CARLOS ALEXANDER ZEPEDA-LOPEZ, KARLA ARGENTINA ZEPEDA-LOPEZ, MELISSA ISABEL ZEPEDA-LOPEZ, WUENDY YESSENIA RODRIGUEZ-CERDA, MELISSA ALEXANDRA ZEPEDA-RODRIGUEZ, ANSONY EMMANUEL AGUILAR-CASTRO, Petitioners, v. MERRICK B. GARLAND, United States Attorney General, Respondent.
Docket No. 19-145-ag
UNITED STATES COURT OF APPEALS FOR THE
June 28, 2022
August Term 2021 (Argued: September 15, 2021)
Before: LIVINGSTON, Chief Judge, AND CHIN AND NARDINI, Circuit Judges.
Petition for review of a decision of the Board of Immigration Appeals entered December 14, 2018, dismissing an appeal from the decision of an Immigration Judge denying asylum and the withholding of removal to petitioners, who are dual citizens of Honduras and Nicaragua, and their relatives. The agency denied relief based on Matter of B-R-, where the BIA held that to qualify as a “refugee” under the Immigration and Nationality Act, dual nationals must show persecution in both their countries of nationality. 26 I. & N. Dec. 119, 121 (B.I.A. 2013). The agency determined that while petitioners demonstrated persecution in Honduras, they did not show persecution in Nicaragua, and it concluded that they were not refugees and therefore not eligible for asylum. We grant the petition for review and hold that, to qualify as a “refugee” under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality.
PETITION GRANTED, BIA DECISION VACATED, AND CASE REMANDED.
CHRISTINA COLON WILLIAMS, Esperanza Center for Law & Advocacy, Norwalk, CT, for Petitioners.
MONICA G. ANTOUN, Trial Attorney (Brian Boynton, Acting Assistant Attorney General, Shelley R. Goad, Assistant Director, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.
JON BAUER, Asylum and Human Rights Clinic, University of Connecticut School of Law, Hartford, CT, for Amici Curiae HIAS, International Refugee Assistance Project, Asylum Seeker Advocacy Project, and Integrated Refugee & Immigrant Services, in support of Petitioners.
CHIN, Circuit Judge:
Petitioners seek review of a December 14, 2018, decision of the Board of Immigration Appeals (the “BIA“) affirming a decision of an Immigration Judge (the “IJ“) denying asylum, withholding of removal, and relief under the Convention Against Torture (“CAT“) to petitioners Carlos Alexander Zepeda-Lopez (“Carlos“), Karla Argentina Zepeda-Lopez (“Karla“), Melissa Isabel Zepeda-Lopez (“Melissa Isabel“), Wuendy Rodriguez-Cerda (“Wuendy“), Melissa Alexandra Zepeda-Rodriguez (“Melissa Alexandra“), and Ansony Emmanuel Aguilar-Castro (“Ansony“) (collectively, “Petitioners“) and ordering their removal to Nicaragua. Petitioners entered the United States in 2014 and were placed into removal proceedings later that year. Petitioners applied for asylum and withholding of removal under the Immigration and Nationality Act (the “INA“),
As a general matter, to be eligible for asylum and withholding of removal, an individual must be a “refugee.”
The IJ found that Petitioners did not meet the definition of refugee because of what it described as the “Dual Nationality Bar to Asylum.” Cert. Admin. R. at 139. In doing so, the IJ relied on Matter of B-R-, which interpreted the INA to require that a dual national asylum applicant demonstrate persecution in both countries of nationality to qualify as a refugee. 26 I. & N. Dec. 119, 121 (B.I.A. 2013). The IJ found that Petitioners made the necessary showing as to Honduras -- but not as to Nicaragua -- and therefore were not “refugees” under
We hold that to be considered a “refugee” under
BACKGROUND
A. The Facts
Carlos, Karla, and Melissa Isabel are siblings who grew up and lived primarily in Honduras. They hold secondary Nicaraguan citizenship through their mother, who was born in Nicaragua. Wuendy is Carlos‘s wife and Melissa Alexandra is their daughter. Ansony is Karla‘s husband. Petitioners fled Honduras in 2014 after they experienced continued extortion and physical violence from members of the Mara 18 gang. All Petitioners except for Ansony and Karla, who was pregnant at the time, went to Nicaragua temporarily after they escaped from Honduras and before they arrived in the United States.
Petitioners fled Honduras because, beginning in 2010, the Mara 18 gang extorted the members of the family and threatened to kill them if they did not pay a monthly tax. Although Mara 18 successfully forced the family to pay the tax, four armed gang members attacked the family home in February 2014. During the attack, the Mara 18 gang members asked about family members who had ties to a rival gang and marked the walls of the family home with the number 18. The attackers strangled and threatened to kill Melissa Isabel, and they violently beat and tied up both Carlos and Ansony. Petitioners sought help from the Honduran police, but the police responded only by saying that the family “were dead people already” for calling the police. Cert. Admin. R. at 226. After the attack, Petitioners relocated multiple times to other towns in Honduras. Each time, they were tracked down, threatened, or followed by Mara 18.
Prior to the events in Honduras, Petitioners also experienced violence in Nicaragua. Carlos went to school in Nicaragua around 2003 for two years of elementary school and then from 2008 to 2011 for high school, where he met Wuendy. In June of 2012, during a two-week trip to Nicaragua to visit Wuendy and his just-born daughter, Melissa Alexandra, Carlos was stabbed multiple times and spent five days in a Nicaraguan hospital with a perforated lung. Karla and Melissa Isabel spent some of their childhoods in Nicaragua and testified that they were sexually abused as young children by their stepfather there. During the time that Petitioners were in Nicaragua before coming to the United
All Petitioners entered the United States at Eagle Pass, Texas. Karla did so on May 10, 2014. Ansony entered on either October 7 or November 28, 2014. Carlos, Wuendy, and Melissa Alexandra entered on October 7, 2014, as did Melissa Isabel. Petitioners did not have valid entry documents, nor were they granted admission or parole after inspection.
B. The Proceedings Below
Each Petitioner was served with a Notice to Appear shortly after entry into the United States. The removal proceedings were consolidated into a single proceeding at a Master Calendar hearing on October 6, 2015. Two hearings with respect to Petitioners’ applications for asylum were ultimately held before Immigration Judge Michael W. Straus, on January 30 and February 7, 2017. Carlos, Karla, and Melissa Isabel were the lead applicants. Wuendy and Melissa Alexandra were Carlos‘s derivative applicants; Ansony was Karla‘s derivative applicant.
The IJ denied Petitioners’ applications for asylum, withholding of removal, and relief under CAT on October 6, 2017, and ordered Petitioners to be removed to Nicaragua. The IJ entered positive credibility determinations for Carlos, Karla, and Melissa Isabel and found that Petitioners “experienced past persecution in Honduras,” as “their family was threatened repeatedly by Mara-18.” Cert. Admin. R. at 103-04. Additionally, the IJ found that Petitioners demonstrated that they were persecuted on account of a protected ground and that the Honduran government was unwilling and unable to protect them. The IJ nevertheless denied Petitioners’ application. In doing so, it cited the “Dual Nationality Bar to Asylum.” Id. at 107. Under the precedential Matter of B-R- decision, Petitioners were required to “demonstrate a well-founded fear of persecution in both Honduras and Nicaragua in order to be eligible for asylum.” Id. The IJ explained that Petitioners did not demonstrate such fear as to Nicaragua. Thus, the IJ denied Petitioners’ applications for asylum and withholding of removal, and ordered their removal to Nicaragua.1
Petitioners appealed the IJ‘s denial of their applications for asylum and withholding of removal. On December 14, 2018, the BIA dismissed Petitioners’ appeal. The BIA agreed with the IJ that Petitioners did not, as required under Matter of B-R-, establish persecution on account of a protected ground in Nicaragua. In a two-sentence paragraph, the BIA also explained that it was “not persuaded” by Petitioners’ arguments that Matter of B-R- was wrongly decided and that “therefore we will continue to follow it.” Cert. Admin. R. at 5.
This petition followed.
DISCUSSION
Where, as here, the BIA adopts the IJ‘s reasoning and offers additional commentary, “we review the decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Generally, we review BIA determinations of law de novo. Iavorski v. U.S. INS, 232 F.3d 124, 128 (2d Cir. 2000). When appropriate, however, we afford Chevron deference to BIA interpretations of the INA. See Brathwaite v. Garland, 3 F.4th 542, 547 (2d Cir. 2021). To determine whether Chevron deference applies, we first determine “whether Congress has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). “If the intent of Congress is clear, that is the end of the matter . . . .” Id. “If, however, there is ambiguity,” Chevron requires that we “defer to an agency‘s interpretation of the statute if that interpretation is reasonable.” Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013); see Chevron, 467 U.S. at 843. “Where the BIA‘s interpretation is arbitrary, capricious, or manifestly contrary to the statute, it merits no deference.” Brathwaite, 3 F.4th at 547 (citation and internal quotation marks omitted).
Petitioners argue that the BIA incorrectly interpreted the INA in Matter of B-R- and contend that the statutory text and legislative history establish that a dual national need show persecution in only one country of nationality. Here, Congress has spoken directly to the precise question at issue. As we discuss below, the INA unambiguously requires an applicant for asylum to show well-founded fear of persecution in any one country of the applicant‘s nationality rather than in all such countries.
A. The Statutory Text
1. Language of 8 U.S.C. § 1101(a)(42)(A)
“When interpreting a statutory provision, we begin with the language of the statute.” Nwozuzu, 726 F.3d at 327. We determine whether the statutory language is ambiguous “by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Kar Onn Lee v. Holder, 701 F.3d 931, 936 (2d Cir. 2012) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). We “consider not only the bare meaning of the critical word or phrase but also its placement and purpose in the statutory scheme.” Id. (quoting Holloway v. United States, 526 U.S. 1, 6 (1999)).
The INA defines a refugee, in relevant part, as follows:
[A]ny person who is outside any country of such person‘s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, 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 persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .
We start with the words of the statute. The word “any” has multiple meanings, including “one or some indiscriminately of whatever kind.” Any, Merriam-Webster‘s Collegiate Dictionary (11th ed. 2003); see also Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 117 (2d Cir. 2007) (“As the Supreme Court has frequently observed, use of the word ‘any’ in statutory text generally indicates Congress‘s intent to sweep broadly to reach all varieties of the item referenced.“). Therefore, in the context of a person with more than one nationality, the phrase “any country of such person‘s nationality,” by itself, could refer to one country or to some or all countries of the applicant‘s nationality.
When looking at the “specific context in which that language is used,” Kar Onn Lee, 701 F.3d at 936 (citation omitted), however, the term “any country” is unambiguously singular. The phrase “any country of such person‘s nationality” is followed by the requirement that the person be “unable or unwilling to return to . . . that country.”
The Government argues that the text does not provide the clarity necessary to avoid Chevron deference, but we are not persuaded for two reasons. First, “[a] fundamental rule of textual interpretation is that neither a word nor a sentence may be given a meaning that it cannot bear.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 31 (2012). And the text of
In its argument to the contrary, the Government points to the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (“UN Convention“), as well as the 1967 Protocol Relating to the Status of Refugees (“UN Protocol“), opened for signature Jan. 31, 1967, 19 U.S.T. 6223 (entered into force Oct. 4, 1967; for United States Nov. 1, 1968). The UN Protocol incorporated the UN Convention while untethering the definition of refugee from events occurring before January 1, 1951. UN Protocol, art. I(2). The Government argues that the INA‘s reference to a singular country is not dispositive, as the “refugee definition in the [UN] Convention also refers to the refugee‘s country in the singular, while providing for the possibility that a refugee has more than one country of nationality.” Resp‘t Br. at 19. But unlike the INA, the UN Convention includes a separate, explicit definition for dual nationals, explaining that:
In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
Second, to hold otherwise would require that we read into the INA, as the BIA did in Matter of B-R-, the UN Convention‘s separate dual national definition of refugee. “We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply.” Jama v. Immigr. & Customs Enf‘t, 543 U.S. 335, 341 (2005). For much of the language of
2. The Broader Context of the INA
Our interpretation is supported by “the broader context of the statute as a whole.” Kar Onn Lee, 701 F.3d at 936 (citation and internal quotation marks omitted). The INA and our precedent
We have also acknowledged this multi-step process in our precedent by distinguishing between those who are refugees and those who are eligible for asylum. For example, we have held that “[t]he United States offers asylum to refugees not to provide them with a broader choice of safe homelands, but rather, to protect those arrivals with nowhere else to turn.” Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006) (per curiam). This reflects the bigger picture of the statutory scheme, where an applicant‘s connection to third countries is considered not at the eligibility-for-refugee-status step but rather thereafter, when the United States decides whether the applicant “was firmly resettled in another country prior to arriving in the United States,”
Hence, the INA treats the determination of refugee status and the grant of asylum as distinct steps in the application process. Provisions such as the firm resettlement bar indicate that the grant-of-asylum step is when the asylum applicant‘s connections to third countries, including ties through dual nationality, are considered. Connections, if any, to third countries can also be considered when the agency decides whether, after refugee eligibility has been determined, to grant asylum as a matter of discretion. Thus, we conclude that, for purposes of initial qualification as a refugee under
B. Legislative History
Because Congress clearly answered how the INA addresses dual nationals in the text and structure of the statute, we need
While the INA was enacted in 1952, the modern definition of “refugee” arises from an amendment, the Refugee Act of 1980 (the “1980 Act“). Thus, the relevant legislative history is that of the 1980 Act, which shows that, in passing the Act, Congress sought to “regularize[] and formalize[] the policies and the practices that [had] been followed in recent years.” H.R. Rep. No. 96-608, at 10 (1979). The House Report does not, however, identify which past policies or practices with respect to the treatment of dual national asylum applicants the 1980 Act was intended to codify.6 Nor does any other House or Senate report speak to the treatment of dual national asylum applicants under the new definition. See S. Rep. No. 96-590 (1980); H.R. Rep. No. 96-781 (1980); S. Rep. No. 96-256 (1979). Thus, the legislative history does not clarify whether dual nationals with a well-founded fear of persecution in only one country of nationality are “refugees” under the INA.
We have been pointed to a number of administrative decisions by the BIA and its predecessor agencies where an applicant‘s dual nationalities did not trigger ineligibility for asylum. For example, in 1966, the Immigration and Naturalization Service did not consider an applicant‘s dual Chinese and Taiwanese -- then known as Formosan -- nationalities to be a bar to asylum under § 203(a)(7) of the 1965 amendments to the INA, instead denying asylum based on the applicant‘s firm resettlement in Taiwan. Matter of Sun, 12 I. & N. Dec. 36, 38-39 (Reg‘l Comm‘r 1966). This handful of agency decisions, although illustrative, does not amount to a codified, longstanding, unbroken administrative practice regarding dual nationals at the time of the 1980 Act, and so we cannot say with any confidence that the 1980 Act was intended to codify them.
In the absence of authoritative legislative history or administrative practice that illuminate what past policies the 1980 Act sought to formalize, we have also been directed to several historical examples of legislative and executive actions taken in response to refugee crises involving dual nationals. Prior to 1980, there were multiple occasions when dual nationals were
Nonetheless, in response to urging from American Jewish organizations, the United States government allowed the entry of these Soviet Jews as political refugees. See id. By 1976, the majority of the Jewish immigrants fleeing the Soviet Union who left with exit visas bound for Israel chose, instead, to settle in the United States. Id. at 392-94.
At the same time, there appear to have been counterexamples in which the United States “declined to take groups of refugees on the ground that they were nationals of a country that would accept them.” Bauer, supra, at 964. In 1972, amidst turmoil in Uganda, the United States granted parole only to stateless Asian Ugandans and not those with British citizenship. Id. Similarly, in the mid-1970s, the United States did not accept any of the hundreds of thousands of Portuguese nationals fleeing Angola and Mozambique. Id. Ultimately, although these examples of past governmental policies provide interesting background, they fall on both sides of the dispute we must settle. Accordingly, they shed little light on which past policies or practices regarding dual nationals Congress intended to codify through the passage of the 1980 Act.
As we have already concluded above, however, there is no interpretive ambiguity in the text and structure of the statute, and so there is no reason to resort to legislative history or other records of previous administrative and legislative practice.
C. The BIA‘s Interpretation
As the statutory text unambiguously provides that dual nationals need show persecution only in any singular country of nationality to qualify as a refugee under the INA, we need not defer to the BIA‘s interpretation of
Not only does
In Matter of B-R-, the BIA ended its inquiry by relying solely on undisputed congressional intent to incorporate the UN Convention‘s definition of refugee. But the BIA‘s interpretation ignored the fact that Congress incorporated only select portions of the UN Convention‘s definition, and the BIA‘s broader reading of congressional intent is flatly contradicted by the text of the INA. The BIA also overlooked much of the nuance behind the text and the relevant legislative history. We thus reject the BIA‘s interpretation in Matter of B-R-, 26 I. & N. Dec. 119 (B.I.A. 2013). As the INA does not require dual nationals to show persecution in all countries of nationality to qualify as refugees, we need not address Petitioners’ argument that they showed persecution in Nicaragua.
CONCLUSION
For the reasons set forth above, the petition is GRANTED, the December 14, 2018, decision of the BIA is VACATED, and the case is REMANDED to the BIA for further proceedings in accordance with the proper legal standard.
Notes
The full UN Convention definition of “refugee” reads as follows:
[T]he term “refugee” shall apply to any person who:
. . . .
As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
UN Convention art. 1(A)(2). Cf.