on September 22, 2016
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.
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.
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.
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.
Cazun's return to Guatemala, her circumstances grew more
dire. The head of a drug trafficking gang threatened,
tortured, and sexually assaulted her. 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.
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. The asylum officer made a
negative reasonable fear determination, and an IJ affirmed
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)
granted Cazun withholding of removal and protection under the
regulations implementing obligations under the CAT, but would
not consider Cazun's asylum request. He stated that
under current statutes and regulations, Cazun was ineligible
to apply for asylum due to her reinstated removal
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
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
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)).
1996, Congress altered the statutory scheme, 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."
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
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).
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.
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
Attorney General's Interpretation of the Statutory Scheme
years after Congress enacted IIRIRA, the Attorney General
promulgated 8 C.F.R. § 1208.31(e), 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).
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. 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.
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."
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. Three of these courts have found the
reinstatement bar clear on its face. But these courts
"mention [the asylum provision] only in passing, or
not at all." 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.
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 ...