Ali v. Barr, 022420 FED5, 17-60604

Docket Nº:17-60604
Opinion Judge:ANDREW S. OLDHAM, CIRCUIT JUDGE:
Party Name:NADEEM ALI, also known as Inayal Sharif, Petitioner, v. WILLIAM P. BARR, U.S. Attorney General, Respondent.
Judge Panel:Before JONES, HO, and OLDHAM, Circuit Judges.
Case Date:February 24, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

NADEEM ALI, also known as Inayal Sharif, Petitioner,

v.

WILLIAM P. BARR, U.S. Attorney General, Respondent.

No. 17-60604

United States Court of Appeals, Fifth Circuit

February 24, 2020

Petition for Review of an Order of the Board of Immigration Appeals

Before JONES, HO, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, CIRCUIT JUDGE:

Nadeem Ali lost his status as a legal permanent resident ("LPR") when he was convicted of certain drug offenses. He challenges that result by arguing that-at the time of his drug convictions-he was both an LPR and an asylee. The Board of Immigration Appeals ("Board" or "BIA") disagreed. So do we.

I.

On December 7, 1991, Nadeem Ali left his home country of Pakistan and came to the United States. He used a fake visa to enter the country. So the Government initiated exclusion proceedings.1

Ali applied for asylum. See 8 U.S.C. § 1158(a)(1). He claimed a rival political party-the Muslim Qaumi Movement ("MQM")-had imprisoned him three different times between 1982 and 1991 based on his support for the Pakistan People's Party ("PPP"). On December 3, 1992, an Immigration Judge ("IJ") granted Ali asylee status. The IJ found: [Ali] had satisfied his evidentiary burden of proof establishing that he had been persecuted and continues to have a well-founded fear of persecution upon return to Pakistan on account of political opinion and within the contemplation of the I&N Act. Additionally, the court found the applicant to be deserving of political asylum as a matter of discretion.

That barred the Attorney General from removing Ali to Pakistan as long as he remained an asylee. See 8 U.S.C. § 1158(c)(1); 8 C.F.R. § 208.22.

Thereafter, Ali applied to become an LPR. See 8 U.S.C. § 1159(b). The Government granted Ali's application in June of 1993. That legalized his permanent residence.

It did not legalize Ali's other behavior. In 1998, Ali pleaded no contest to delivering drug paraphernalia. See Tex. Health & Safety Code § 481.125. And in 2013, Ali pleaded guilty to possessing cocaine. See Id. §§ 481.102, 481.115. The INA authorizes the Government to remove an LPR convicted of an offense "relating to a controlled substance." 8 U.S.C. § 1227(a)(2)(B)(i). Cocaine is a controlled substance. See 21 U.S.C. §§ 802(6), 812(c). So the Government initiated removal proceedings. See supra note 1.

Ali argued the Government had no power to remove him without first terminating his asylee status. See 8 U.S.C. § 1158(c)(2). An IJ disagreed. The IJ concluded Ali ceased being an asylee the moment he became an LPR. As a result, Ali needed to apply for asylum again if he wanted to invoke that status to avoid removal. So Ali did.

But this time, an IJ denied Ali's asylum application. And the BIA affirmed. It concluded Ali's status as an LPR ended his status as an asylee. It further found the IJ could properly reassess and reject Ali's credibility and claims of persecution, notwithstanding the 1992 decision granting him asylum. And the Board concluded Ali was not entitled to asylum (or other relief) on the merits.

In 2015, Ali petitioned this Court for review of the BIA's decision. Ali argued that his successful and voluntary adjustment to LPR status did not terminate his asylee status. See Ali v. Lynch (Ali I), 814 F.3d 306, 309 (5th Cir. 2016). The Ali I panel said "the BIA is entitled to Chevron deference when it interprets a statutory provision of the INA and gives the statute 'concrete meaning through a process of case-by-case adjudication.''' Ibid. (quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999), and citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). The panel nevertheless determined that the BIA had "not yet exercised its Chevron discretion to interpret the statute . . . ." Id. at 311; see also id. at 309 ("[W]e remand for the BIA to exercise its Chevron discretion in the first instance."); id. at 312 ("[W]e conclude that the BIA did not exercise its Chevron discretion because it did not fully consider the statutory question . . . ."); id. at 314 ("[W]e remand for the BIA to exercise its Chevron discretion . . . ."); id. at 315 (The BIA "did not exercise its Chevron discretion."). So Ali I vacated the BIA's decision and remanded for a fuller explanation of the Board's interpretation of the statute. Id. at 314-15.

On remand, the BIA stood by its conclusion that Ali lost his asylee status upon becoming an LPR. But this time, the Board explained its reasons at length and in a precedential opinion. See Matter of N-A-I-, 27 I. & N. Dec. 72 (BIA 2017). In the Board's view, the statute admits only one interpretation: The BIA concluded the statutory text, regulations, caselaw, and legislative history all supported its view that a voluntary adjustment from asylee status to LPR status terminates the former in exchange for the latter. Then the BIA carefully considered Ali's contrary position and found it foreclosed by the INA's text, regulations, and caselaw. Once again, Ali petitioned for review.

II.

The first question is whether an alien loses his asylee status when he voluntarily and successfully adjusts to LPR status. He does.

A.

We start, as the parties do, with Ali I. In that decision, our Court held the BIA had "not yet exercised its Chevron discretion . . . ." Ali I, 814 F.3d at 311; see also id. at 309, 312, 314, 315. In the first panel's view, the BIA had not sufficiently grappled with the text of § 1158(c) (governing the termination of asylum) or § 1159(b) (governing adjustment to LPR status). See id. at 312-13. Ali I also faulted the BIA for not grappling with statutory context or administrative precedents under the INA. See id. at 313-14. And our Court was troubled that the Board had not yet consulted legislative history. See id. at 314. Because the BIA had not completed these steps, the Ali I panel said it could only "guess at the theory underlying the agency's action." Id. at 315 n.10 (quotation omitted). And "a court [cannot] be expected to chisel that which must be precise from what the agency has left vague and indecisive." Ibid. (quotation omitted).

Administrative-law wonks call that a "Chevron Step Zero" decision. See, e.g., Fox v. Clinton, 684 F.3d 67, 83 (D.C. Cir. 2012) (Williams, J., concurring); Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 Geo. L.J. 833, 836 (2001). Chevron Step Zero is "the initial inquiry into whether the Chevron framework applies at all." Cass R. Sunstein, Chevron Step Zero, 92 Va.L.Rev. 187, 191 (2006); see, e.g., United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). But Chevron Step Zero cannot be completed where the agency has not yet offered its interpretation of the statute. See Fox, 684 F.3d at 83 (Williams, J., concurring). In that circumstance, "a remand is essential." Ibid.

That's precisely what Ali I did. The panel noted that the Board had acted on Ali's appeal without the benefit of "any earlier guidance or inquiry from this court." Ali I, 814 F.3d at 315 n.10. So the panel provided both. Id. at 310-15. But Ali I repeatedly emphasized that-rather than offer its own interpretation of the INA-it would "remand for the BIA to interpret the relevant INA provisions in the first instance." Id. at 308; see also id. at 309, 315.

Ali argues the first panel also found that § 1158(c) and § 1159(b) are ambiguous. But the ambiguity question-"whether Congress has directly spoken to the precise question at issue"-is Chevron Step One. Chevron, 467 U.S. at 842. Of course, Step One cannot be performed before Step Zero. See Mead, 533 U.S. at 226-27. And we do not share Ali's presumption that the prior panel performed the Chevron steps out of order. Plus, "Chevron's premise is that it is for agencies, not courts, to fill statutory gaps." Texas v. Alabama-Coushatta Tribe of Texas, 918 F.3d 440, 447 (5th Cir. 2019) (quotation omitted). So it would not make sense for a court to opine on the meaning of a statute while repeatedly demanding the agency do it "in the first instance." Ali I, 814 F.3d at 308; see also id. at 309, 315. Language that might be read to the contrary in Ali I is best understood as "guidance or inquiry from this court," id. at 315 n.10, provided to help the agency as it exercised its interpretive authority "in the first instance," id. at 315. To read Ali I otherwise would mean the prior panel found the statute ambiguous (Step One) and blessed the BIA's interpretation as one of "the reasonable interpretations" (Step Two)-but then didn't defer to the BIA's reasonable interpretation of an ambiguous part of the INA. Cf. id. at 311. That wouldn't be Chevron at all. See Mead, 533 U.S. at 229 (explaining that under Chevron, a court is "obliged to accept the agency's position if Congress has not previously spoken to the point at issue and the agency's interpretation is reasonable"). Ali I is best understood as a Step Zero decision that remanded so the Board could interpret the statute in the first instance.2

B.

On remand from Ali I, the BIA offered a thoughtful and thorough analysis of the statute. And it adopted its decision in a lengthy and precedential opinion. See Matter of N-A-I-, 27 I. & N. Dec. 72 (BIA 2017). In it, the Board explained why an asylee loses that status when he voluntarily adjusts to LPR status. We're persuaded by the BIA's explanation.

The key statutory provision at issue here says the Attorney General "may adjust" an asylee "to the status of an alien lawfully admitted for permanent residence" if the asylee meets certain requirements. 8 U.S.C. § 1159(b). The word "to" indicates the alien's status is altered in a more fundamental sense-the alien goes from one status to another. See, e.g.,

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006)...

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