PETITIONS
FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Nancy
J. Kelly, with whom John Willshire Carrera, the Harvard
Immigration & Refugee Clinic, and Greater Boston Legal
Services were on brief, for petitioner.
Kevin
J. Conway, Attorney, Office of Immigration and Litigation,
Civil Division, United States Department of Justice, with
whom Andrew Oliveira, Trial Attorney, Office of Immigration
and Litigation, Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, and Justin Markel, Senior Litigation
Counsel, were on brief, for respondent.
Before
Barron, Selya, and Stahl, Circuit Judges.
BARRON, Circuit Judge.
In this
dispute, we must decide whether aliens who are subject to
reinstated orders of removal may apply for asylum. Below, the
immigration judge ("IJ") and the Board of
Immigration Appeals ("BIA") each concluded that
such aliens may not apply for asylum, even though they may be
entitled to withholding of removal. The IJ and the BIA based
their conclusions on certain provisions of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
Pub. L. 104-208, 110 Stat. 3009-546 ("IIRIRA"), as
well as Department of Homeland Security ("DHS")
regulations that implement those provisions. And, on that
basis, the IJ and the BIA ruled that Victor Garcia Garcia
("Garcia"), a citizen of Guatemala who is subject
to a reinstated order of removal, could not apply for asylum,
notwithstanding that the IJ determined (and the government
does not dispute) that he is entitled to withholding of
removal due to the persecution he would face in his home
country.
Garcia
now brings these consolidated petitions for review, in which
he challenges the IJ's and the BIA's denial of his
asylum application on the ground that a key provision of
IIRIRA plainly entitles him to seek asylum. He also contends
that, in any event, the DHS regulations are unreasonable,
insofar as they permit aliens subject to reinstated orders of
removal to obtain withholding of removal but not to apply for
asylum, because he contends that IIRIRA does not provide any
basis for drawing such a distinction between withholding of
removal and asylum. For the reasons that follow, we uphold
the agency decisions below.
I.
Immigration
law is distinguished by its complexity more than by its
clarity. We thus need to provide some background before we
turn to the merits of the legal issue that we must resolve.
To do so, we first describe the distinction between
withholding of removal and asylum. We then describe the
relevant parts of IIRIRA -- some of which might appear on
first glance to be in tension with one another -- and the
implementing regulations. Finally, we recount how Garcia came
to be subject to the reinstated order of removal that the IJ
and the BIA ruled stands in the way of his asylum request.
A.
The
distinction between withholding of removal and asylum is
subtle but important. We start by describing withholding of
removal.
Congress
codified the right to withholding of removal in 8 U.S.C.
§ 1231(b)(3)(A). IIRIRA § 305; see also INS v.
Aguirre-Aguirre, 526 U.S. 415, 420 (1999). This statute
directs, in categorical fashion, that, if the Attorney
General decides that an alien's "life or freedom
would be threatened" in the country to which he would be
removed "because of the alien's race, religion,
nationality, membership in a particular social group, or
political opinion, " then "the Attorney General may
not remove an alien to [that] country." 8 U.S.C. §
1231(b)(3)(A).[1]
The
roots of this statutory provision may be traced to the 1951
United Nations Convention Relating to the Status of Refugees,
189 U.N.T.S. 150 (July 28, 1951) (the "Refugee
Convention"). See INS v.
Cardoza-Fonseca, 480 U.S. 421, 429 (1987). The
United States acceded to the Refugee Convention by ratifying
the 1967 Protocol Relating to the Status of Refugees, 19
U.S.T. 6223 (Nov. 6, 1968) (the "Refugee
Protocol"). By doing so, the United States
"agree[d] to comply with the substantive provisions of
Articles 2 through 34" of the Refugee Convention.
Cardoza-Fonseca, 480 U.S. at 429. Article 33.1 of
the Refugee Convention provides: "No Contracting State
shall expel or return ('refouler') a refugee in any
manner whatsoever to the frontiers of territories where his
life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social
group or political opinion." 19 U.S.T at
6276.[2] Thus, 8 U.S.C. § 1231(b)(3)(A)
implements this "mandatory duty" of the United
States as a "contracting State[]" to the Refugee
Protocol. Cardoza-Fonseca, 480 U.S. at 429.
We now
turn to asylum. Congress codified the right to apply for
asylum in 8 U.S.C. § 1158(a)(1), which provides:
"Any 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 this section . . . ." IIRIRA § 604;
see also Aguirre-Aguirre, 526 U.S. at 420. Thus, 8
U.S.C. § 1158 lays out a "discretionary mechanism
which gives the Attorney General the authority to
grant the broader relief of asylum to refugees, "
Cardoza-Fonseca, 480 U.S. at 441 (emphasis in
original) -- that is, pursuant to 8 U.S.C. §
1101(a)(42)(A), aliens who can show a "well-founded fear
of persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion." See also 8 C.F.R. §§
208.13(b), 1208.13(b).
The
roots of this statutory grant of the right to apply for
asylum may also be traced to the Refugee Protocol, in which
the United States acceded to the Refugee Convention. In
particular, Article 34 of the Convention provides: "The
Contracting States shall as far as possible facilitate the
assimilation and naturalization of refugees." 19 U.S.T.
at 6276. And, as the Supreme Court has explained,
Congress's statutory mechanism for applying for asylum
implements Article 34's "precatory" language.
Cardoza-Fonseca, 480 U.S. at 441.
The
upshot of the domestic statutory provisions that implement
these two articles of the Refugee Convention is this: aliens
who can show a "clear probability" of persecution
-- that is, that "it is more likely than not that the
alien would be subject to persecution, " INS
v. Stevic, 467 U.S. 407, 424 (1984) -- are
"entitled to mandatory suspension of
deportation, " or, as it is now known, withholding of
removal, Cardoza-Fonseca, 480 U.S. at 444 (emphasis
in original). 8 U.S.C. § 1231(b)(3)(A). In contrast,
aliens "who can . . . show [only] a well-founded fear of
persecution" -- that is, refugees per the definition
laid out in 8 U.S.C. § 1101(a)(42)(A) -- "are not
entitled to anything."
Cardoza-Fonseca, 480 U.S. at 444 (emphasis in
original). Instead, pursuant to 8 U.S.C. § 1158, such
aliens merely "are eligible for the
discretionary relief of asylum." Id. (emphasis
in original); see also Aguirre-Aguirre, 526 U.S. at
420 ("[W]hereas withholding is mandatory unless the
Attorney General determines one of the exceptions applies,
the decision whether asylum should be granted to an eligible
alien is committed to the Attorney General's
discretion.").
In
Cardoza-Fonseca, the Court made clear that -- given
the differences between withholding of removal and asylum --
the standards governing the two were necessarily different.
480 U.S. at 449-50. Specifically, the clear-probability test
for triggering the United States' mandatory duty to
withhold removal is more demanding than the
"well-founded fear" test that must be satisfied to
trigger the Attorney General's exercise of his discretion
as to whether to grant asylum. Id.
Withholding
of removal and asylum also differ in another key respect:
they afford aliens distinct types of benefits. In particular,
asylum, though obtainable upon a less-demanding showing,
"affords broader benefits" to the recipient than
does withholding of removal. Cardoza-Fonseca, 480
U.S. at 428 n.6. As the Ninth Circuit summarizes:
Unlike an application for asylum . . . a grant of an
alien's application for withholding is not a basis for
adjustment to legal permanent resident status, family members
are not granted derivative status, and [the relief] only
prohibits removal of the petitioner to the country of risk,
but does not prohibit removal to a non-risk country.
Lanza v. Ashcroft, 389 F.3d 917,
933 (9th Cir. 2004) (quoting Castellano-Chacon
v. INS, 341 F.3d 533, 545 (6th Cir. 2003)
(second alteration in the original)). In addition, aliens
granted asylum may be issued a refugee travel document,
enabling them to travel outside of the United States and
subsequently return. By contrast, aliens who are merely
entitled to withholding of removal receive no such benefit. 8
C.F.R. §§ 223.1, 223.2. They are simply protected
from being sent back to their home country. Thus, an alien
who is entitled to withholding of removal may still have an
interest in seeking asylum, given the greater benefits it
affords an alien. See 8 U.S.C. §
1158(c)(1).[3]
Having
described the distinction between withholding of removal and
asylum, and the statutes that enable aliens to obtain each,
we need to discuss one final statutory provision that is of
direct relevance to the issue we confront here. 8 U.S.C.
§ 1231(a)(5) -- part of section 305 of IIRIRA -- states
that an alien subject to a reinstated order of removal
"is not eligible and may not apply for any relief under
. . . [chapter 12 of Title 8 of the U.S. Code], and the alien
shall be removed under the prior order at any time after the
entry." 8 U.S.C. § 1231(a)(5). This provision
matters here because, as the parties to this dispute agree,
asylum is a form of "relief" under chapter 12.
Thus,
the question arises as to how this seemingly sweeping
statutory bar to relief relates both to the seemingly
categorical grant of the right to seek asylum provided to
aliens in § 1158(a)(1) and to the directive to the
Attorney General to withhold removal in certain enumerated
circumstances that is set forth in § 1231(b)(3)(A).
After all, that latter provision also appears in chapter 12.
DHS,
which is now charged with administering IIRIRA, has offered
its answer to that question. It has done so in regulations
that attempt to harmonize the three statutory provisions --8
U.S.C. §§ 1258(a)(1), 1231(a)(5) and 1231(b)(3)(A)
-- along with the United States' obligations under the
Convention Against Torture ("CAT"). See United
Nations Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 95 (entered into force June 26,
1987); Regulations Concerning the Convention Against
Torture, 64 Fed. Reg. 8478 (Feb. 19, 1999); see also
Aliens and Nationality; Homeland Security; Reorganization of
Regulations, 68 Fed. Reg. 9824 (Feb. 28, 2003)
(transferring the functions of the Immigration and
Naturalization Service to the Department of Homeland Security
and recodifying the regulations).[4]
The
regulations do so as follows. First, 8 C.F.R. § 241.8(a)
requires that an alien "who illegally reenters the
United States after having been removed . . . shall be
removed from the United States by reinstating the prior
order." That subsection further provides that such an
alien "has no right to a hearing before an immigration
judge in such circumstances." Id.; see
also 8 C.F.R. § 1241.8(a).
Subsection
(e) of that regulation, however, then creates an
"[e]xception." It provides that an alien who
"expresses a fear of returning to the country designated
in" his reinstated removal order "shall be
immediately referred to an asylum officer for an interview to
determine whether the alien has a reasonable fear of
persecution or torture pursuant to § 208.31 of this
chapter." 8 C.F.R. § 241.8(e); see also 8
C.F.R. § 1241.8(e). The regulation referenced at the end
of this exception, 8 C.F.R. § 208.31(e), in turn
provides that:
If an asylum officer determines that an alien described in
this section has a reasonable fear of persecution or torture,
the officer shall so inform the alien and issue a Form I-863,
Notice of Referral to the Immigration Judge, for full
consideration of the request for withholding of removal
only.
(emphasis added); see also 8 C.F.R. §
1208.31(e).[5]
Thus,
under the regulations, an alien subject to a reinstated order
of removal may not apply for asylum. However, after such an
alien has expressed a fear of persecution and after an asylum
officer has determined that fear to be reasonable, the alien
is entitled to withholding of removal to his home country if
the Attorney General then decides that the alien's life
or freedom would be threatened in his home country because of
a protected ground.
B.
With
that legal background in place, we now turn to Garcia's
current plight. Garcia -- who speaks no English and only
minimal Spanish -- first entered the United States unlawfully
in 2004. Three years later, in 2007, immigration authorities
in the United States apprehended Garcia, detained him, and
then ordered him removed from this country. From all that the
record reveals, it appears that Garcia would have been
successful in obtaining asylum had he sought it at that time.
And, it appears, too, he may have been entitled to
withholding of removal. But, he did not request either asylum
or withholding of removal, apparently because of the language
barriers he faced and because he was uncounseled.
Accordingly, Garcia was removed to Guatemala in 2007.
After
returning to Guatemala, Garcia then entered the United States
unlawfully for a second time in February 2015. Once Garcia
had crossed the border into the United States, immigration
authorities detained him. Released on his own recognizance,
Garcia was permitted to travel to Massachusetts to stay with
family members. Garcia was informed about two months later
that his 2007 removal order would be reinstated. As the IJ
noted, after retaining counsel, Garcia "expressed a fear
of return to Guatemala on account of his ethnicity, family
membership, and religious beliefs, " and was referred to
an asylum officer pursuant to 8 C.F.R. §§ 241.8(e)
and 1241.8(e). See also 8 C.F.R. §§
208.16, 1208.16 (laying out procedures for consideration of
withholding of removal under 8 U.S.C. § 1231(b)(3)(A)
and under the CAT). The asylum officer conducted the required
interview and concluded that Garcia had met his burden of
showing a "reasonable fear of persecution." 8
C.F.R. §§ 241.8(e), 1241.8(e).
Thereafter,
Garcia's case was referred to an IJ. In an oral decision
issued on August 4, 2015, the IJ first concluded that Garcia,
whom the IJ found "credible, " had met his burden,
pursuant to 8 U.S.C. § 1231(b)(3)(A), of showing that
"future persecution is 'more likely than not' to
occur" in Guatemala and therefore granted Garcia's
application for withholding of removal. Specifically, the IJ
found that Garcia had experienced past persecution "on
account of [his] family membership as well as his ethnicity
inasmuch as [] Ladino [that is, mixed-race] soldiers, "
as well as government-affiliated paramilitary forces and
gangs, "had targeted his village, which was comprised
almost exclusively of Mayan indigenous individuals, for
retaliation for the belief that these individuals were aiding
or assisting in any way the guerilla movement during the
civil war." And, the IJ found, "based upon the
evidence . . . that the predominant Ladino element will not
assist the Mayan community in fighting off the Ladino outlaw
elements, " and thus that Garcia had shown "a
reasonable likelihood of persecution or harm in the future by
these same elements."
But, in
addition to seeking withholding of removal, Garcia had also
argued to the IJ that he was eligible to apply for asylum and
thus to receive the additional benefits that such relief
would afford him. Garcia based this argument on the text of 8
U.S.C. § 1158(a)(1), which, he argued, entitled even an
alien subject to a reinstated removal order to seek asylum.
In his
oral decision, the IJ rejected Garcia's argument that he
was eligible to seek asylum. The IJ held that asylum is a
form of "relief" provided by chapter 12 of Title 8
of the U.S. Code and thus that 8 U.S.C. § 1231(a)(5)
barred Garcia from applying for it. The IJ also held that the
DHS implementing regulations supported this conclusion. Thus,
the IJ concluded that, by virtue of Garcia's reinstated
removal order, and notwithstanding § 1158(a)(1), Garcia
was barred from seeking asylum, regardless of whether he was
entitled to withholding of removal.
Garcia
then appealed the IJ's oral ruling to the BIA. On
December 1, 2015, the BIA affirmed the IJ's decision in
all respects and remanded the case so that the IJ could
conduct certain background checks before ordering the
withholding of Garcia's removal. While awaiting the
results of the background checks, Garcia petitioned for
review in this court of the BIA's decision denying his
request to apply for asylum.
On July
6, 2016, while Garcia's petition was pending in this
court, the background checks were completed. At that point,
the IJ granted Garcia withholding of removal. In doing so,
the IJ also stated that the IJ's August 4, 2015 oral
decision, which had also denied Garcia's request to seek
asylum, would become the "official opinion in this
case."
Following
the IJ's July 6, 2016 order, Garcia petitioned this court
for review. Garcia also moved to consolidate that newly filed
petition for review with his pending petition for review of
the BIA's December 2015 ruling that also barred him from
seeking asylum. On August 18, 2016, we granted Garcia's
unopposed motion to consolidate his two petitions for review.
At oral
argument before this court concerning these consolidated
petitions, the government agreed with Garcia that the
IJ's July 2016 order, which had been issued after the
completion of the background checks, and which granted Garcia
withholding of removal but barred him from applying for
asylum, constituted a final order over which we have
jurisdiction. We also agree with Garcia on that point, and
so, our jurisdiction secure, see Cano-
Saldarriaga v. Holder, 729 F.3d
25, 27 (1st Cir. 2013), we proceed to the
merits.[6]
II.
Garcia's
right to apply for asylum under § 1158(a)(1) turns on
"questions implicating 'an agency's construction
of the statute which it administers.'"
Vásquez v. Holder, 635 F.3d
563, 567 (1st Cir. 2011) (quoting Aguirre-Aguirre,
526 U.S. at 424). We thus "apply the principles of
deference described in Chevron USA Inc. v.
Natural Resources Defense Council, Inc., 467 U.S.
837, 842 (1984)." Id. (quoting
Aguirre-Aguirre, 526 U.S. at 424) (brackets
omitted).
"We
first ask whether 'Congress has directly spoken to the
precise question at issue.'" Succar
v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005)
(quoting Chevron, 467 U.S. at 842). "If so,
courts, as well as the agency, 'must give effect to the
unambiguously expressed intent of Congress.'"
Id. (quoting Chevron, 467 U.S. at 842-43).
But if we "determine[] Congress has not directly
addressed the precise question at issue, " then we must
move on to the second step of the analysis. Chevron,
467 at 843. At this second step, "[we] do[] not simply
impose [our] own construction on the statute, as would be
necessary in the absence of an administrative
interpretation." Id. Rather, "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 (2005); see also
Succar, 394 F.3d at 23 ("If the statutory terms are
ambiguous, then the principle of Chevron deference
to the Attorney General's choice must apply.")
A.
Garcia
contends that § 1158(a)(1) unambiguously grants him the
right to seek asylum. He thus argues that he wins at
Chevron's first step.
In
pressing this argument, Garcia acknowledges that there is
another provision of IIRIRA that could be read to take away
what § 1158(a)(1) otherwise appears to give: §
1231(a)(5). That provision expressly bars aliens subject to
reinstated orders of removal from seeking "any
relief" available under chapter 12 of Title 8 of the
U.S. Code, and Garcia does not dispute that asylum is a type
of relief that is available under that chapter. 8 U.S.C.
§ 1231(a)(5). Nevertheless, Garcia argues that §
1158(a)(1) unambiguously creates an exception to the bar that
§ 1231(a)(5) otherwise appears to impose.[7]
In
making this argument, Garcia cannot -- and does not --
contend that § 1158(a)(1) actually repealed the bar that
§ 1231(a)(5) appears to establish. Both provisions were
enacted on the same day as part of the same statute: IIRIRA.
Garcia instead argues that, in enacting IIRIRA, Congress
changed what had been the relevant text of § 1158(a)(1).
And Garcia argues that Congress did so in a manner that
clearly reflected an intention to carve out an exception to
§ 1231(a)(5) for aliens seeking asylum.
Garcia
points out that, pre-IIRIRA, § 1158(a)(1) referred only
to "an" alien being entitled to seek
asylum "irrespective of [the alien's] status."
Refugee Act of 1980, Pub. L. 96-212, § 208, 94 Stat.
102, 105 (emphasis added). But, Garcia notes, IIRIRA changed
the wording of the text. Section 1158(a)(1) now refers to
"any alien, " while keeping the sweeping
phrase "irrespective of [the alien's] status."
IIRIRA § 604 (emphasis added). Garcia contends that this
change from "an" to "any" clearly shows
that Congress intended the broad grant of the right to seek
asylum set forth in § 1158(a)(1) to take precedence over
§ 1231(a)(5)'s seemingly contradictory
bar.[8]
We do
not agree. As a matter of grammar, the word "any"
is not clearly more sweeping than is the word "an."
Thus, the change in wording need not be understood to reflect
Congress's intention that § 1158(a)(1) trumps the
bar that § 1231(a)(5) otherwise imposes. We are also
reluctant to conclude that, insofar as "any" might
be thought to be somewhat more sweeping than "an, "
Congress used the subtle stratagem of replacing one
indefinite article with a different one to signal its
unambiguous intent to make an exception to an otherwise
categorical bar that Congress set forth the very same day in
a different provision of the very same statute. See
Barraford v. T & N Ltd., 778 F.3d
258, 266 (1st Cir. 2015) ("It has been said of statutes
that one does not normally hide elephants in
mouseholes." (citing Whitman v.
Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468
(2001))).
In
addition, Garcia's reading of § 1158(a)(1) is not
necessary to ensure that one of its words -- "any"
-- means what it says. Even on Garcia's favored reading,
the word "any" in § 1158(a)(1) would not mean
literally "any." Section 1158(a)(2) itself makes
clear that certain types of aliens are not eligible to apply
for asylum, even though § 1158(a)(1) states that
"any" alien may do so. See 8 U.S.C. §
1158(a)(2).[9]
Garcia
does argue that § 1158(a)(1) should be read to override
all exceptions to its grant of the right to seek asylum
except for the ones that are expressly set forth in §
1158 itself. But, even if Garcia's suggested reading is a
possible one, we do not see why it is compelled. As the Fifth
Circuit observed in considering and rejecting this very same
argument, Congress has "many options in revising
statutory schemes, " and "[a]dopting a clear
limitation in one section [i.e., § 1231(a)(5)] without
amending another section specifically dealing with the same
subject [i.e., § 1158] is one such option."
Ramirez-Mejia v. Lynch, 794 F.3d
485, 490 (5th Cir. 2015), reh'g en banc denied,
813 F.3d 240 (5th Cir. 2016); see also Perez-Guzman
v. Lynch, 835 F.3d 1066, 1076 (9th Cir.
2016), reh'g and reh'g en banc denied (No.
13-70579, Apr. 26, 2017) ("In adopting both changes
simultaneously, Congress effectively adopted 'a clear
limitation in one section' -- § 1231(a)(5) --
'without amending another section' dealing with the
same subject matter." (quoting Ramirez-Mejia,
794 F.3d at 490)).
Moreover,
reading § 1231(a)(5) to set forth an additional
"statutory limit, " Ramirez-Mejia, 794
F.3d at 490, does not render superfluous § 1158(a)(2),
which conditions asylum eligibility on compliance with
certain requirements, see 8 U.S.C. §
1158(a)(2). In addition, the limits on asylum eligibility
that § 1158(a)(2) expressly sets forth do not render
§ 1231(a)(5) redundant if it, too, limits an alien's
right to seek asylum. Those express limits in §
1158(a)(2) do not concern the eligibility to seek relief of
aliens subject to reinstated removal orders, while §
1231(a)(5) does.
Shifting
course, Garcia contends that § 1158(a)(1) must be read
unambiguously to trump § 1231(a)(5), because the former
provision is the more specific provision of the two. But, as
the Ninth Circuit has noted, the "difficulty" is
that both § 1158(a)(1) and § 1231(a)(5) are
"specific in certain respects and general in
others." Perez-Guzman, 835 F.3d at 1075. It is
thus just as possible, as a matter of text alone, to say that
§ 1231(a)(5) imposes a specific check on §
1158(a)(1)'s general grant of eligibility to apply for
asylum as it is to say that § 1158(a)(1) carves out a
specific exception to the general bar to relief that applies
to aliens subject to reinstated removal orders. See
id. at 1075-76 (noting that § 1158(a)(1) is
"more specific in that it speaks narrowly to the rules
governing asylum applications, " while § 1231(a)(5)
"is more specific in that it speaks directly to the
particular subset of individuals . . . who are subject to
reinstated removal orders").
Garcia's
final textual argument relies on § 1158(a)(2)(D). That
provision permits individuals who have been previously denied
asylum to file a second asylum application if they can
demonstrate "either the existence of changed
circumstances which materially affect . . . eligibility for
asylum or extraordinary circumstances relating to the delay
in filing an application." 8 U.S.C. §
1158(a)(2)(D). Garcia argues that reading § 1231(a)(5)
to bar aliens subject to reinstated removal orders from
applying for asylum would nullify § 1158(a)(2)(D).
But
Garcia is mistaken on this point. Many aliens who are not
subject to reinstated orders of removal may benefit from
§ 1158(a)(2)(D). As a result, § 1231(a)(5), insofar
as it limits § 1158(a)(2)(D), does not thereby render
that provision a nullity. See Perez-Guzman, 835 F.3d
at 1082 (noting that it is not "necessarily" the
case that "any individual to whom § 1158(a)(2)(D)
applies will . . . be subject to a reinstated removal
order").
In
light of this complex statutory scheme, we cannot say that
§ 1158(a)(1) unambiguously grants Garcia the right to
seek asylum, and we reject his contention that he wins at
Chevron's first step.
B.
Because
the relevant statutory provisions do not clearly compel
Garcia's reading, we ordinarily would move on from
Chevron's first step to see whether Garcia could
win at step two of the Chevron analysis. The
government argues, however, that we may not do so because the
relevant provisions in IIRIRA, properly read, clearly bar
aliens subject to reinstated orders of removal from seeking
asylum. The government thus argues not only that Garcia loses
at step one of Chevron but also that the government
prevails at that same step.
In so
arguing, the government contends that "asylum" is
plainly a form of "relief" to which §
1231(a)(5)'s bar applies. The government further contends
there is no conflict between §§ 1231(a)(5) and
1158(a)(1), because the former is more specific than the
latter and thus the former must take precedence. And,
finally, the government argues that its reading of
"relief" to encompass asylum comports with its
conclusion that § 1231(a)(5) does not bar aliens subject
to reinstated orders of removal from having their removal
withheld pursuant to § 1231(b)(3)(A). And that is
because, the government contends, withholding of removal
differs from asylum because withholding of removal provides
"protection" rather than "relief."
Accordingly, the government contends that the statutes
clearly compel the interpretation reflected in the
regulations, in which aliens subject to reinstated orders of
removal may not apply for asylum but may be entitled to
withholding of removal.
A
number of circuits have agreed with the government. They have
held that § 1231(a)(5) does clearly bar aliens subject
to reinstated orders of removal from seeking asylum,
notwithstanding § 1158(a)(1). See
Jimenez-Morales v. U.S. Att'y
Gen., 821 F.3d 1307, 1310 (11th Cir. 2016);
Ramirez-Mejia, 794 F.3d at 489-90. But, there is at
the least a surface tension between the two provisions --
with § 1231(a)(5) seemingly barring aliens subject to
reinstated orders of removal from seeking asylum and §
1158(a)(1) seemingly conferring upon any alien (save for
those expressly mentioned in that provision) the right to
seek asylum. And, as the Ninth Circuit has noted, insofar as
these provisions conflict with one another, it is by no means
clear which is the more specific of the two. See
Perez-Guzman, 835 F.3d at 1075-76.
Thus,
rather than deciding the case for the government at step one
of Chevron -- an issue on which we take no view --
we proceed to Chevron's second
step.[10] At step two, we must accept the
agency's regulatory choice as to how to resolve an
ambiguity in a statute that the agency administers -- such as
the putative ambiguity presented by the tension we have
identified -- if the choice it makes is a reasonable one.
See Nat'l Ass'n of Home Builders v.
Defs. of Wildlife, 551 U.S. 644, 661, 666-67 (2007)
(applying Chevron deference to "mediate a clash
of seemingly categorical -- and, at first glance,
irreconcilable -- legislative commands"). And we
conclude that the agency's choice in this case is one
that we must accept, because the agency's regulations
reasonably balance the various statutory provisions by
"establish[ing] a new screening process to rapidly
identify and assess both claims for withholding of removal
under [§ 1231(b)(3)] and for protection under the [CAT]
. . . without unduly disrupting the streamlined removal
processes applicable to" aliens subject to reinstated
removal orders. Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. at 8479.
In
reaching this conclusion, we recognize, as Garcia correctly
points out, that courts, the BIA, and DHS have at times used
the word "relief" -- which is the key word in
§ 1231(a)(5) -- to refer to both asylum and withholding
of removal.[11] We thus understand the basis for
Garcia's contention that the agency's regulatory
choice is arbitrary because it permits aliens to obtain one
type of "relief" under chapter 12 --withholding of
removal -- but not another -- asylum -- even though the
relevant statutory provision, § 1231(a)(5), bars aliens
subject to reinstated orders of removal from seeking the
"relief" chapter 12 affords. Garcia therefore
argues that the only coherent interpretation is one in which
the agency affords withholding of removal the same treatment
as asylum. And since the agency permits aliens subject to
reinstated orders of removal to be eligible for the former,
Garcia contends that such aliens must be permitted to apply
for latter, too.
The
problem with Garcia's argument is that the relevant
question at Chevron's second step is not whether
it is possible to characterize both asylum and withholding of
removal as forms of "relief, " such that each then
would be subject to § 1231(a)(5)'s statutory bar or
neither would be. The relevant question instead is whether it
is unreasonable to distinguish between asylum and withholding
of removal for purposes of applying that bar. And, in our
view, it is not. See Perez-Guzman, 835 F.3d at 1081
(holding that "it is not unreasonable to conclude
Congress intended to bar . . . persons in reinstated removal
proceedings [from applying for asylum] while preserving
relief [that is, withholding of removal] for individuals able
to meet the higher standards for withholding of removal and
CAT relief").
For one
thing, the distinction that the government posits in
defending the regulations, such that asylum is a form of
"relief" that § 1231(a)(5) bars while
withholding of removal is a form of "protection"
that § 1231(a)(5) does not by its terms reach,
reasonably tracks the distinct ways in which the Supreme
Court has described asylum and withholding of removal in
construing the United States' obligations under the
Refugee Protocol. As we noted at the outset, the Court has
explained that, under the Refugee Protocol, "those who
can show a clear probability of persecution are
entitled to mandatory suspension of deportation . .
. while those who can only show a well-founded fear of
persecution are not entitled to anything, but are
eligible for the discretionary relief of
asylum." Cardoza-Fonseca, 480 U.S. at 444
(emphases in original). Thus, withholding of removal has long
been understood to be a mandatory protection that must be
given to certain qualifying aliens, while asylum has never
been so understood.
The
text of the relevant provisions of IIRIRA provides further
support for distinguishing between asylum and withholding of
removal in construing the scope of the bar that §
1231(a)(5) imposes. For example, § 1231(b)(3)(A), unlike
§ 1158(a)(1), does not by its terms expressly purport to
permit an alien to do what § 1231(a)(5) appears
expressly to forbid: "apply for . . . relief" under
chapter 12. Rather, § 1231(b)(3)(A) is styled as a
limitation on the Attorney General's removal authority.
That provision, unlike § 1158, thus appears simply to
guarantee that an alien facing persecution or torture will
receive protection from being returned to the alien's
home country.[12]
The
agency's choice to treat asylum, but not withholding of
removal, as subject to the bar to applying for
"relief" set forth in § 1231(a)(5) also
comports with the relevant legislative history, even if it is
not compelled by it. By reading "relief" to
encompass asylum, the agency's regulations give effect to
Congress's clear intention, in enacting §
1231(a)(5), to "strengthen the reinstatement provision
and to make it operate more efficiently."
Lattabv.Ashcroft, 384 F.3d 8, 19
(1st Cir. 2004). IIRIRA did so by "enlarg[ing] the class
of illegal reentrants whose orders may be reinstated and
limit[ing] the possible relief from a removal order available
to them." Fernandez-Vargasv.Gonzales, 548 U.S. 30, 33 (2006). But, the
legislative history does not show that Congress intended for
§ 1231(a)(5) to be an all-encompassing bar on the
ability of aliens subject to reinstated removal orders to
remain in the United States. See S. Rep. 104-249, at
7 (1996) (emphasizing that, although "[a]liens who
violate U.S. immigration law should be removed from this
country as soon as possible, " that broad aim was
subject to "[e]xceptions . . . specified in the statute
and approved by the Attorney General"); H.R. Rep.
104-469, pt. 1, at 107-08 (1996) (noting that although
"[r]emoval of aliens who enter the United States
illegally . . . is an all-too-rare event, " and
therefore that "[r]elief from deportation will be more
strictly limited, " aliens subject to the new
"streamlined appeal and removal process" now laid
out in ยง 1231(a)(5) could nevertheless "establish .
. . that they are entitled to be admitted or to remain in the
United States"). Thus, we cannot say that the agency
acted ...