R-S-C v. SessionsR-S-C v. Sessions
There is an apparent conflict, which is squarely presented in this case, between two provisions of the Immigration and Nationality Act (INA). The asylum section provides that “[a]ny alien ..., irrespective of such alien‘s status, may apply for asylum[.]”
R-S-C illegally reentered the United States after having been removed and her prior removal order was reinstated, thus under the Attorney General‘s interpretation of the INA, she cannot apply for asylum. She now challenges the Attorney General‘s regulations as inconsistent with the INA‘s asylum guarantee. We conclude that Congress has not clearly expressed whether aliens governed by the reinstatement provision may apply for asylum. However, the Attorney General‘s regulations are consistent with a reasonable interpretation of the statutory scheme, so they are entitled to administrative deference. Accordingly, we DENY the petition for review.
A. Legal Background
1. International Agreements and Statutes
The United States has acceded to, and agreed to be bound by, the 1951 U.N. Convention Relating to the Status of Refugees (Refugee Convention), 189 U.N.T.S. 150 (July 28, 1951). See 1967 Protocol Relating to the Status of Refugees, 19 U.S.T. 6223 (Nov. 6, 1968); INS v. Cardoza-Fonseca, 480 U.S. 421, 429, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). The Refugee Convention contains two principles relevant to this case. First, Article 33.1 provides, that “[n]o Contracting State shall expel or return (’refouler‘) a refugee ... where his life or freedom would be threatened on account of his race, religion, nationality, membership of а particular social group or political opinion.” 19 U.S.T. at 6267 (emphasis added). This prohibition on deporting aliens to a country of risk is known as the “nonrefoulement” principle. Cardoza-Fonseca, 480 U.S. at 440, 107 S.Ct. 1207. Second, Article 34 states that “[t]he Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees.” Id. (emphasis added).
Congress imbued these international commitments with the force of law when it enacted the Refugee Act of 1980 (Refugee Act), Pub. L. 96-212, 94 Stat. 102-18, which amended the INA in certain respects. The Refugee Act prohibited the Attorney General from deporting any alien to a country if such deportation would endanger that alien‘s life or freedom based on certain characteristics of the alien.
Congress then passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C.), which refashioned the above principles into their current form. As for nonrefoulement, the statute now provides that “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien‘s life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion,”
IIRIRA also revised the asylum section of the INA, which now provides that “[a]ny alien who is physically present in the United States or who arrives in the United States ..., irrespective of such alien‘s status, may apply for asylum in accordance with [section 1158]....”
IIRIRA also addressed a separate issue altogether, which is at the heart of this case: reinstatement of рrevious removal orders. Congress was frustrated with existing procedures for deporting aliens who repeatedly re-entered the United States unlawfully.2 In order to expedite the removal process for these repeat offenders and deter illegal reentry, Congress mandated:
If the Attorney General finds that an alien has reentered the United States illegally after having been removed ... under an order of removal, the prior order of removal is reinstated ... and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
2. Apparent Conflict and Attorney General‘s Regulations
After IIRIRA‘s amendments, there is an apparent conflict between two sections of our immigration laws. While the asylum section entitles “any alien ... irrespective of such alien‘s status” to apply for asylum,
The Attorney General has answered this question in the negative. Regulations promulgated by the Immigration and Naturalization Service (INS)—an agency formerly under the purview of the Attorney General—preclude aliens subject to reinstated removal orders from applying for asylum, but those aliens may nevertheless apply for withholding of removal.3
Unfortunately, the Attorney General‘s restriction on asylum makes a difference to an applicant because asylum “affords broader benefits” than withholding of removal. Cardoza-Fonseca, 480 U.S. at 428 n.6, 107 S.Ct. 1207. Asylum status offers protection from deportation to any country,
With this statutory and regulatory regime in mind, we turn to the facts of the case before us.
B. Factual Background
R-S-C is an indigenous Guatemalan woman who has come to the United States without inspeсtion three times to escape persecution in her home country. In Guatemala she was raped on numerous occasions, sodomized, physically beaten and strangled, kidnapped, and extorted—all while local law enforcement authorities did nothing to prevent these abuses. She suffered this persecution, in substantial part, because she was an indigenous Guatemalan woman in a country that routinely condoned and encouraged severe mistreatment of its own indigenous women.
After the local Guatemalan police refused to protect her from some of these reported abuses, R-S-C first fled to the United States in January 2014 without inspection and was apprehended by border officials. R-S-C told them that she “had fear, and that [she] had come fleeing because [others] wanted to kill [hеr].” AR 205. She testified that the officers did not believe her, and that they accused all Guatemalans of being “liars.” Id. Without referring her to an asylum officer to investigate her claimed fear of persecution, the border officials summarily deported R-S-C. She was ordered removed on January 13, 2014.
R-S-C stated that upon return to Guatemala she was drugged, raped, and left for dead on a riverbank. Shortly thereafter, she again made her way to the United States and arrived in early April 2014 without inspection. After being apprehended by immigration officials, she asked them to “please help [her] because [she] was fearful of returning to [her] country.” AR 213. According to R-S-C, an officer called her a “liar” based on her failure to
R-S-C testified that when she returned to Guatemala, violent threats and extortion against her continued. So she fled to the United States again, this time, accompanied by her eight-year-old son. She arrived in the United States without inspection on July 7, 2014, at or near Hidalgo, Texas, and was apprehended by immigration authorities on or about that same day. On July 23, 2014, the Department of Homeland Security (DHS) notified R-S-C of its intent to reinstate the prior January 13, 2014 removal order, thereby triggering the relief bar of
The asylum officer found that R-S-C did not have a reasonable fear of persecution if returned to Guatemala. An immigration judge, however, subsequently reviewed and vacated that decision and placed R-S-C in “withholding-only” proceedings. Nevertheless, because of asylum‘s superior benefits (e.g., the pathway to citizenship, the ability to travel internationally, and the chance to apply for asylum status for a spouse and children), R-S-C asked the immigration judge to award asylum rather than withholding of removal. After a hearing, the immigration judge issued a decision on January 5, 2015, awarding R-S-C withholding of removal but ignoring R-S-C‘s request for asylum. R-S-C appealed to the Board of Immigration Appeals (BIA) on the asylum issue, arguing that even illegal reentrants with reinstated removal orders are eligible for asylum. The BIA disagreed, and dismissed the appeal. R-S-C now petitions this Court for review.
II. DISCUSSION
We first address R-S-C‘s threshold argument that the reinstatement provision does not apply to her because she did not illegally reenter the United States. Finding no merit to that contention, we proceed to answer the principal question presented in this appeal. Because Congress did not clearly resolve the conflict between
A. Applicability of the Reinstatement of Removal Provision to R-S-C
The reinstatement of removal provision is triggered when an alien ”reenter[s] the United States illegally” after having been previously removed.
The problems with this argument are two-fold. First, R-S-C expressly declined to contest the determination that she reentered the United States illegally. Before her prior removal order was reinstated, R-S-C was given notice on a form that stated: “You illegally reentered the United States on or about July 7, 2014 at or near Hidalgo, TX.” AR 866 (emphasis added). R-S-C affixed her signature next to a declaration that she “d[id] not wish to make a statement contesting this determination.”
Second, even if R-S-C‘s legal arguments are correct—i.e., that earnestly seeking out an immigration official to apply for asylum is not an illegal reentry within the meaning of the reinstatement statute—the administrative record here does not support that version of the facts. The INA restricts our review of R-S-C‘s petition only to the administrative record, see
Without evidence that R-S-C was affirmatively seeking out an immigration officer to apply for asylum, even if that were legally sufficient to transform an entry without inspection into a lawful entry, we must regard the immigration officer‘s determination as “conclusive.”
B. Statutory Conflict Between the Asylum and Reinstatement Provisions
We turn now to the principal question presented: Can an illegal reentrant with a reinstated removal order apply for asylum? In answering this question, we proceed along Chevron‘s two-step framework. First, we examine “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. In light of the apparent conflict between the asylum and reinstatement provisions, we conclude that the statutory command is ambiguous. Second, because “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. “If the implementing agency‘s construction is reasonable, Chevron requires a federal court to accept the agency‘s construction of the statute[.]” Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (emphasis added). In this case, because the Attorney General‘s withholding-only rule is consistent with a reasonable interpretation of the statutory scheme, it warrants Chevron deference.6
1. Chevron Step One—Congress Did Not Clearly Resolve the Question
The statutory text does not clearly indicate whether illegal reentrants with reinstated removal orders are eligible to apply for asylum. Section 1158(a)(1) entitles ”any alien ... irrespective of such alien‘s status” to apply for asylum. (emphasis added). Section 1231(a)(5), by contrast, provides that a specific class of aliens—those who illegally reentered the United States and whose prior removal orders have been reinstated—are ”not eligible and may not apply for any relief under this chapter[.]”7 (emphasis added). It is apparent that these two provisions are at odds with one another. The parties both attempt to explain how their preferred provision unambiguously controls over the other, but we are not persuaded. For several reasons, this intra-statutory conflict obscures any clear
First, and most obviously, each provision appears to encompass the other. Section 1158(a)(1)‘s language referring to ”any alien ... irrespective of such alien‘s status” logically includes aliens with reinstated removal orders. (emphasis added). At the same time, § 1231(a)(5)‘s reference to ”any relief” naturally encompasses asylum as a particular form of prohibited relief. (emphasis added). The statutory text of each subsection thus appears to incorporate the other, and Congress has offered no reliable indicator of which provision takes precedence over the other.
R-S-C counters that the reference to “any alien ... irrespective of such alien‘s status” communicates an unmistakable command, while the phrase “any relief” is ambiguous, so the clear should trumр the vague. The argument goes as follows. The asylum subsection, by its own terms, unquestionably applies to all aliens. By contrast, the reinstatement provision is equivocal because the apparent prohibition on applying for “any relief” does not truly foreclose all forms of immigration relief. That is because even an alien subject to reinstatement may nevertheless apply for withholding of removal.
We reject this argument for several reasons. At the outset, the absence of any statutory definition for the term “relief” supports, rather than detracts from, our conclusion that Congress has failed to address the precise issue in this case. Furthermore, the fact that “any relief” has a caveat elsewhere in the statute does no more to undermine the breadth of the reinstatement provision than the enumerated exceptions to asylum eligibility undercut the scope of the asylum guarantee. See
Second, we find no clarity in the well-established principle that, when two statutes conflict, the “specific governs the general.” Nitro-Lift Techs., LLC v. Howard, 568 U.S. 17, 21, 133 S.Ct. 500, 184 L.Ed.2d 328 (2012). We often apply this interpretive canon because “the more specific of two conflicting provisions ‘comes closer to аddressing the very problem posed by the case at hand and is thus more deserving of credence.‘” Perez-Guzman, 835 F.3d at 1075 (9th Cir.) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 183 (2012)). But the provisions at issue here are each more specific than the other in different respects. Section 1158(a)(1) speaks narrowly to a specific form of immigration re
Third, the absence of any “reinstatement exception” within the asylum section does not clearly indicate that asylum is insulated from the reach of the reinstatement of removal provision. R-S-C argues that if Congress intended asylum eligibility to be unavailable to a certain class of aliens (e.g., those with reinstated removal orders), it would have included that exception in the asylum section where all the other exceptions to asylum eligibility are located.
For these reasons, we cannot say that the statutory text itself resolves the question presented. Congress clearly addressed the issues of asylum eligibility and reinstated removal orders separately, but Congress has not “directly spoken to the precise question at issue” here, Chevron, 467 U.S. at 842, 104 S.Ct. 2778, which is whether an illegal reentrant with a reinstated removal order may apply for asylum. Without any clear answer from the statutory scheme, we turn to the Attorney General‘s interpretation of the INA to determine whether it is reasonable.
2. Chevron Step Two—The Attorney General‘s Withholding-Only Rule Is Entitled to Deference
At Chevron‘s second step, we analyze whether “the implementing agency‘s construction is reasonable,” and if so we must “accept the agency‘s construction of the statute.” Brand X Internet Servs., 545 U.S. at 980, 125 S.Ct. 2688. Before proceeding to analyze that question, however, we address R-S-C‘s threshold argument that the Attorney General perceived the withholding-only rule as compelled by statute. We reject that contention and further determine that the withholding-only rule is consistent with a reasonable construction of the statutory scheme. Thus it is entitled to Chevron deference.
i. Whether the Attorney General Perceived That the Withholding-Only Rule Was Compelled By Statute
R-S-C and amici curiae argue that Chevron deference does not apply here because the Attorney General failed to perceive any ambiguity in the statutory scheme and instead viewed the withholding-only principle as compelled by Congress. An agency receives Chevron deference only when it exercises delegated interpretive authority—and an agency
But the Attorney General‘s silence on this statutory interplay does not mean the Attorney General missed the ambiguity. Without some affirmative indication in the regulatory record that the Attorney General believed the withholding-only rule was compelled by Congress, we will not assume as much. See Am. Fed‘n of Gov‘t Emps., Local 1592, 836 F.3d at 1295-96 (remanding for reconsideration of an agency rule when the agency explicitly stated that its interpretation was compelled by statutory text). This is in accord with our sibling circuits which have held that the regulatory record‘s silence on this precise issue does not mean the Attorney General believed his hands were tied by Congress. See Garcia, 856 F.3d at 38 n.10 (1st Cir.); Perez-Guzman, 835 F.3d at 1079 n.8 (9th Cir.). Accordingly, we reject this threshold argument and proceed to consider whether the withholding-only regulations warrant Chevron deference.
ii. Whether the Withholding-Only Rule Receives Chevron Deference
The Attorney General‘s regulations are consistеnt with a reasonable interpretation of the statutory scheme. Thus, they are entitled to deference. At the outset, we note that our analysis is colored by the Supreme Court‘s instruction that “judicial deference in the immigration context is of special importance” because of the foreign-affairs implications inherent in immigration policy. Negusie, 555 U.S. at 517, 129 S.Ct. 1159 (citation omitted). Whether to allow certain aliens to apply for asylum could “affect our relations with the alien‘s native country or its neighbors[,]” so we take care to step cautiously in this field. Id. (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999)) (alteration omitted). With this in mind, we conclude that the Attorney General‘s interpretation is permissible for several reasons.
First and foremost, it is reasonable for the Attorney General to conclude that § 1231(a)(5) means just what it says: that certain aliens are not eligible for “any relief.” It is also reasonable to conclude that the reference to “any relief” naturally means all forms of relief (other than mandatory withholding of removal), including asylum. Given that the Attorney General‘s interpretation aligns with this statutory language, we are inclined to find that it is at least reasonable, even if it conceivably conflicts with another part of the INA statute.
Second, although we determined that the specific-general canon of statutory interpretation does not conclusively indicate which provision should take precedence, it is not unreasonable for the Attorney General to decide that the reinstatement subsection is more specific in the relevant respect. Section 1231(a)(5) addresses a
Third, the Attorney General could reasonably conclude that the reinstatement provision operates with stronger force than the asylum section. Section 1231(a)(5) speaks in mandatory terms, requiring the Attorney General to deny relief to aliens with reinstated removal orders.
Fourth, the asylum section expressly authorizes the Attorney General to “establish additional limitations and conditions, consistent with [section 1158], under which an alien shall be ineligible for asylum....”
Finally, the Attorney General‘s determination reasonably furthers IIRIRA‘s purpose in strengthening the reinstatement provision. Before IIRIRA, the INA subjected “only a limited class of illegal reentrants” to reinstatement of removal (e.g., “anarchists” and “subversives“), but “even those affected could seek some varieties of discretionary relief[.]” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) (quotation marks, citation omitted). But in IIRIRA, Congress replaced this more lenient regime with the current reinstatement provision, which “toed a harder line” by applying its mandate to “all illegal reentrants
Despite the foregoing considerations, R-S-C offers two theories for why the Attorney General‘s interpretation is nevertheless unreasonable. First, she argues that any ambiguity should be construed in compliance with international law. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) (federal statutes “ought never to be construed to violate the law of nations if any other possible construction remains“). Article 34 of the Refugee Convention, to which the United States acceded in 1968, provides that signatory nations “shall as far as possible facilitate the assimilation and naturalization of refugees.” Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, 6267 (Nov. 6, 1968). Article 28 further provides that signatories “shall issue to refugees ... travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require[.]” Id. In the United States, asylum status complies with these standards—it offers a path to citizenship and enables the alien to travel abroad without fear of being turned away upon reentry. Withholding of removal, however, does not provide such benefits. R-S-C thus contends that the Attorney General‘s withholding-only interpretation is out of step with international law, and so is unreasonable.
But the conflict with international law is not so obvious. As the Supreme Court has noted, Article 34‘s assimilation principle is “precatory; it does not require the implementing authority actually to grant asylum to all those who are eligible.” INS v. Cardoza-Fonseca, 480 U.S. 421, 441, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Furthermore, Article 28‘s travel guarantee is qualified by an exception permitting signatories to restrict travel for reasons of national security or public order. It is not unreasonable for the Attorney General to conclude that strictly enforcing IIRIRA‘s relief bar advances U.S. national security or the public order. See Garcia, 856 F.3d at 41-43 (1st Cir.) (finding that the withholding-only rule did not violate the Refugee Convention).11
More fundamentally, the Attorney General‘s denial of asylum eligibility flows naturally enough from the statutory scheme, and it is conceivable that Congress was willing to accept a collision with international law in order to address what it perceived was a severe illegal-immigration problem. “Mindful that Congress has the power to legislate beyond the limits posed by international law,” Serra v. Lappin, 600 F.3d 1191, 1198 (9th Cir. 2010) (internal
Second, R-S-C asks us to apply the immigration equivalent of the rule of lenity to resolve this interpretive question in her favor. See Cardoza-Fonseca, 480 U.S. at 449, 107 S.Ct. 1207 (referring to the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien” (emphasis added) (citations omitted)). This principle of leniency is animated by the harsh penalty of deportation—it has nothing to do with denying aliens extra benefits while lawfully present in the United States. See INS v. Errico, 385 U.S. 214, 225, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966) (“We resolve the doubts in favor of [the alien] because deportation is a drastic measure and at times the equivalent of banishment or exile[.] It is the forfeiture for misconduct of a residence in this country.” (emphasis added) (internal citation omitted) (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948))). R-S-C does not face removal to another country because her removal has been withheld pursuant to
CONCLUSION
The INA does not clearly answer the question whether an illegal reentrant with a reinstated removal order may apply for asylum. The Attorney General, however, has reasonably interpreted the ambiguous statutory scheme in concluding that such an alien is not eligible for asylum relief. We therefore defer to the Attorney General‘s interpretation, and DENY the petition for review.13