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Cazun v. Attorney General United States of America

United States Court of Appeals, Third Circuit

May 2, 2017


          Argued on September 22, 2016

         On Petition for Review of an Order of the Board of Immigration Appeals (Agency No.: A206-498-210) Immigration Judge: Honorable Walter A. Durling

          Matthew J. Archambeault Corpuz & Archambeault, Charles Roth Keren Zwick (ARGUED) National Immigrant Justice Center, Counsel for Petitioner.

          Jefferson B. Sessions III United States Attorney General Benjamin C. Mizer Principal Deputy Assistant Attorney General Shelley R. Goad Assistant Director Laura Halliday Hickein Thomas W. Hussey Carmel A. Morgan (ARGUED), Civil Division United States Department of Justice Office of Immigration Litigation, Counsel for Respondent.

          Rebecca A. Sharpless Caroline McGee, Law Student Immigration Clinic University of Miami School Law, Dree K. Collopy Benach Collopy, LLP., Counsel Amicus for Petitioner.

          Before: MCKEE, Chief Judge [*], HARDIMAN and RENDELL, Circuit Judges.


          RENDELL, Circuit Judge.

         Yoselin Linet Martinez Cazun, a native and citizen of Guatemala, entered the United States illegally in 2014. She was detained and removed under an expedited removal order. Later that year, she attempted to re-enter the United States, was detained again, and her previous removal order was reinstated. When she attempted to apply for asylum, the Board of Immigration Appeals ("BIA") held that she was statutorily ineligible to apply because her previous order of removal had been reinstated. Cazun appeals that ruling.

         This case thus presents a question that many of our sister circuits have already answered in the negative: may an alien subject to a reinstated removal order apply for asylum? Because we find that Congress has not spoken clearly on the issue in the relevant statute, we will give Chevron deference to the agency's reasonable statutory interpretation that aliens subject to reinstated removal orders are ineligible to apply for asylum.

         I. Background

         A. Factual Background

         In March 2014, Cazun fled her native Guatemala following threats against her life by unknown persons. Upon arrival in the United States, Cazun was detained by immigration authorities. Because Cazun expressed a fear of returning to Guatemala, an asylum officer interviewed her. The asylum officer made a negative credible fear determination, and an Immigration Judge ("IJ") affirmed that decision. Thus, an expedited order of removal was issued to Cazun, and she returned to Guatemala.

         Upon Cazun's return to Guatemala, her circumstances grew more dire. The head of a drug trafficking gang threatened, tortured, and sexually assaulted her.[1] To escape, Cazun fled again to the United States, this time with her two-year-old son. On her attempted re-entry, Cazun was detained by Border Patrol.

         After determining that Cazun had already been removed from the United States once before, the Department of Homeland Security ("DHS") notified Cazun that it intended to reinstate her previously entered removal order. Through this reinstatement process, the DHS would simply re-execute her previous removal order and deport her rather than initiating an entirely new removal process. But before deportation, Cazun expressed fear of returning to Guatemala, so she was interviewed by an asylum officer.[2] The asylum officer made a negative reasonable fear determination, and an IJ affirmed that decision.

         Subsequently, but still before deportation, Cazun consulted counsel and urged that she had been unable to reveal the full details of her suffering in her previous interview due to the psychological trauma she had endured in Guatemala. Consequently, she obtained a new interview with an asylum officer. At this interview, Cazun described being sexually assaulted, tortured, and facing threats against her life and the life of her son. The asylum officer concluded that Cazun's testimony was credible and that it established a reasonable fear of persecution. But because Cazun's previous removal order had been reinstated, she was placed in hearings before an IJ to determine her eligibility for withholding of removal and Convention Against Torture (CAT) protection only.

         The IJ granted Cazun withholding of removal and protection under the regulations implementing obligations under the CAT, but would not consider Cazun's asylum request.[3] He stated that under current statutes and regulations, Cazun was ineligible to apply for asylum due to her reinstated removal order.[4]

         Cazun appealed to the BIA, which agreed with the IJ that Cazun was ineligible for asylum. The BIA based its decision on 8 U.S.C. § 1231(a)(5), which states that aliens like Cazun who are subject to a reinstated removal order are "not eligible and may not apply for any relief under [8 U.S.C. Ch. 12]." A.R. 3. The BIA further cited applicable regulations of the Attorney General that allow "an alien fearing persecution to apply for withholding of removal only." A.R. 3. (emphasis added) (citing 8 C.F.R. §§ 1208.31(e), 1208.31(g)(2); 1241.8(e)). Cazun timely appealed the BIA's ruling to this Court, urging that she is eligible for asylum pursuant to the asylum provision, and it should apply notwithstanding her reinstated removal order.

         B. Statutory Background

         The issue presented by Cazun's appeal arises from two separate but related statutes: 8 U.S.C. § 1158, the asylum statute, and 8 U.S.C. § 1231(a)(5), the reinstatement bar.[5]

         i. Asylum Statute

         The initial version of § 1158 was enacted by the Refugee Act of 1980, affording "an alien" the right to apply for asylum "irrespective of immigration status." See Refugee Act of 1980, Pub. L. No. 96-212, § 208 (codified as amended at § 1158). "The purpose of the [Act] . . . was 'to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States.'" Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir. 1996) (quoting Pub. L. No. 96-212, tit. I, § 101(b), 94 Stat. 102 (1980)).

         In 1996, Congress altered the statutory scheme, [6]enacting the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, Div. C, 110 Stat. 3009. IIRIRA preserved and in many ways replicated the initial version of § 1158. In its updated form, § 1158(a)(1) instructed that "[a]ny alien who is physically present in the United States . . . irrespective of such alien's status, may apply for asylum in accordance with this section."

         Despite this seemingly broad guarantee, Congress carved out exceptions for several classes of aliens making them statutorily ineligible to apply for asylum: those who could be safely resettled into another country, see § 1158(a)(2)(A), those who failed to timely apply, see § 1158(a)(2)(B), and those previously denied asylum, see § 1158(a)(2)(C). However, even in the face of these exceptions, § 1158(a)(2)(D) created an exception to the exceptions: despite a previous denial of asylum or tardy asylum application, an alien could apply if she could demonstrate "changed circumstances which materially affect [her] eligibility for asylum or extraordinary circumstances relating to the delay in filing an application."

         ii. Reinstatement

         IIRIRA also altered the effect of a previously entered removal order. Before IIRIRA, previous removal orders were not reinstated against aliens who re-entered the country. Instead, these aliens were placed in the same removal proceedings as other aliens who had not previously been removed. Reinstatement of a previous removal order was reserved for only a subset of individuals. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33-35 (2006).

         But in IIRIRA, Congress hardened the effect of a reinstated removal order. As the Supreme Court noted, in enacting this provision Congress "toed a harder line" with respect to reinstatement. Id. at 34. The Act broadened the applicability of reinstatement, and it "explicitly insulate[d] the removal orders from review, and generally foreclose[d] discretionary relief from the terms of the reinstated order." Id. at 34-35.

         The new reinstatement provision reads:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date 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 reentry.

§ 1231(a)(5) (emphasis added). "[T]his chapter" refers to Chapter 12 of Title 8 of the U.S. Code, which contains both the asylum statute and the reinstatement bar.

         iii. Attorney General's Interpretation of the Statutory Scheme

         Three years after Congress enacted IIRIRA, the Attorney General promulgated 8 C.F.R. § 1208.31(e), [7]instructing that "[i]f an asylum officer determines that an alien [subject to a reinstated removal order] has a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a . . . [r]eferral to [an] Immigration Judge, for full consideration of the request for withholding of removal only." (emphasis added).

         The Attorney General clarified that under the regulations aliens subject to reinstated removal orders were "ineligible for asylum" but "may . . . be entitled to withholding of removal" or CAT protection. Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999). This distinction between withholding of removal and asylum for those subject to reinstated removal orders "allow[ed] for the fair and expeditious resolution of . . . claims without unduly disrupting the streamlined removal process applicable to . . . aliens [subject to reinstated removal orders]." Id. at 8479.[8] In brief, the Attorney General determined that the statutory scheme forbade aliens subject to reinstated removal orders from applying for asylum, but allowed such aliens withholding of removal. The BIA relied on this interpretation in deciding Cazun's case.

         II. Discussion[9]

         The issue before us is whether an alien whose removal order is reinstated is statutorily ineligible to apply for asylum. We must reconcile two apparently conflicting provisions of the INA, both enacted on the same day. On the one hand, § 1158(a)(1) allows "any alien" "irrespective of such alien's status" to apply for asylum. On the other hand, § 1231(a)(5) instructs that an alien subject to a reinstated removal order "is not eligible and may not apply for any relief under this chapter."

         We are not the first court to consider the effect of a reinstated removal order. To date, four Courts of Appeals have addressed this question. Each has concluded that individuals subject to reinstated removal orders may not apply for asylum, though the courts have parted ways in their rationales.[10] Three of these courts have found the reinstatement bar clear on its face.[11] But these courts "mention[] [the asylum provision] only in passing, or not at all."[12] Only the Ninth Circuit explicitly considered the interplay between the asylum provision and the reinstatement bar. Following the analytic path set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), that Court determined that the statutory scheme was ambiguous, and that the Attorney General's interpretation forbidding aliens subject to reinstated removal orders from applying for asylum to be reasonable. Perez-Guzman v. Lynch, 835 F.3d 1066, 1077, 1082 (9th Cir. 2016), reh'g and reh'g en banc denied (9th Cir. 2017). We agree.

         Using the same Chevron framework that the Ninth Circuit employed, we first assess whether "Congress has directly spoken to the precise question at issue." Chevron, 467 U.S. at 842. If we can discern congressional intent using the plain text and traditional tools of statutory construction, our inquiry ends: we give effect to Congress's intent. See id. at 843. If, however, the statute remains ambiguous, we defer to the agency's reasonable interpretation of the statutory scheme, even if the interpretation is not ...

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