79 F.3d 932 (9th Cir. 1996), 94-70439, Yang v. I.N.S.

Docket Nº:94-70439.
Citation:79 F.3d 932
Party Name:D.A.R. 3456 Pao YANG; Ying Yang; Jimmy Yang; Bao Yang; Seyar Yang; Phonesavanne Yang, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:March 27, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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79 F.3d 932 (9th Cir. 1996)

D.A.R. 3456

Pao YANG; Ying Yang; Jimmy Yang; Bao Yang; Seyar Yang;

Phonesavanne Yang, Petitioners,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-70439.

United States Court of Appeals, Ninth Circuit

March 27, 1996

Argued and Submitted Dec. 7, 1995.

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Donald L. Ungar, Simmons, Ungar, Helbush, Steinberg & Bright, San Francisco, California, for petitioners.

Alison R. Drucker and Patricia Connally, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: BROWNING, CANBY and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

The petitioners were denied asylum in the United States under a regulation which categorically precludes asylum for refugees who have "firmly resettled" in another country. See 8 C.F.R. § 208.14(c)(2) (1994). 1 They argue that the regulation is ultra vires, and ask us to remand their cause to the Immigration and Naturalization Service ("INS") for consideration on the merits. We have jurisdiction over this timely appeal pursuant to 8 U.S.C. § 1105a(a). Finding that the regulation does not violate its enabling statute, we deny the petition.

I

The petitioners are a Hmong family from Laos. They claim that during the Vietnam War, members of their family cooperated with the American military and CIA against the communists. In return, they say, they received promises of asylum in the United States.

When the Pathet Lao came to power in Laos in 1975, petitioner Pao Yang, his wife Ying, and others of their extended family fled to Thailand. They claim that they immediately sought passage to the United States, but that the American government denied their request for asylum. For three years the family remained in a Thai refugee camp, until the French government offered them admission to France as refugees. The Yangs accepted the French offer, they say, because Thai authorities threatened them with deportation to Laos if they refused.

Pao and Ying Yang thus took refuge in France, where they remained for fourteen years and had four children, who are also petitioners in this case. In spite of this long period of residence in France, the BIA determined that under French law the family remained foreign refugees rather than French citizens or permanent residents. It is unclear whether the Yangs either applied or became eligible for permanent residence in France. In any event, they maintain that they never intended to remain in France. Pao Yang attests that the family considered

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France merely a stopping point on their way to the United States, but that the French government refused them travel documentation until 1991. Once they obtained their documents, the parents came to the United States as visitors. The children followed.

The Yangs overstayed their visas, and the INS ordered them to show cause. On January 28, 1994, an immigration judge ("IJ") found them deportable under section 241(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(1)(B). In reviewing their application for asylum under section 208 of the INA, 8 U.S.C. §§ 1158(a), (c), the IJ determined that the Yangs were ineligible for relief under the accompanying regulations, which deny asylum to applicants who have "firmly resettled" in a third country. See 8 C.F.R. §§ 208.14(c)(2) (denying asylum to applicants firmly resettled), 208.15 (defining "firmly resettled").

The Yangs conceded arguendo that they were at one time firmly resettled in France, but denied that they necessarily retained the right under French law to return to France. Furthermore, returning to Laos was not an option. According to an INS report, the Yangs faced continuing threats to "life or freedom" in Laos. On the basis of this advice, the IJ withheld the family's deportation to Laos under section 243(h) of the INA, 8 U.S.C. § 1253(h), and designated France as the family's destination of deportation or, in the alternative, voluntary departure.

The Yangs appealed to the Board of Immigration Appeals ("BIA") solely on the basis that regulation 208.14(c)(2) was ultra vires. The BIA summarily dismissed the appeal on June 28, 1994. The Yangs renew the claim on appeal to this court. We review de novo the BIA's determination of this purely legal question regarding the requirements of the Immigration and Nationality Act. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995).

II

Under INS regulation 208.14(c)(2), the finding that an alien has "firmly resettled" in a third country prior to his or her arrival in the United States bars that alien's eligibility for asylum. 8 C.F.R. § 208.14(c)(2). The question presented in this case is whether this regulation violates its enabling statute, section 208 of the INA, 8 U.S.C. § 1158(a), 2 which permits the Attorney General to grant asylum as a matter of discretion.

Section 208 gives the Attorney General discretion to grant asylum to aliens who meet a statutory definition of eligibility. In practice this decision is delegated to the INS, see Patel v. INS, 638 F.2d 1199, 1201 n. 1 (9th Cir.1980), which considers asylum applications in two stages. See Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995) (describing two-stage procedure). At the first stage, the INS inquires into eligibility. An alien is eligible if he or she is determined to be a "refugee" within the meaning of INA section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). 3 A

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finding of eligibility merely entitles the alien to submit an application for asylum; it does not guarantee that asylum will be granted.

At the second stage, the INS makes a discretionary decision on the application. Section 208 does not explicitly limit or structure this exercise of discretion, except to disqualify any alien "convicted of an aggravated felony." 8 U.S.C. § 1158(d). 4 It states only that "an [eligible] alien may be granted asylum in the discretion of the Attorney General." 8 U.S.C. § 1158(a) (emphasis added). As we have previously noted, this language amounts to a "broad delegation of power" to the Attorney General. Komarenko v. INS, 35 F.3d 432, 436 (9th Cir.1994).

The question before us is whether the INS may exercise this discretion by creating a rule that automatically excludes a particular class of applicants. Under the INS regulations in effect until October 1, 1990, the INS was to evaluate an asylum application by weighing against each other a number of equitable factors. Matter of Pula, 19 I. & N. Dec. 467, 473-74 (BIA 1987) (listing the factors to be considered for grant of asylum); Kazlauskas, 46 F.3d at 906 (approving and applying the Pula standards). These factors had no fixed weight, but were to be taken together and viewed in the "totality of the circumstances." Pula, 19 I. & N. Dec. at 474. The October 1990 regulations, which are at issue in this appeal, follow the Pula approach, but add to the calculus categorical bars to asylum for aliens in three categories, 5 one of which covers aliens "firmly resettled" in a third country. 8 C.F.R. § 208.14(c)(2). Under the new regulation, a finding of firm resettlement trumps any other equities in the applicant's favor. The Yangs argue that this rule contravenes the INA by precluding the INS from exercising its discretion in individual cases.

We must reject the argument that regulation 208.14(c)(2) exceeds the authority of the Attorney General if we find that the regulation has a "reasonable foundation ... that is, if it rationally pursues a purpose that it is lawful for the INS to seek." Reno v...

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