reject discretion to or delay the appli- would hesitate to admit him for fear that cations, and expiration of a permit they might obliged him keep perma- inability results in the for the alien to work nently on their territory without provi- legally, in status, contrast with asylum Weis, Travaux, sion.” at 161. The U.S. where the expiration of permit representative does said that while “the US had deprive asylee of the right to work. not adhered to convention or agree- 274a.l2(a)(5). See 8 C.F.R. Additionally, ment relating to travel documents for refu- asylees are exempted from the class gees” prior discussions, to these he could aliens who apply” “must to USCIS “for a “assure the Committee refugees resi- document evidencing such employment ordinarily au- dent in the US would be able to thorization,” while country aliens in withholding of leave the to return to it.” Id. 274a.l2(a). are not. added). Id. Because (emphasis *28 places the burden on the categorical requirement, wrong party, is a Article 28 “the because issue of the travel document obligation Contracting on mandatory “a state, obligation” imposed is an on the document,” Weis, see to issue the States compelling applies pub- “unless reasons of Travaux, been yet an alien who has security public justify lic or order a (as refus- withholding op- of removal granted Travaux, Weis, al.” at 194 (emphasis eligible not for such a posed asylum) is original). Examples given for such “com- document, essentially renders travel pelling” grounds in the commentaries in- (at least trapped him the United States refugee clude “cases where a seeks to es- a coun- government unless the finds third prosecution punishment or a cape for him). Because try willing that is to take refugee criminal offence or where the is for people are unavailable these documents suspected travelling engage order to status, withholding of removal afforded espionage criminal or activities.” Id. It withholding of removal to an indi- grant of not, me, seems to the refugee as a qualifies vidual that otherwise alien, issuance of a travel document to an Garcia) (like of the per is a se violation already Garcia, like who had been deter- Convention. qualified protected mined to have for sta- is majority’s rejoinder point to this full already security tus and had a screen- allowing exceptions clause for that the withholding ing part of “compelling when rea- requirement this process. security public or order sons of national require” government allows the otherwise Hi Article SI “deter- requirement to skirt this because provides Article 31 of the Convention entry into this ring repeated unlawful Contracting not that States shall “[t]he ... “compelling a country” reason[ ] is impose penalties, illegal on account of their a ante at 42. This is public order.” See who, on com- entry presence, refugees or gov- temporal non-sequitur, because directly territory a where their ing from that already made a decision ernment has ... enter life or freedom was threatened re- meets the “reasonable fear” Garcia present territory or are in their without If withholding of removal. quirement for authorization,” This 19 U.S.T. order” dictated that “public concerns of implemented in the treaty commitment is States, kept Garcia be out United case, INAby provision, at issue have various then the United States would asy- which allows individuals to him grant to refuse to grounds status,” alien’s “irrespective lum of such deciding But after that Garcia of removal. 1158(a)(1), deny asy- because to U.S.C. threat, possible poses no such on what refugee to a that has flouted a lum relief government argue basis could country’s immigration or border control required that “public order” considerations he urgency laws because of the with which permitted he not be to leave the United country home required was to leave his country? States for some other very fact penalize him for the would be majority sug- in its Nor is the correct being refugee, a see 8 U.S.C. needs to make “an gestion (recognizing refugees, contrary” why definition, argument fleeing persecution); UN by “compelling Refugees does not have a Hoc on State- United States Ad Committee Persons, denying the Secre- public reason of ... order” for less Memorandum tary-General, E/AC.32/2, XI, Ch. to individuals in with- UN Doc. travel documents (Jan. 1950) (“A refugee Art. 24. Para. holding suggestion of removal. Id. That departure country Convention, from his of origin whose in the commentary *29 Introductory described UNHCR’s Note Here, although penalty imposed on to the Convention one of the as most nota- Garcia is not in the form of a criminal principles” ble “fundamental which “under- conviction, is, essence, an administra- pin[s]” the Convention’s commitment tive sanction on account of his earlier ille- rights protection, along with non-discrimi- gal entry—one automatically imposed by 8 nation and non-refoulement. See Introduc- U.S.C. regard without to the (UNHCR) (2010), tory Note UN Conven- underlying petitioner’s circumstances a Relating tion of Refugees Status Dictionary case. (“This Penalty, See Black’s Law recognizes seeking asy- that the (10th 2014) (defining ed. a “statutory pen- lum require refugees can to breach immi- rules.”). alty” as one that is gration “imposed for a statuto- violation; ry esp., penalty a imposing auto- Because of the provi- of this importance liability matic on a wrongdoer for violation sion, “penalties” interpreted cannot be terms.”). of a statute’s It is also worth merely the assessment of a impris- fine or noting that an Amendment was introduced onment, but applied flexibly must be by the Austrian delegate during the Con- assess party whether a state denying is vention negotiations which pro- would have the full scope refugee protection to a vided that non-penalization provision particular individual on account of his or however, “shall not apply, a refugee her illegal entry into the territory.35 state’s against whom an expulsion or Convention, See residence Introductory (“Prohibited judicial order has been issued Note under a or penalties might include administrative being decision of the charged'with immigration State or crimi- Travaux, which asylum.” Weis, nal he seeks relating offences seeking asy- lum, amendment, 214. being or This arbitrarily detained purely describes on the asylum”); spades, basis of Garcia’s situation in seeking see also was voted Rights James Hathaway, overwhelmingly, C. down of Refu- see id. at gees (2005) Under non-penalization International Law 405 final provision of Arti- (stating that penalties may include cle 31 did distinguish “sanc- not a state’s obli- tions that might ordinarily imposed gation be for to a refugee based on the existence breach of the general state’s mi- prior deportation of a or removal order laws”). gration control Though against not defined the same refugee.36 previously 35. We have held merely that detention of asylum), and in Garcia’s case, Amanullah, an alien does not violate Article 31 government because unlike in provision prevent already "was not intended to a has made a decision not to exclude government detaining attempt- country. from one who from the ed illegally, pending to enter a final decision Indeed, as to whether to admit per- or exclude the Commentary pré- and travaux Nelson, son.” paratoires Amanullah v. suggest asy- that "[i]n the case of Here, 1987). however, lum-seekers, n.10 proceedings Arti- illegal on account of problem cle 31 is not entry presence detention but the denial suspended pend- should be Weis, certain forms of relief that ing would otherwise request,” examination of their see (the case, Travaux, right, words, available to aliens in this at 219. In other states Garcia, likely on alty” imposed trig- states that is signatory from other law Case gering a violation of Article 31 because the supports courts also international and from “penalties.”37 penalty imposed before Garcia’s status interpretation of a flexible Magistrates Uxbridge instance, refugee as a can be determined. See Hath- in R v. For Another, parte Adimi, away (noting at 407 that it is “lawful for a ex Court (Divisional Court) government charge asylum-seeker noted an High Court U.K. offense, immigration and even to protections “extend[ed] Article 31’s ultimately prosecution, long so as no merely to those accorded commence until and claiming also to those conviction is entered unless refugee status but faith,” that the non- determination is made the individual asylum good refugee.”). as its broad is not in fact a Convention obligation had penalization genuine Viewing ruling this administrative as a provide immunity “to purpose particular makes sense in a case quest penalty reason- refugees whose *30 Garcia’s, breaching the law.” like where the General’s ably involved them ^[1999] EWHC (Admin) 765, [15-16] (Eng.); practices in the first instance of illegal entry “deprive[d] No. have seeker Soc. Sec. Comm. Dec. see also UK ¶ 1999) (Nov. 25, (noting gain effective access to the CIS/4439/98, right 16 of the procedure narrowly determining refugee for status.” “penalties” interpreting France, H.R., App. Amuur v. Eur. No. substance and Ct. “put[] form above ¶ added). (1996) 19776/92, (emphasis evade 43 contracting states to would enable 31”). word interpreting In Article iv. Article 3 n in the International Cov-

“penalty” as used Rights and Political enant on Civil together, Taken above violations (ICCPR), Rights Human Commit- the UN argument lend credence to Garcia’s similarly ap- flexible has embraced tee likely violates government’s position Canada, Duzen v. proach. See Van provi- of the That Article 34 Convention. ¶ 50/1979, (Apr. 10.2 No. UNHRC Comm. sion, majority opinion, pro- noted in the 1982) 7, Article 15 of the (stating that Contracting States shall “[t]he vides ICCPR, prohibits imposition which facilitate the assimilation possible as far as ... than the one penalty “a heavier 19 refugees.” naturalization of U.S.T. and the crimi- at the time when applicable was added). “precato- While (emphasis at 6276 committed,” in- should be nal offence was Cardoza-Fonseca, 441, 107 ry,” 480 U.S. “object pur- and terpreted according to Stevie, 1207, non-self-executing, S.Ct. whole). treaty as a pose” of 428, 2489, I have 104 S.Ct. 467 U.S. as to whether the bifurcat- short, majority’s ap- serious doubts because the withholding of removal and system in ed prevents an alien proach categorically spirit the basic asylum comports relief applying from Garcia’s situation 34, aliens, an alien’s ini- particularly I Article when to other that would be available fair- tial removal order was bereft basic road- would consider this administrative “pen- process. ness and impermissible block to constitute ” Abbott, weight.’ Abbott v. to considerable obliged claim first before to hear the 16, 1983, ordinary 1, de- forging removal or ahead with 176 L.Ed.2d U.S. 130 S.Ct. 560 illegal Airlines, portation "proceedings on account of (2010) Ltd. (quoting El Al Israel 789 entry presence.” Id. 176, Tseng, 155, 119 Yuan 525 U.S. Tsui (1999) (alterations L.Ed.2d 576 S.Ct. 142 treaty, 'opin "interpreting any [t]he 37. When original)). signatories’ are 'entitled ... ions of our sister way There is one final in which a read- and so did not itself obligations create only ing of the statute that. allows enforceable the federal courts.” Sosa v. Alvarez-Machain, petitioner of removal to a like 2739, 159 (2004). is in S.Ct. serious tension with L.Ed.2d 718 Article 34’s commitment to facilitate the assimila- Notwithstanding its non-self-executing eligible tion and naturalization of refugees, status, Supreme Court and lower fed prohibition also with Article 31’s on eral courts frequently have consulted the “penalizing” refugees. majori- As both the interpretive ICCPR as an tool to deter ty opinion and Section I.F of this dissent important issues in mine the area of hu out, point an alien must meet a much See, e.g., Roper rights man law. v. Sim higher evidentiary showing qualify for mons, 551, 576, withholding of removal. (2005) L.Ed.2d (referring to the support ICCPR to prohibition on the orders, previous

Aliens with juvenile Ma, death penalty); 257 F.3d at therefore, higher have meet a burden to 1114 (relying on ICCPR, Article 9 of the relief, get they less even when never had a prohibits arbitrary arrest or deten meaningful opportunity to meet the lesser tion, interpreting when provision burden and receive Igartúa-De INA); La Rosa v. United more relief. I question how this pos- could States, 2004) sibly object be consistent with the (Torruella, J., reh’g granted, dissenting), purpose of Articles and the Conven- *31 judgment vacated, 404 F.3d 1 tion as a Ultimately, whole. though even 2005) that, (stating despite its non-self- in Article 34 “is the form of a recommen- status, executing “I am nonetheless com Travaux, dation,” Weis, it seems pelled recognize to that the United States very doubtful to me whether this is a inis violation obligation of its under Arti recommendation that we country as a are cle 25 to afford suffrage universal to its following good in faith.

citizens” respect to voting rights of C. The Rico). ICCPR residents of Puerto Although petitioner does not raise applies ICCPR to “all individuals issue, this I want to note one final Charm- within territory [a State’s] and to ing Betsy ¶ problem: approach adopted jurisdiction,” its ICCPR art. a cate- by majority today place leaves in gory which includes aliens. pertinent Most structure, by.Garcia’s situation, evidenced case, to this Article 14 of the lays ICCPR deprives aliens on U.S. soil of the protections out the basic right to a fair guarantees trial enshrined in the In- fair trial.38 Among these basic rights are: ternational Covenant on Civil and Political be promptly “[t]o informed in detail in Rights, 999 U.N.T.S. 171. The ICCPR a language was which he understands of the signed by the United States 1976 and nature and cause of the charge against ratified by him,” thereafter 14(3)(a); Senate Art. adequate “[t]o have Protocol, Similar Refugee time and facilities for the preparation of ICCPR was ratified “on the express un- his defence and to communicate with coun- derstanding that it was not self-executing sel of choosing,” 14(3)(b); his own Art. “to Convention, too, Refugee 38. The provides "applies refugees to all wherever refugees all "shall have free access to the resident and whether the residence is lawful territory courts of law on the of all contract- Weis, Travaux, or not.” at 97. states,” Convention, ing Art. statutory informed, legal agency question not have on this if he does assistance, legal have causes the United States to be in violation right; this and to him, case of its commitments under the ICCPR’s assigned assistance require,” provisions. fair trial justice so the interests where 14(3)(d); have the free assis- “[t]o Art. IV. Conclusion if he cannot under- interpreter

tance of an language used speak stand majori- There is much to be said for the 14(3)(f). court,” Art. ty’s “[ijmmigration observation that law is distinguished by complexity its more than throughout emphasized As I have clarity.” its Ante at 30. In the face of dissent, rights, by these which are none of tempting it can be broadly law and such protected under U.S. also complexity, say our hands and that while proceedings, up throw to aliens removal (and they during immigration his initial these cases are sad to Garcia were extended are), True, govern- simply often we will defer to the proceedings. removal immigration judg- authorities’ reasoned remedied these viola- apparently ment has mandate, statutory to its never is coum ment as in the instant case: Garcia tions consequences and never mind the interpreter mind the had access to seled and However, process volume of due international proceedings. during the trampled along that are principles of the INA is law interpretation government’s you’re way. out” essentially a “one strike and good it does no for Garcia

policy, so judicial memory may muscle This sort process to these basic due have access answer, easy always but it is not be the now, already he has been protections when petitioner Because the in this correct one. process that hoodwinked the Potemkin process in his case was not afforded due jus- with our his initial encounter infected underlying proceedings, and be- come as system. presumably It would tice obliged interpret statutes cause we that a to learn Gov- surprise no treaty ob- in consonance with international *32 Accountability Report con- ernment Office fairly need not ligations possible, where we year after his initial removal ducted the agency interpretation defer to “having [legal] representa- concluded that obligations. violates these than a with more tion was associated I therefore dissent. asylum grant increase three-fold represen- to those without compared rate Accountability Of-

tation.” U.S. Gov’t See System: Asylum GAO-08-940,

fice, Asylum

Significant Existed Variation Immigration Courts

Outcomes Across Judges (2008). good It would also do no CAPITAL, Cayman Islands F5 after the fact. for him to learn this Corporation, Plaintiff- elements of Because none of the basic Appellant, initial met in Garcia’s process due were ap- because the proceedings, Pappas, PAPPAS, Milena Maria today Petros majority leaves proach taken Softeland, Spyros Roger Schmitz, Tom scaffolding that legal place a deferential Erherdt, Kemp, Capralos, Renee un- Koert procedures go allows such tainted Emily Stephens, Rajath Sourie, Stel checked, I also find that deference notes usually flight, rarely in position is is clear “[i]t from the travaux prépar- comply requirements legal with the [’penalties’] atoires that refers to adminis- entry (possession of national passport and judicial trative or convictions on account of visa) country refuge.”) into the For this illegal entry presence, expulsion.” reason, principle of non-penalization is Travaux, Weis, at 219.