Lead Opinion
OPINION
Roderick Lim Go petitions us to review the Board of Immigration Appeals’ (Board) denial of his motion to reopen under the Convention Against Torture (CAT). Go contends that the Board erroneously applied 8 C.F.R. § 1003.2(c), the regulation governing motions to reopen, even though this regulation “makes no reference” to the CAT. Go also contends that the Board abused its discretion in concluding that certain “new evidence” presented in his motion to reopen was not material.
I.
In a previous proceeding, Go applied for asylum, withholding of removal, and protection under the CAT. After the Board denied those claims, we denied Go’s petition for review in a published opinion. See Go v. Holder,
As we explained in our prior opinion, Go’s application for asylum and other forms of relief was predicated on his allegation that he would be “subject to a sham criminal prosecution in the Philippines if removed to that country.” Id. at 1050. He alleged that he and his wife had been “falsely charged with kidnapping” a prominent individual in the Philippines, and that they had fled to the United States to escape prosecution and avoid being retaliated against by members of that individual’s family. Id. With respect to the CAT, Go alleged that he “would be subject to torture if he were held in a Philippine detention facility pending his trial for kidnapping.” Id.
An immigration judge (IJ) found that Go was ineligible for asylum and withholding of removal because of his admission that he was “involved in an illegal drug-trafficking scheme.” Id. As to the CAT claim, the IJ concluded that Go had “failed to carry his burden of demonstrating eligibility for relief.” Id. This conclusion was predicated on testimony from a “government witness” who had “testified that Go would not be tortured in a Philippine detention facility while awaiting trial.” Id. In two separate orders, the Board denied Go’s appeal. Id. The first of these orders affirmed the IJ’s conclusion that Go was statutorily ineligible for asylum and withholding of removal. Id. However, the CAT claim was remanded for further proceedings. Id. After the IJ held proceedings to address that claim more fully, the Board issued its second order, which rejected Go’s claim for relief under the CAT. Id. at 1051. In this order, the Board considered several items of evidence that had been presented before the IJ, including: (1) the fact that “one of Go’s co-defendants in the kidnapping ... had not been tortured or otherwise mistreated”; (2) the testimony of Cezar Tajanlan-git, a former prosecutor in the Philippines, “who testified that torture was uncommon in the facility where Go would be detained”; (3) the “notoriety” of the case, which made it “unlikely that an ill-intentioned officer would believe that he could abuse [Go] without being reported in the press”; and (4) a resolution issued by the Philippine Justice Department that called for dismissal of the kidnapping charges against Go. Id.
We denied Go’s petition to review the Board’s orders. As to the CAT claim, we held that “substantial evidence supported] the Board’s conclusion that Go is not likely to be tortured upon return to the Philippines.” Id. at 1054. We emphasized several aspects of the evidence that led to this conclusion. First, we observed that one of Go’s “alleged accomplices has been detained for some time without harm or incident,” and that although several of his family members had also been charged with participating in his alleged crimes, none of them had been taken into government custody, much less tortured. Id. at 1053. Second, we pointed out that the Philippine government had ordered that the kidnapping charges against Go be dismissed, and said that if he is “no longer
Following our decision, Go filed a motion before the Board to reopen for protection under the CAT. Go’s motion to reopen was predicated upon “new and previously unavailable evidence,” which Go alleged “call[ed] into question” the testimony offered by Tajanlangit before the IJ. The Board denied Go’s motion to reopen as untimely, citing 8 C.F.R. § 1003.2(c) in support of this conclusion. It also held that the “additional evidence regarding [Tajanlangit] does not affect the reliability or veracity of his testimony in this proceeding,” while the other “additional background evidence” submitted in connection with the motion to reopen did not “indicate that conditions are worsening or deteriorating in the Philippines in a manner material” to Go’s claim.
II.
The regulations governing motions to reopen before the Board appear at 8 C.F.R. § 1003.2. These regulations provide that a party may file only one motion to reopen, and that such a motion “must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). There are several exceptions to these limitations on a party’s eligibility to file a motion to reopen, including an exception for motions to reopen “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” Id. § 1003.2(c)(3)(h).
Go’s principal argument is that the regulations governing motions to reopen at 8 C.F.R. § 1003.2(c) do not apply to motions that arise under the CAT, insofar as the language of these regulations “makes no reference to either the [CAT] or to deferral of removal.” This is an argument that we have repeatedly rejected in a series of unpublished decisions. See, e.g., Singh v. Holder,
That conclusion is also supported by the logic of our precedents and by holdings from our sister circuits.
In support of that conclusion, we cited with approval the First Circuit’s decision in Foroglou v. Reno,
[The petitioner’s] main argument is that the Board’s time limit on petitions to reopen is itself invalid because it would result in denying relief to deportees who might then suffer torture, contrary to the [CAT] and to the policies embodied in federal legislation and regulations that implement the [CAT] or otherwise protect the rights of aliens. The short answer to this argument is that [the petitioner] points to nothing in [the CAT] or legislation that precludes the United States from setting reasonable time limits on the assertion of claims under [the CAT] in connection with an ongoing proceeding or an already effective order of deportation. Even in criminal cases, constitutional and other rights must be asserted in a timely fashion.
Id. at 113.
Go’s argument, in a nutshell, is that there cannot be any “regulatory limitation” on motions to reopen under the CAT. But as we concluded in Chen, and as the First Circuit explained in Foroglou, this is not the case. Rather, as we held in Chen, the CAT is not violated by the imposition of “reasonable procedural requirements” on the adjudication of a petitioner’s claims. Chen,
Finally, although we are aware of no published opinion from another circuit that expressly holds that 8 C.F.R. § 1003.2(c) applies to CAT claims, it appears that every circuit to have considered the question has concluded that it does. See, e.g., Zheng v. Bureau of Citizenship & Immigration Servs.,
Accordingly, we hold that the procedural requirements specified in 8 C.F.R. § 1003.2(c) apply to CAT claims.
III.
Given that Go’s motion to reopen was governed by 8 C.F.R. § 1003.2(c), and therefore untimely, the Board concluded that the motion could be granted only if it was “based on changed circumstances arising in the country of nationality” and predicated on “material” evidence of such “changed circumstances” that was “not available and could not have been discovered or presented at the previous hearing.” The Board held that neither of the two types of additional evidence presented in the motion to reopen met this description. First, the Board considered additional evidence regarding Tajanlangit, the former prosecutor from the Philippines, and concluded that this evidence did not “challenge or affect the credibility, reliability or veracity” of his testimony. Second, the Board considered “additional background evidence” about the Philippines. However, the Board concluded that this evidence did not demonstrate “worsening country conditions,” insofar as the record “already contained generalized evidence suggesting a relatively high level of mistreatment and abuse” in the Philippines.
We review the Board’s denial of a motion to reopen for abuse of discretion. Bhasin v. Gonzales,
IV.
Finally, Go argues that the Board should have granted his motion to reopen sua sponte pursuant to 8 C.F.R. § 1003.2(a). However, we lack jurisdiction to review the Board’s decision not to invoke its sua sponte authority to reopen
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
Notes
. Although the Board in this case held that § 1003.2 applies, we do not defer to that decision, because it is a “one-member, non-precedential, [Board] order” and, therefore,
Concurrence Opinion
concurring specially:
I write separately to call attention to an unfortunate confusion in our precedents.
Our opinion makes the following assertion: “Although the Board in this case held that § 1003.2 applies, we do not defer to that decision, because it is a ‘one-member, non-precedential, [Board] order’ and, therefore, does not reflect the agency’s fair and considered judgment on the matter in question.” Supra at 607-08 n.l., quoting Lemmar-Garcia v. Holder,
The outcome of this case is unaffected by this confusion, insofar as Go did not raise the issue of the proper deference to be accorded to the Board’s interpretation of the relevant regulation, and thus waived any argument as to the issue. See Smith v. Marsh,
I.
The confusion addressed in this concurrence arises from a misunderstanding of a crucial distinction in administrative law. That distinction is between the proper deference owed to an agency’s interpretation of a statute and the proper deference owed to an agency’s interpretation of its own regulations. The principles of Chevron deference apply to the former. See, e.g., Gonzales v. Oregon,
In this case, the issue is the Board’s interpretation of its own regulations— namely, 8 C.F.R. § 1003.2. Thus, Auer deference should apply.
“Agencies are entitled to deference to their interpretation of their own regulations.” Native Ecosystems Council v. U.S. Forest Serv.,
Recently, however, we misread this long line of precedent. See Lezama-Garcia v. Holder,
The erroneous nature of this statement was correctly pointed out by the dissent in Lezama-Garcia,
In support of its conclusion, the majority in Lezama-Garcia cited a case from the Seventh Circuit, rather than considering Bassiri or its progeny within the Ninth Circuit. See Lezama-Garcia,
In any event, and regardless of the contrary misinterpretations proffered by us in Lezama-Garcia and by the Seventh Circuit in Joseph, the law of our circuit is clear: “where an agency interprets its own regulation, even if through an informal process, its interpretation of an ambiguous regulation is controlling under Auer unless ‘plainly erroneous or inconsistent with the regulation.’ ” Bassiri,
The distinction between the type of deference owed to an agency’s interpretation of a statute and that owed to its interpretation of its own regulations is critical to understanding the case on which Lezama-Garcia relied. In Garcia-Quintero v. Gonzales,
Lezama-Garcia, which relied upon Garcia-Quintero, crucially failed to apprehend that the latter case was considering an agency’s interpretations of a statute, and thus solely dealt with Chevron deference. Lezama-Garcia begins by observing that Garcia-Quintero had held that a “single-member [Board] decision interpreting a statutory provision” is entitled only to deference “in proportion to [its] power to persuade.” Lezama-Garcia,
The relevant difference between Chevron and Auer deference is well explained by Judge Berzon in her recent opinion in Price. There, she discusses the distinction between “an agency’s informal interpretations of its own regulations [which are entitled to Auer deference] and of its governing statute [which are entitled to Chevron deference].” Price,
As this discussion indicates, it does not follow, from the fact that we would afford no Chevron deference to a single-member Board interpretation of a statute, that we would therefore also afford no Auer deference to such an interpretation of a regulation. See Lezama-Garcia,
III.
One might try to salvage the holding in Lezamctr-Garcia by arguing that Auer does not mandate deference to a one-member, unpublished decision of the Board, insofar as such a decision is not legally binding on
In fact, our court has afforded Auer deference to agency documents that are not legally binding on the agency that issued them. In Public Lands for the People, Inc. v. U.S. Department of Agriculture,
Thus, even though we have expressly held that the Forest Service Manual does not have the force of law and is not binding on the agency that promulgated it, our court has nonetheless given Auer deference to the interpretation of a regulation set forth by that Manual. Public Lands,
IV.
Although I agree with the outcome arrived at by our opinion, a more straightforward way to reach that outcome would have been through the principles of Auer deference. Those principles, as articulated by this court’s precedents, teach that we should regard as “controlling” the Board’s decision to address motions to reopen that present CAT claims under 8 C.F.R. § 1003.2(c). Bassiri,
Applying this standard, we should defer to the Board’s interpretation of 8 C.F.R. § 1003.2(c). First, the regulation is ambiguous. Although the regulation does not expressly refer to the CAT, there is also nothing in the language of the regulation that precludes applying it to CAT claims. Indeed, as our opinion observes, this court has repeatedly taken for granted that it does apply to CAT claims. Thus, the regulation is ambiguous as to this issue. Accordingly, under Auer, we must defer to the Board’s interpretation unless an alternative interpretation is “compelled by the regulation’s plain language” or by other indications of the Board’s intent at the time the regulation was promulgated. Id. As discussed above, 8 C.F.R. § 1003.2(c) is silent as to CAT claims; thus, the plain language of the regulation does not compel us to reject the Board’s interpretation that
V.
In general, the “appropriate mechanism for resolving an irreconcilable conflict [between our decisions] is an en banc decision.” United States v. Hardesty,
. Go does not argue that the regulation at issue, 8 C.F.R. § 1003.2(c), is itself an improper interpretation of the Immigration and Nationality Act. In any event, such an argument would fail. See Vega v. Holder,