869 F.3d 1176 (10th Cir. 2017), 15-9572, R-S-C v. Sessions

• Judge: Before EBEL and LUCERO, Circuit Judges.[1]
• Parties: R-S-C, Petitioner, v. JEFFERSON B. SESSIONS, III, United States Attorney General, [*] Respondent. AMERICAN IMMIGRATION LAWYERS ASSOCIATION; NATIONAL IMMIGRANT JUSTICE CENTER, Amici Curiae
• Citation: 869 F.3d 1176
• Docket Number: 15-9572
• Date: 06 September 2017
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1176

869 F.3d 1176 (10th Cir. 2017)

R-S-C, Petitioner,

v.

JEFFERSON B. SESSIONS, III, United States Attorney General, ^[*] Respondent.

AMERICAN IMMIGRATION LAWYERS ASSOCIATION; NATIONAL IMMIGRANT JUSTICE CENTER, Amici Curiae

No. 15-9572

United States Court of Appeals, Tenth Circuit

September 6, 2017

Petition for Review from the Board of Immigration Appeals.

Maria E. Andrade, Andrade Legal, Boise, Idaho, for Petitioner.

Corey L. Farrell, Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Terri J. Scadron, Assistant Director, with him on the briefs), Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington D.C., for Respondent.

Mark Barr, Lichter Immigration, Denver, Colorado, Charles Roth and Zeren Zwick, National Immigrant Justice Center, Chicago, Illinois, filed a for Amici Curiae.

Before EBEL and LUCERO, Circuit Judges.¹

OPINION

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EBEL, Circuit Judge.

There is an apparent conflict, which is squarely presented in this case, between two provisions of the Immigration and Nationality Act (INA). The asylum section provides that " [ a ] ny alien. . . , irrespective of such alien's status, may apply for asylum [.]" 8 U.S.C. § 1158(a)(1) (emphasis added). By contrast, the reinstatement provision mandates that a previously deported alien who illegally reenters the United States will have his prior removal order reinstated and " is not eligible and may not apply for any relief. . . ." Id. § 1231(a)(5) (emphasis added). Tasked with administering these provisions, the Attorney General has determined that the latter subsection prevails--an illegal reentrant with a reinstated removal order is not eligible for asylum relief. 8 C.F.R. § 1208.31(e), (g)(2)(i).

R-S-C illegally reentered the United States after having been removed and her prior removal order was reinstated, thus under the Attorney General's interpretation of the INA, she cannot apply for asylum. She now challenges the Attorney General's regulations as inconsistent with the INA's asylum guarantee. We conclude that Congress has not clearly expressed whether aliens governed by the reinstatement provision may apply for asylum. However, the Attorney General's regulations are consistent with a reasonable interpretation of the statutory scheme, so they are entitled to administrative deference. Accordingly, we DENY the petition for review.

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I. BACKGROUND

A. Legal Background

1. International Agreements and Statutes

The United States has acceded to, and agreed to be bound by, the 1951 U.N. Convention Relating to the Status of Refugees (Refugee Convention), 189 U.N.T.S. 150 (July 28, 1951). See 1967 Protocol Relating to the Status of Refugees, 19 U.S.T. 6223 (Nov. 6, 1968); INS v. Cardoza-Fonseca, 480 U.S. 421, 429, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). The Refugee Convention contains two principles relevant to this case. First, Article 33.1 provides that " [ n ]

o Contracting State shall expel or return ('refouler') a refugee . . . 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 6267 (emphasis added). This prohibition on deporting aliens to a country of risk is known as the " nonrefoulement" principle. Cardoza-Fonseca, 480 U.S. at 440. Second, Article 34 states that " [t]he Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees." Id. (emphasis added).

Congress imbued these international commitments with the force of law when it enacted the Refugee Act of 1980 (Refugee Act), Pub. L. 96-212, 94 Stat. 102-18, which amended the INA in certain respects. The Refugee Act prohibited the Attorney General from deporting any alien to a country if such deportation would endanger that alien's life or freedom based on certain characteristics of the alien. Id. § 203(e), 94 Stat. 107. In addition, the Refugee Act also directed the Attorney General to " establish a procedure for an alien . . . irrespective of such alien's status, to apply for asylum." Id. § 201(b), 94 Stat. 105. Whether the alien ultimately received asylum was a discretionary decision entrusted to the Attorney General. Id.; see also Cardoza-Fonseca, 480 U.S. at 428 n.5.

Congress then passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C.), which refashioned the above principles into their current form. As for nonrefoulement, the statute now provides that " the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A) (emphasis added). The implementing regulations refer to this prohibition as " withholding of removal." 8 C.F.R. § 1208.16.

IIRIRA also revised the asylum section of the INA, which now provides that " [ a ] ny 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 [section 1158] . . . ." 8 U.S.C. § 1158(a)(1) (emphasis added). Section 1158 further states that " the Attorney General may grant asylum to an alien," § 1158(b)(1)(A) (emphasis added), except in certain enumerated circumstances, § 1158(b)(2)(A). Thus, as it was in the Refugee Act, the determination of whether an eligible applicant actually receives asylum is within the discretion of the Attorney General. Id.; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 420, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (" [W]hereas withholding is mandatory . . . , the decision whether asylum should be granted to an eligible alien is committed to the Attorney General's discretion." ). Finally, the asylum section provides that " [t]he Attorney General may by regulation establish additional

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limitations and conditions, consistent with [section 1158], under which an alien shall be ineligible for asylum . . . ." § 1158(b)(2)(C) (emphasis added).

IIRIRA also addressed a separate issue altogether, which is at the heart of this case: reinstatement of previous removal orders. Congress was frustrated with existing procedures for deporting aliens who repeatedly re-entered the United States unlawfully.² In order to expedite the removal process for these repeat offenders and deter illegal reentry, Congress mandated: If the Attorney General finds that an alien has reentered the United States illegally after having been removed . . . under an order of removal, the prior order of removal is reinstated . . . 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 the reentry.

8 U.S.C. § 1231(a)(5). In interpreting this reinstatement provision, the Supreme Court explained that it " applies to all illegal reentrants, explicitly insulates the [prior] removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order." Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006) (emphasis added).

2. Apparent Conflict and Attorney General's Regulations

After IIRIRA's amendments, there is an apparent conflict between two sections of our immigration laws. While the asylum section entitles " any alien . . . irrespective of such alien's status" to apply for asylum, § 1158(a)(1), the reinstatement provision precludes aliens with reinstated removal orders from obtaining " any relief," § 1231(a)(5). So the question is whether an alien subject to reinstatement is eligible for asylum relief.

The Attorney General has answered this question in the negative. Regulations promulgated by the Immigration and Naturalization Service (INS)--an agency formerly under the purview of the Attorney General--preclude aliens subject to reinstated removal orders from applying for asylum, but those aliens may nevertheless apply for withholding of removal.^[3] 8 C.F.R. § 1208.31(e) (When the asylum officer initially concludes the alien warrants relief, the immigration judge may consider " the request for withholding of removal only." (emphasis added)); id. § 1208.31(g)(2)(i) (When the asylum officer initially concludes the alien does not warrant relief, and the immigration judge disagrees with that determination, " [t]he immigration judge shall consider only the alien's application for withholding of removal. . . ." (emphasis added)); see also Regulations Concerning the Convention Against Torture, 64 Fed.Reg. 8478, 8485 (Feb. 19, 1999) (" Unlike the broad class of arriving

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aliens who are subject to expedited removal, . . . aliens [with reinstated removal orders] are ineligible for asylum." (emphasis added)).⁴ Thus, when an alien with a reinstated removal order credibly expresses a reasonable fear of persecution, that alien is placed in " withholding-only" proceedings, with no opportunity to apply for asylum. AR 861. This withholding-only rule is consistent with the United States' nonrefoulement obligation, as well as the statutory prohibition on deporting aliens to a country wherein the alien would suffer persecution on the basis of certain personal characteristics. 8 U.S.C. § 1231(b)(3)(A).

Unfortunately, the Attorney General's restriction on asylum makes a difference to an applicant because asylum " affords broader benefits" than withholding of removal. Cardoza-Fonseca, 480 U.S. at 428 n.6. Asylum status offers...