SUNG KIL JANG, Pеtitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
No. 11-73587.
United States Court of Appeals, Ninth Circuit.
Filed Dec. 22, 2015.
1189
Argued and Submitted Nov. 6, 2015.
The government points to United States v. Graham, 394 Fed. Appx. 354 (8th Cir. 2010), an unpublished opinion, as support for its position that Arkansas’ aggravated assault statute is categorically a violent felony. Nevertheless, unpublished opinions are not controlling precedent. United States v. Brunken, 581 F.3d 635, 638 (8th Cir.2009). Neither does United States v. Vinton require classification as a violent felony of subsection (a)(1) of the Arkаnsas aggravate assault statute. 631 F.3d 476 (8th Cir. 2011). In Vinton, we concluded that subdivision (2) of Missouri‘s second degree assault statute was a crime of violence under the ACCA. Id. at 485-86. A person commits second degree assault under subdivision (2) if he “[a]ttempts to cause or knowingly causes physical injury to another person by means of a dеadly weapon or dangerous instrument.” Id. at 485 (quoting
The district court thus erred by concluding that Jordan‘s aggravated assault conviction was a violent felony, аnd sentencing him as an armed career criminal. The judgment is vacated and the case remanded for resentencing consistent with this opinion.
Alexander J. Lutz (argued) and Dara S. Smith, Trial Attorneys, and David V. Ber
Before: SUSAN P. GRABER and RONALD M. GOULD, Circuit Judges, and WILEY Y. DANIEL,* Senior District Judge.
OPINION
GRABER, Circuit Judge:
This case presents a single legal issue of first impression: Does section 302 of the North Korean Human Rights Act of 2004 (“the Act“),
FACTUAL AND PROCEDURAL HISTORY
Petitioner Sung Kil Jang was born in North Korea in 1977 and is a citizen of North Korea. It is undisputed that Petitioner testified credibly and that he suffered рersecution in North Korea. Petitioner fled North Korea in 1998 by swimming across a river into China. He resided in China for more than a year, and then traveled briefly to Vietnam and Cambodia, before arriving in South Korea in 2000.
Once relocated in South Korea, Petitioner settled in. He attended and completed а two-year college, where he studied engineering, after which he obtained work. Petitioner remained in South Korea for more than four years and is also a citizen of South Korea. After a waiting period, South Korea issued him a passport, thus allowing him to travel. In addition, he had the right to hold property, receive education, and get public relief in South Korea. Petitioner‘s older sister lives in South Korea, with her husband and children, as does one of Petitioner‘s brothers. When asked whether he feared returning to South Korea, Petitioner responded candidly: “It‘s not that I fear going back to South Korea. I do not like it. . . . I don‘t have fear. I don‘t have fear, but I hate it.”
Petitioner entered the United States in 2004. The government issued him a Notice to Appear, charging him with removability under
The immigration judge (“IJ“) denied relief and ordered Petitioner removed to South Korea because Petitioner “has in fact been firmly resettled in South Korea.” The Board of Immigration Appeals (“BIA“) dismissed Petitioner‘s appeal which, as relevant here, argued that the Act prevents the firm resettlement bar from applying to asylum claims by North Koreans who have relocated to South Korea. The IJ and the BIA relied on the published decision in In re K-R-Y-, 24 I. & N. Dec. 133 (BIA 2007).1 Petitioner timely seeks review.
Because the BIA issued a published, precedential decision in In re K-R-Y-, we must defer to its interpretation of the relevant immigration statute if that statute is ambiguous and if the agency‘s interpretation of it is a permissible one. Toor v. Lynch, 789 F.3d 1055, 1059 (9th Cir.2015). At step one of the familiar Chevron analysis, we ask whether, “applying the normal tools of statutory construction,” the statute is ambiguous, INS v. St. Cyr, 533 U.S. 289, 321 n. 45, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (internal quotation marks omitted); we consider this question de novo, New Edge Network, Inc. v. FCC, 461 F.3d 1105, 1110 n. 30 (9th Cir.2006). “If the intent of Congress is clear, that is the end of the matter. . . .” Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). But if the statute is ambiguous, we move to step two of the Chevron inquiry and consider whether the agency‘s interpretation permissibly construes the statute. Blandino-Medina v. Holder, 712 F.3d 1338, 1343 (9th Cir.2013).
DISCUSSION
Petitioner sought asylum under
(1) In general
(A) Eligibility
The Secretary of Homeland Security or the Attorney General may grant asylum to an alien . . . if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section
1101(a)(42)(A) of this title.. . . .
(2) Exceptions
(A) In general
Paragraph (1) shall not apply to an alien if the Attorney General determines that—
. . . .
(vi) the alien was firmly resettled in another country prior to arriving in the United States.
(Emphases added.) “The term ‘refugee’ means (A) any person who is outside any country of such person‘s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of рersecution or a well-founded fear of persecution on account of [a protected ground].”
Congress has not defined firm resettlement, but a regulation explains the concept:
(a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or
(b) That the conditions оf his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled. In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type оf housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.
For the purpose of our review, Petitioner concedes—as the agency found—that he has “firmly resettled” in South Korea within the meaning of the statute and the regulation. He became a citizen of South Korea, remained there for more than four years—by which time his ability to travel was no longer restricted—enjoyed a wide range of rights, went to college, got a jоb, and had family ties. Indeed, Petitioner concedes that he would be “firmly resettled” on these facts were the country in which he resided before coming to the United States any country except South Korea. Petitioner argues that section 302 of the North Korean Human Rights Act of 2004 changes the analysis for a North Korean who flees to South Korea.
Section 302 of the Act, codified at
(a) Purpose
The purpose of this section is to clarify that North Koreans are not barred from eligibility for refugee status or asylum in the United States on account of any legal right to citizenship they may enjoy under the Constitution of the Republic of Korea. It is not intended in any wаy to prejudice whatever rights to citizenship North Koreans may enjoy under the Constitution of the Republic of Korea, or to apply to former North Korean nationals who have availed themselves of those rights.
(b) Treatment of nationals of North Korea
For purposes of eligibility for refugee status under section 1157 of Title 8, or for asylum under section 1158 of Title 8, a national of the Democratic People‘s Republic of Korea [North Korea] shall not be considered a national of the Republic of Korea [South Korea].
At step one of the Chevron analysis, we conclude that the statute is clear and that it does not аffect the analysis of firm reset
The operative subsection is (b), which prescribes the treatment of nationals of North Korea. Importantly, subsection (b) limits its application: “For purposes of eligibility for refugee status under section 1157 of Title 8, or for asylum under section 1158 of Title 8.” (Emphases added.) Section 1158(b)(1)(A) makes an alien eligible for asylum only if “such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.” To the same effect, under
In other words, operation of the Act depends on the definition of “refugee.” To reiterate, a “refugee” is defined as “any person who is outside any country of such person‘s nationality . . . and who is unable or unwilling to return to” that country because of a well-founded fear of persecution.
As noted earlier, the Act provides that, for purposes of asylum, “a national of [North Korea] shall not be considered a national of [South Korea].” This provision simply eliminates a potential dual-nationality barrier to asylum. A House Report explained that
By contrast, the Act has no effect on the analysis of whether a North Korean has “firmly resettled” in South Kоrea (or anywhere else). Indeed, the House Report noted that South Korea was, and was likely to remain, “the destination of choice for most escaping North Koreans” because of shared language, ethnicity, and history, as well as family ties in many cases. H.R.Rep. No. 108-478(I), 2004 WL 960518, at *16. Nothing in the history of the Aсt suggests that it is meant to disturb such voluntary resettlement. More importantly for our Chevron step-one consideration, the text of the Act contains no reference to
We hold, in summary, that
Petition DENIED.
David W. SANDERS, Plaintiff-Appellant, v. ENERGY NORTHWEST, a Washington municipal corporation, Defendant-Appellee.
No. 14-35368.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 17, 2015.
Filed Feb. 12, 2016.