Garcia v. Sessions

• Citation: 856 F.3d 27
• Decision Date: 03 May 2017
• Docket Number: Nos. 15-2571,16-1964,s. 15-2571
• Parties: Victor Garcia GARCIA, Petitioner, v. Jefferson B. SESSIONS, III, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

856 F.3d 27

Victor Garcia GARCIA, Petitioner,

v.Jefferson B. SESSIONS, III, Attorney General of the United States,^* Respondent.

Nos. 15-2571

16-1964

United States Court of Appeals, First Circuit.

May 3, 2017

Nancy J. Kelly , with whom John Willshire Carrera , the Harvard Immigration & Refugee Clinic , and Greater Boston Legal Services , Boston, MA, 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, 119 S.Ct. 1439, 143 L.Ed.2d 590 (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, 107 S.Ct. 1207, 94 L.Ed.2d 434 (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, 107 S.Ct. 1207. 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, 107 S.Ct. 1207.

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, 119 S.Ct. 1439. 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, 107 S.Ct. 1207 (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, 107 S.Ct. 1207.

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, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) —are "entitled to mandatory suspension of deportation," or, as it is now known, withholding of removal, Cardoza-Fonseca , 480 U.S. at 444, 107 S.Ct. 1207 (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, 107 S.Ct. 1207 (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, 119 S.Ct. 1439 ("[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, 107 S.Ct. 1207. 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, 107 S.Ct. 1207. 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...