430 F.3d 626 | 2d Cir. | 2005
Lead Opinion
Judge POOLER concurs in a separate opinion.
Petitioner Ida Damko, a native and citizen of Albania, seeks review of an October 29, 2002 order of the Board of Immigration Appeals (“BIA”) affirming an April 2, 2001 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and withholding of removal. Where, as here, the BIA affirmed the IJ’s decision summarily, we review the IJ’s decision rather than the BIA’s order. See, e.g., Yu Sheng Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004).
Petitioner’s claim for asylum rests principally on the fact that, after a 1973 encounter with the security services of Albania’s Communist regime, she was summarily dismissed from her engineering studies at a university. For the following twenty years, she was confined to an industrial job, which she eventually lost, allegedly for political reasons. The IJ concluded (1) that the economic deprivations petitioner had suffered in Albania did not rise to the level of persecution, and, in the alternative, (2) that Albania had undergone a significant change in circumstances such that petitioner no longer had a well-founded fear of persecution. With respect to the IJ’s first conclusion, we hold that, under the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1101 et seq. (“INA”), economic deprivations may rise to the level of persecution if they are “so severe that they constitute a threat to an individual’s life or freedom,” Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985). We review the IJ’s determination that petitioner’s economic deprivations did not threaten her life or freedom under the “substantial evidence” standard and, under that standard, we hold that the IJ correctly found petitioner ineligible for asylum. We therefore deny her
Background
On January 15, 1999, petitioner entered the United States on a tourist visa. Her visa expired six months later, but she remained in this country.
In January 2000, petitioner submitted to the Immigration and Naturalization Service (“INS”)
On March 15, 2000, the INS served petitioner with a Notice to Appear, charging that she was subject to removal from the United States, pursuant to 8 U.S.C. § 1227(a)(1)(B),
' Additional information was also provided regarding petitioner’s employment at the plant. Unlike petitioner’s original asylum application, which described petitioner’s job as supervisory, her second application asserted that she had been a “laborer.”
Petitioner’s removal proceedings resumed on February 1, 2001, when petitioner testified before the IJ to facts along the lines of those asserted in her asylum applications. In particular, petitioner testified that she could not trace her dismissal from the university to any academic shortcomings on her part and therefore attributed the dismissal to her 1973 encounter with the Albanian security services. Petitioner further testified that her subsequent twenty years of work at a plant exposed her to strenuous and potentially dangerous working conditions — conditions that, according to petitioner, “not too many females” were generally forced to endure. At one point, petitioner stated that “because [she] finished the [engineering] faculty,” she was able to operate much of the plant’s equipment. A lengthy exchange between the IJ and petitioner ensued, in which the IJ sought to determine whether petitioner completed her engineering degree or, as petitioner’s asylum applications had asserted, the university dismissed her without a diploma.
On cross-examination by the Government, petitioner admitted that she was fired from her plant job in 1993 amidst a “destroyed” Albanian economy, where layoffs were not uncommon. Moreover, according to petitioner, she was fired (allegedly for not being a member of the Socialist Party) at a time when the Democratic Party, which she apparently supported, was in power. Petitioner insisted, however, that the plant supervisor who fired her was, unlike the officials then ruling Albania, a member of the Socialist Party. Petitioner also confirmed that, at the time she left Albania, she “was a tailor — [a] private tailor working in [her] house.” Petitioner’s husband, who remains in Albania, had been unable to find steady employment and had relied on finding odd jobs. Petitioner was the only witness to testify at her removal proceedings.
On April 2, 2001, the IJ found petitioner removable and denied her application for relief in the form of asylum and withholding of removal. The IJ’s oral decision highlighted three aspects of petitioner’s testimony that were found inconsistent or otherwise not credible: (1) ambiguity as to why petitioner’s relatives, at least one of whom appeared to speak Albanian, required petitioner to serve as a translator during their 1973 visit to Albania; (2) petitioner’s contradictory statements with respect to the extent of university-level engineering education she was able to complete in Albania; and (3) petitioner’s inconsistent descriptions of her plant job
The IJ then concluded that — for two independent reasons — the credible portions of petitioner’s testimony did not demonstrate that she is eligible for asylum or withholding of removal. First, the IJ ruled that petitioner failed to establish that she suffered persecution, because “persecution,” as defined by statutory and case law, “generally requires a level of mistreatment rising well above the level described by” petitioner.
Petitioner appealed the IJ’s decision to the BIA. On October 29, 2005, the BIA summarily affirmed.
Petitioner filed a timely petition for review to this Court.
Discussion
For the reasons set forth below, we hold that the IJ properly determined that economic deprivations petitioner had suffered did not rise to the level of persecution. We need not, therefore, review the IJ’s alternative finding of changed circumstances in Albania.
We begin by identifying the standard that a petitioner must meet under the INA to demonstrate that she has suffered “persecution” by means of economic deprivation. When confronted with “questions implicating ‘an agency’s construction of the statute which it administers,’ ” we apply “the principles of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., [467 U.S. 837, 104 S.Ct. 2778 (1984)].” INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); see also Medina v. Gonzales, 404 F.3d 628, 633 (2d Cir. 2005). In cases implicating the BIA’s construction of the INA, the Supreme Court has found it “clear that principles of Chevron deference are applicable.” Aguirre-Aguirre, 526 U.S. at 424, 119 S.Ct. 1439.
Our analysis under Chevron must begin with an inquiry into whether “the statute is silent or ambiguous with respect to the specific issue” before us, 467 U.S. at 843, 104 S.Ct. 2778 — in this case, the degree of economic deprivation that rises to the level of persecution. We conclude that the INA is “silent or ambiguous” on this point because it includes, but does not define, the term “persecution” in its definition of a “refugee,” 8 U.S.C. § 1101(a)(42)(A), and because it does not address the concept of persecution through economic deprivation at all.
Accordingly, we proceed to the second step of Chevron analysis and inquire whether the BIA’s definition of economic persecution, if any, is “based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. If the construction is reasonable, we must defer to it. Khouzam v. Ashcroft, 361 F.3d 161, 164 (2d Cir.2004).
In Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985) (overruled in part by INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)
We therefore recognize the BIA’s definition of economic persecution — “economic deprivation or restrictions so severe that they constitute a threat to an individual’s life or freedom,” Acosta, 19 I. & N. Dec. at 222 — as the agency’s permissible construction of the INA to which we are required to defer.
We now turn to whether petitioner demonstrated that she had suffered persecution — or, more specifically, whether petitioner’s economic deprivations threatened her life or freedom. As a threshold matter we must identify the standard for reviewing the IJ’s determination that, notwithstanding the general credibility of petitioner’s testimony, petitioner had not made the requisite showing. The INA provides that “the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). The Supreme Court has stated that evidence that would compel a conclusion contrary to an IJ’s finding indicates a lack of substantial evidence in support of that finding. See INS v. EliasZacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We have previously equated the “substantial evidence” standard and the standard of Section 1252(b)(4)(B): “To reverse under the substantial evidence standard, ‘we must find that the evidence not only supports [the conclusion opposite to the IJ’s finding], but compels it.’ ” Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir.2002) (quoting Elias-Zacarias, 502 U.S. at 481 & n. 1,112 S.Ct. 812); see also, e.g., Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir.2004) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000) and Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999)). Yet when “review centers on the [BIA’s] application of legal principles to undisputed facts, we review the determination reached ... de novo.” Guan Shan Liao v. United States, 293 F.3d 61, 66 (2d Cir. 2002); see also, e.g., Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir.2001) (quoting Diallo, 232 F.3d at 287).
As a practical matter, we also hesitate to suggest that an IJ’s factual conclusions merit no deference in cases where, as here, no general adverse credibility finding was made. Commonly, as in this case, the asylum applicant is the sole witness testifying, often with the help of a translator, to events that took place in the distant past and in distant lands. We have previously noted that IJs, who encounter and adjudicate asylum claims routinely, possess a unique competency in making credibility findings, see Zhou Yun Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004)— and this competency surely extends to factfinding generally. We therefore hold that, even when no general adverse credibility finding has been made, an IJ’s predominantly factual conclusion should be reviewed under the “substantial evidence” standard.
The IJ here was asked to make a predominantly fact-based determination regarding the effect of petitioner’s economic deprivations on her life or freedom. Accordingly, we review the IJ’s determination deferentially, pursuant to the “substantial evidence” standard.
In this case, substantial evidence in the record supports the IJ’s conclusion that petitioner’s economic deprivations did not threaten her life or freedom. As the IJ properly acknowledged, petitioner resided in a country with a history of economic struggle and authoritarian rule. There, petitioner encountered a score of injustices, which caused her such psychological distress that she attempted suicide upon being dismissed from the university. Nonetheless, after receiving several years of higher education,
Accepting all of this testimony as true, it is beyond doubt that petitioner survived straitened economic circumstances.
It is likewise beyond peradventure that petitioner’s asserted expulsion from university was not fair. But “persecution
An applicant who, like petitioner, fails to establish eligibility for asylum is necessarily unable to establish her eligibility withholding of removal. See Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999).
Conclusion
We conclude that petitioner failed to establish that the economic deprivations she had suffered in Albania rose to the level of persecution, such that she would be eligible for asylum or withholding of removal under the INA. Accordingly, her petition for review is denied.
. On March 1, 2003, the INS was reconstituted as the Bureau of Immigration and Customs Enforcement within the Department of Homeland Security. Because the BIA and IJ decisions implicated here were issued when the agency was still the INS, we will refer tó it as the INS throughout this opinion. See, e.g., Gelman v. Ashcroft, 372 F.3d 495, 497 n. 2 (2d Cir.2004).
. Section 1227(a)(1)(B) provides that "[a]ny alien who is present in the United States in violation of this Chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmi-grant) has been revoked under [8 U.S.C. § 1201(i) ], is deportable.”
.When asked about this inconsistency during her subsequent testimony, petitioner attributed it to an error made by a student who helped her to complete the original application.
. According to petitioner's subsequent testimony before the IJ, her period of unemployment in 1991 lasted “a few weeks.”
. Among the documents submitted by petitioner are employment records indicating that she and her husband each received social assistance for one year after becoming unemployed.
. The IJ explained his decision not to make a general adverse credibility finding as follows:
I don't really know, but overall I will find the general story to be credible and believable. It was generally, other than those exceptions that I stated, consistent with the written application. It was not prone to over exaggerations. Frankly if she was going to make up a story to get asylum, I think she would have made up a story quite a bit stronger than this one.
. The IJ recognized that petitioner encountered significant difficulties during the twenty-five year period between her encounter with security services and her departure from Albania. The IJ also found, however, that petitioner, inter alia, "managed to work, ... she managed to marry, she managed to have a son who’s attending high school [in Albania] and may go on to college, she managed to open a tailor business out of her house.”
. Either of the IJ's conclusions would be legally sufficient to support his determination that petitioner is ineligible for asylum. It is well-settled that, as a prerequisite for asylum eligibility, an applicant must demonstrate that she meets the statutory definition of a "refugee” contained in 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(l)(B)(i). To meet this definition, an applicant must show that she suffered past persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion,” or that she has a well-founded fear of future persecution on these grounds. 8 U.S.C. § 1101(a)(42)(A); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003). A showing of past persecution creates a presumption of a well-founded fear of future persecution, which may be rebutted "if 'a preponderance of the evidence establishes that a change in circumstances in the applicant’s country of nationality has occurred such that the applicant’s fear is no longer well-founded.’ " Id. (quoting Guan Shan Liao v. DOJ, 293 F.3d 61, 67 (2d Cir.2002)). If the presumption of a well-founded fear of future persecution is thus rebutted, an asylum applicant who relies solely on allegations of past persecution bears the burden of showing that this past persecution was of such "severity” as to offer "compelling reasons” for a grant of asylum. 8 C.F.R. § 208.13(b)(l)(iii)(A); see also Liao, 293 F.3d at 67.
Here, the IJ held that petitioner did not establish past persecution and that, if she had established past persecution, the presumption of a well-founded fear of future persecution would be rebutted. Other than her allegations of past persecution, petitioner did not allege any grounds supporting a fear of future persecution. Nor did petitioner allege that the "severity” of the past persecution she had suffered offered "compelling reasons" for asylum. Therefore, under the established principles of immigration law summarized above, either of the IJ’s two alternative rulings is an
. In Cardoza-Fonseca, the Supreme Court held that the phrase "well-founded fear of persecution” in 8 U.S.C. § 1101(a)(42), see note 8 ante, is distinct from the phrase "life or freedom would be threatened” in 8 U.S.C. § 1231(b)(3) (stating the standard for withholding of removal). See Cardoza-Fonseca, 480 U.S. at 430, 107 S.Ct. 1207. The BIA’s Acosta decision has been overruled only insofar as it is inconsistent with that statutory construction. See Matter of Mogharrabi, 19 1. & N. Dec. 439, 446 (BIA 1987) (holding that Acosta "has been effectively overruled by” Cardoza-Fonseca only "insofar as Acosta held that the well-founded fear standard and the [withholding of removal] standard may be equated” and that "much of [Acosta ] remains intact and good law”). Here, we address Acosta’s construction of the term "persecution” in the context of "past persecution” rather than in the context of “well-founded fear of future persecution” — an aspect of Acosta that survives Cardoza-Fonseca.
. Our concurring colleague argues that subsequent BIA decisions cast doubt upon the rule stated in Acosta and instead follow Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969) (defining economic persecution as "deliberate imposition of substantial economic disadvantage”). She concludes that the BIA’s position is therefore inconsistent and not entitled to
Because neither Barrera nor any other BIA case contradicts Acosta, the principle of Good Samaritan simply does not apply here. See Good Samaritan, 508 U.S. at 417, 113 S.Ct. 2151 (holding that "the consistency of an agency's position is a factor in assessing the weight that position is due” and that "agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is entitled to considerably less deference than a consistently held agency view.”) (internal quotation marks omitted) (emphasis added).
. The decisions of our Court that, without acknowledging or discussing Acosta, suggest a broader definition of economic persecution do so in dictum. See Liao, 293 F.3d at 67 ("Various types of conduct constitute persecution, such as, for example, the deliberate imposition of a substantial economic disadvantage.”) (citing Yong Hao Chen v. INS, 195 F.3d 198, 204 (4th Cir.1999)); see also Cao He Lin v. DOJ, 428 F.3d 391, 406 n.5 (2d Cir. 2005) (quoting Liao without discussion). In Liao, the petitioner sought asylum based mainly on the coercive family planning policies of the People’s Republic of China, but also alleged persecution through economic deprivation in the form of fines and the "seal[ing]” or destruction of his house. 293 F.3d at 67-70. We noted that the economic persecution claim in Liao had been waived by the petitioner, and we then addressed the merits of that claim only "for purposes of completeness.” Id. at 69. In doing so, we did not cite or address the BIA's Acosta decision and relied instead on an opinion from a sister Circuit that, in turn, relied on pre-Acosta case law. See id. (citing Chen, 195 F.3d at 204 (quoting Borca v. INS, 77 F.3d 210, 215-16 (7th Cir. 1996) (citing Kovac, 407 F.2d at 105-07))); see also note 12, post.
We also recently remanded an asylum claim to the BIA for consideration of "any evidence of economic retaliation” in light of Liao. Cao He Lin, 428 F.3d at 406 n.5. In directing the BIA to consider Liao, Cao neither acknowledged nor discussed the BIA’s prior construction of the INA in Acosta. Id. We therefore find nothing in these cases to suggest that the statutory construction in Acosta was impermissible.
Assuming arguendo that in Liao and Cao we adopted an interpretation of the INA directly in conflict with the BIA's interpretation in Acosta, our earlier decisions still would not preclude us from affording Chevron deference to Acosta. The Supreme Court recently resolved the "genuine confusion in the lower courts over the interaction between the Chevron doctrine and stare decisis principles.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., - U.S.-,-, 125 S.Ct. 2688, 2702, 162 L.Ed.2d 820 (2005). It held that "[a] court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Id. at 2700 (emphasis added). Even if our prior decisions in Liao and Cao can be said to have construed the meaning of "economic persecution” under the INA, neither decision suggested that its construction "follows from the unambiguous
. Those cases from other Circuits that apply a broader definition of economic persecution rely on Kovac, 407 F.2d 102 (9th Cir.1969), a pre-Acosta decision. These cases therefore necessarily do not adopt — or defer to — to the BIA's construction of the INA in Acosta. See Kovac, 407 F.2d at 104, 109 (holding that well-founded fear of persecution was established by "a probability of deliberate imposition of substantial economic disadvantage upon an alien for reasons of race, religion, or political opinion,” and remanding denial of asylum where "[i]t became impossible for [a chef] to obtain employment in the occupation for which he was trained”); see also Chen, 195 F.3d at 204 (relying on the economic persecution standard set forth in Kovac); Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996) (same); Borca, 77 F.3d at 215-16 (adopting the definition of economic persecution from Kovac, based in part on the erroneous conclusion that the BIA had also adopted that definition in Acosta).
We note that in Li v. Attorney General, 400 F.3d 157 (3d Cir,2005), the case cited in the concurrence to show that no subsequent BIA case has explicitly relied upon Acosta in adjudicating an economic persecution claim, see post, at 638, the Third Circuit expressly adopts the Acosta rule despite this finding. See id. at 168 (“Informed by the reasoning of these cases [considering Acosta and Kovac], we hold that the deliberate imposition of severe economic disadvantage which threatens a petitioner's life or freedom may constitute persecution. (This is the Acosta standard).”).
. Our concurring colleague misstates, we submit, the appropriate legal standard in arguing that because the BIA has not "made a clear statement regarding the applicable standard,” we do not owe Chevron deference to the agency interpretation. See post, at 638. Under Chevron, the question is whether Congress has clearly indicated its intent. If so, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” 467 U.S. at 842-43, 104 S.Ct. 2778. But when a reviewing court finds that Congress has not "directly addressed” the question at issue, the agency’s determination prevails if it "is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. No "clear statement” rule restricts Chevron deference to "super clear,” or especially unambiguous, agency statements — ;or to those cited in a certain number of subsequent cases.
Our deference to the BIA's Acosta decision does not run afoul of out recent decision in Shi Liang Lin v. DOJ, 416 F.3d 184 (2d Cir. 2005), where we declined to accord Chevron deference to an IJ's construction of the INA when that construction had been summarily affirmed by the BIA. We explained in Lin that the BIA's regulations do not treat the BIA's summary affirmances as " ‘approval of all of the reasoning' ” invoked by the underlying IJ decision, id. at 190 (quoting 8 C.F.R. § 1003.1(e)(4)), or as "binding in any event,” id. at 191. We also noted that, since IJs’ statutory constructions are nonbinding, affording each of them Chevron deference could place us "in the impossible position of having to uphold as reasonable on Tuesday one construction that is completely antithetical to another construction we had affirmed as reasonable the Monday before.” Id. at 190. These concerns are not implicated here, where the IJ did not engage in independent statutory construction, but rather relied on the BIA's prior construction of the INA to which we, in turn, accord deference. Notably, in Acosta, the BIA did not construe the INA under its streamlined procedures that generate summary nonbinding affirmances. Accordingly, affording Chevron deference to Acosta — a binding decision of the BIA rather than a nonbinding decision of an IJ — does not raise the specter of inconsistent rulings within our Circuit.
. Of course, having made no general adverse credibility finding, añ IJ cannot rest his findings of fact on an asylum seeker’s general lack of credibility.
. As noted earlier, the IJ found petitioner’s testimony about the precise extent of her university education ambiguous.
Concurrence Opinion
concurring in the judgment.
I concur in the judgment but, respectfully, cannot join the majority’s reasoning. In determining that the economic deprivations Damko suffered in Albania did not rise to the level of economic persecution, the majority announces a standard that is contrary to a holding of this Court, in tension with Supreme Court and BIA precedent, and unnecessary to decide in this case.
The majority advocates that we apply the economic persecution definition that was originally stated in Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985) (overruled in part by INS v. Cardoza-Fonseca, 480 U.S. 421, 423-24, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) and Matter of Mogharrabi, 19 I. & N. Dec. 439, 439 (BIA 1987)). The Acosta definition states, in relevant part, that a petitioner can establish a persecution claim if she has experienced “economic deprivation or restrictions so severe that they constitute a threat to an individual’s life or freedom.” Acosta, 19 I. & N. Dec. at 222. In contrast, the appropriate economic persecution standard, which was first set out by the Ninth Circuit in Kovac v. INS, is that a petitioner may establish economic persecution based on a “deliberate imposition of substantial economic disadvantage.” 407 F.2d 102, 107 (9th Cir. 1969).
As an initial matter, I disagree with the majority’s facile determination that the
My second difficulty with the majority opinion is its statement that this Court has “tacitly approved” the Acosta economic persecution definition. To the contrary, one of our holdings in Guan Shan Liao v. United States Dep’t of Justice rests on the application of the broader Kovac standard. 293 F.3d 61, 70 (2d Cir.2002). In conjunction with our holding that petitioner did not present sufficient evidence to permit an economic persecution finding, we stated that “an asylum applicant must offer some proof that he suffered a deliberate imposition of substantial economic disadvantage.” Id. (internal quotation marks omitted). The majority reasons that this determination was dictum because we elected to consider an arguably waived issue “for purposes of completeness.” Ante, at n. 11.
The majority also mis-characterizes our decision in Alvarado-Carillo as tacit approval of the Acosta standard, even though we make no mention of Acosta nor its definition in that case. See Alvarado-Carillo v. INS, 251 F.3d 44 (2d Cir.2001). In fact, our Alvarado-Carillo ruling suggests that we applied the broader Kovac standard. The Alvarado-Carillo court remanded, in part, for consideration of whether the petitioner’s blacklisting and resulting demotion rose to the level of persecution. By implicitly acknowledging that a demotion could constitute persecution, Alvarado-Carillo tacitly rejected the Acosta “threat to life or freedom” standard. Id. at 47-48, 55-56.
Third, the majority’s application of Acosta appears to conflict with the Supreme Court’s decision in Cardoza-Fonseca, which based its holding on a determination that Congress intended for the asylum standard to be more generous than the withholding of removal standard. See 480 U.S. at 423-24, 107 S.Ct. 1207. The BIA has subsequently overruled Acosta “insofar as it held that the [asylum and withholding of removal] standards were not meaningfully different and, in practical application, converged.” Matter of Mogharrabi, 19 I. & N. Dec. at 439.
The Acosta definition, relied on by the majority, establishes no meaningful difference between the asylum and withholding of removal standards for purposes of a past persecution claim. According to the Acosta definition, an asylum applicant cannot establish past persecution unless she has experienced economic deprivation so severe that it constituted a threat to an individual’s life or freedom. Similarly, a withholding of removal applicant relying on a past persecution argument also must establish that she suffered a past threat to life or freedom. See 8 C.F.R. § 1208.16 (emphasis added). Thus, under the majority’s holding, there would be no meaningful difference between the definitions of past persecution in the two standards, bringing the majority’s holding into conflict with Mogharrabi and into tension with Cardoza-Fonseca, 480 U.S. at 423, 107 S.Ct. 1207 (“Congress did not intend the class of aliens who qualify [for asylum] to be coextensive with the class who qualify for [withholding of removal] relief.”).
Despite my disagreement with the majority’s economic persecution determination, I concur in the judgment. Even if Damko’s past economic persecution is meritorious, she is still barred from relief. The Immigration Judge’s decision was based on two determinations, (1) that the economic deprivations Damko suffered did not rise to the level of past economic persecution and, in the alternative, (2) that, even if Damko had established past economic persecution, the government met its burden of showing that Albania had undergone a significant change in circumstances such that Damko no longer had a well-founded fear of future persecution. While Damko appealed the first ruling to the BIA, she failed to appeal the alternative “changed circumstances” ruling. Accordingly, Dam-ko failed to exhaust her claim to the BIA and thereby could not succeed on appeal to this Court even if we unanimously agreed that she suffered past persecution in Alba
. Because of this disagreement, my analysis is not affected by the Supreme Court’s recent decision that we should accord Chevron deference to an agency interpretation of a statute even where it conflicts with our prior cases unless there is no room for agency discretion. Nat'l Cable & Telecomms. Ass’n. v. Brand X Internet Servs., - U.S. -, -, 125 S.Ct. 2688, 2700, 162 L.Ed.2d 820 (2005).
. The BIA in Acosta was not faced with an economic persecution claim and merely noted this definition in passing. See Matter of Acosta, 19 I. & N. Dec. at 222. The majority does not find this to be significant in Acosta, but then argues Matter of Barrera, 19 I. & N. Dec. 837, is inapposite because it only mentions economic persecution in passing. See ante at n. 10.
. My colleagues in the majority accuse me of misstating the appropriate standard by requiring a "super clear” statement by the BIA before we accord Chevron deference, see ante at n. 13, but I merely follow the Supreme Court’s instruction ' in Good Samaritan that conflicting agency interpretations of a statute are " ‘entitled to considerably less deference’ than a consistently held agency view.” 508 U.S. at 417, 113 S.Ct. 2151 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 94 L.Ed.2d 434). Where an agency interprets a statute, in passing, and later interprets the same statute differently, ' even if only again in passing, Chevron does not require that we defer to the earlier interpretation. Id.