In re C-W-L-

• Decision Date: 31 October 2007
• Docket Number: Interim Decision No. 3589.
• Parties: In re C-W-L-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

24 I&N Dec. 346

In re C-W-L-, Respondent.

Interim Decision No. 3589.

Board of Immigration Appeals.

Decided October 31, 2007.

An alien who is subject to a final order of removal is barred by both statute and regulation from filing an untimely motion to reopen removal proceedings to submit a successive asylum application under section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a)(2)(D) (2000), based on changed personal circumstances.

FOR RESPONDENT: Theodore N. Cox, New York, New York.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Evalyn Douchy, Assistant Chief Counsel.

BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; GRANT and HESS, Board Members.

HURWITZ, Acting Vice Chairman:

This case is before us on remand from the United States Court of Appeals for the Second Circuit pursuant to a February 4, 2006, Stipulation and Order for Dismissal. Based on the parties' stipulated remand order, the court vacated our March 8, 2005, decision denying as untimely the respondent's December 28, 2004, motion to reopen our decision of March 6, 2003.¹ This remand provides an opportunity to address "whether the [respondent], as an alien with a final order of removal, may file a successive asylum application under [section 208(a)(2)(D) of the Immigration and Nationality Act,] 8 U.S.C. § 1158(a)(2)(D) based on changed personal circumstances." Both parties have filed briefs on remand. The motion will be denied.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a male native and citizen of China who entered the United States without a valid entry document in February 1990. He was issued a Notice to Appear (Form I-862) on June 16, 1997. The respondent was married in June 1998 to a lawful permanent resident alien of the United States. The couple has three United States citizen daughters born July 21, 1999, November 29, 2000, and November 30, 2003.

On March 21, 2001, an Immigration Judge denied the respondent's application for asylum and withholding of removal based on his fear of persecution on account of (1) his past interactions with birth control officials² and (2) the birth of his two children in the United States. We affirmed the Immigration Judge's decision on March 6, 2003. On December 20, 2004, the respondent filed a "Motion to File Successive Asylum Application Pursuant to 8 C.F.R. § 208.4," arguing that because of the birth of his third child in the United States, he could show a well-founded fear of persecution, i.e., involuntary sterilization, in China on account of his opposition to coercive population control policies.

In his motion, the respondent specifically argued that he need not file a motion to reopen in order to submit his successive asylum application for our consideration, and that none of the typical time and numerical limitations on such motions applied to him. We denied this motion as untimely on March 8, 2005, and noted that none of the exceptions to the timeliness requirements for motions to reopen applied. Specifically, we noted that the untimeliness of the motion to reopen was not excused by "changed circumstances arising in the country of nationality." Section 240(c)(7)(C)(ii) of the Act, 8 U.S.C. § 1129a(c)(7)(C)(ii) (2000); see also 8 C.F.R. § 1003.2(c) (2005). The respondent appealed this decision to the Second Circuit, which issued the above-noted remand order.

The respondent's argument is premised on the assertion that section 208(a)(2)(D) of the Act, 8 U.S.C. § 1158(a)(2)(D) (2000), standing alone, is a basis for filing an additional asylum application, notwithstanding the fact that he is currently under an order of removal and is barred by section 240(c)(7)(C)(ii) from filing an additional asylum application, except where accompanied by a timely motion to reopen or justified by changed country conditions. Because the Act's various provisions on when, where, and how to file an asylum application cannot be read in harmony to permit the respondent's interpretation, we must reject his argument and deny his motion.

II. ANALYSIS

On remand, we must consider the relationship between sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act and the corresponding regulations that implement those sections of the statute. Our interpretation of the Act is governed by settled principles of statutory construction. Generally, as a first step, we must look to the actual language used in the statute. It is well settled that the "`starting point must be the language employed by Congress'" and that we must assume "`that the legislative purpose is expressed by the ordinary meaning of the words used.'" INS v. Phinpathya, 464 U.S. 183, 189 (1984) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); Matter of Ruiz-Romero, 22 I&N Dec. 486 (BIA 1999). To resolve the question before us, we must therefore look to the language and design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). In so doing, we must give effect, if possible, to all parts of a statute. Kungys v. United States, 485 U.S. 759 (1988).

We also are bound by the implementing regulations that correspond to the relevant portions of the statute that control the issue presented here. Matter of Ponce de Leon, 21 I&N Dec. 154, 158 (BIA 1996; A.G., BIA 1997). These regulations have the force of law. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265 (1954). Regulations, like statutes, must be interpreted to give effect to the entire regulatory scheme. See Matter of Villarreal-Zuniga, 23 I&N Dec. 886, 889 (BIA 2006). In this context, we note that the purpose of the regulations, like statutory provisions, is evidenced by the words chosen by the Attorney General. See Matter of Artigas, 23 I&N Dec. 99, 100 (BIA 2001). "This Board and the Immigration Judges `must give effect to the unambiguously expressed intent' of the Attorney General." Id. (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984)). If the statute is silent or ambiguous with respect to the specific issue addressed by the regulation, the question becomes whether the agency regulation is a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843. An agency's interpretation of its own regulations is entitled to "controlling weight unless it is plainly erroneous or inconsistent with the regulation." See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945).

We turn now to the statutory provisions that control this case, namely sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act. The authority for an alien to file an asylum claim lies in section 208(a) of the Act.³ As the respondent acknowledges, the Act provides that an alien may file only one claim for asylum, which must be filed within 1 year of his or her arrival in the United States. See sections 208(a)(2)(B)-(C) of the Act.⁴ Exceptions to this general rule state that the 1-year filing deadline and the prohibition on refiling after the denial of an asylum application do not apply "if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified." Section 208(a)(2)(D) of the Act. The regulations provide a noninclusive list of examples of changed circumstances for purposes of section 208(a)(2)(D). See 8 C.F.R. § 1208.4(a)(4)(i) (2007).⁵

Section 240(c)(7)(C)(ii) of the Act was originally enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). This legislation was intended, in part, to curb abuse of the asylum process and other parts of removal proceedings.⁶ Section 240(c)(7) applies to situations like the one at bar, where an alien seeks to reopen proceedings in which he previously was ordered removed from the United States. It provides that "[a]n alien may file only one motion to reopen proceedings under this section," except for motions to reopen relating to battered spouses, children, and parents. Section 240(c)(7)(A) of the Act. The motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal. See section 240(c)(7)(C) of the Act. With regard to asylum applications, neither the 90-day motion filing deadline nor any other time limit applies when the purpose of the motion to reopen is to make an asylum claim "based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding." Section 240(c)(7)(C)(ii) of the Act.

The regulations generally track and provide guidance on implementing the statutory language of both sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act. For example, with regard to asylum claims, the regulations confer jurisdiction over an asylum claim on the Immigration Court or the Board, depending upon the stage of the proceedings. An asylum application filed "[d]uring exclusion, deportation, or removal proceedings" may be filed with the "Immigration Court having jurisdiction over the underlying proceeding." 8 C.F.R. § 1208.4(b)(3)(i). However, "[a]fter completion of exclusion, deportation, or removal proceedings" the regulations make clear that an asylum application may only be filed with the Immigration Court in conjunction with a "motion to reopen pursuant to 8 CFR part 1003 where applicable." 8 C.F.R. § 1208.4(b)(3)(ii) . Specifically, the regulations provide that to request further relief, a motion to reopen must be filed with the last body that issued an administratively final order of removal. 8 C.F.R. § 1003.2 (...