Perez-Guzman v. Lynch

• Decision Date: 31 August 2016
• Docket Number: No. 13–70579,13–70579
• Citation: 835 F.3d 1066
• Parties: Rony Estuardo Perez–Guzman, AKA Ronnie Perez–Guzman, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

835 F.3d 1066

Rony Estuardo Perez–Guzman, AKA Ronnie Perez–Guzman, Petitioner,

v.Loretta E. Lynch, Attorney General, Respondent.

No. 13–70579

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 4, 2016 Pasadena, California

Filed August 31, 2016

Eric M. Fraser (argued), Osborn Maledon, P.A., Phoenix, Arizona, for Petitioner.

Tim Ramnitz (argued); Anthony C. Payne, Senior Litigation Counsel; Joyce R. Branda, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Keren Zwick (argued), National Immigrant Justice Center, Chicago, Illinois; Stephen W. Manning, Immigrant Law Group P.C., Portland, Oregon; Robin L. Goldfaden, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, San Francisco, California; for Amicus Curiae American Immigration Lawyers Association, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, and National Immigrant Justice Center.

Before: Raymond C. Fisher, Milan D. Smith, Jr., and Jacqueline H. Nguyen, Circuit Judges.

OPINION

FISHER

, Circuit Judge:

Rony Estuardo Perez–Guzman (Perez), a native and citizen of Guatemala, entered the United States without inspection for the first time in 2011. The Department of Homeland Security (DHS) apprehended and removed him after expedited removal proceedings. Perez reentered the United States in 2012 and was again apprehended by DHS, which reinstated the earlier removal order. After an asylum officer found Perez had established a reasonable fear of being tortured if removed to Guatemala, he was referred to an Immigration Judge (IJ) for consideration of his applications for withholding of removal and protection under the Convention Against Torture (CAT). Because Perez was subject to a reinstated removal order, the IJ declined to consider his application for asylum. The IJ denied on the merits his requests for withholding of removal and protection under CAT, and the Board of Immigration Appeals (BIA) affirmed.

The parties agree that we must remand to the BIA on Perez's claims for withholding of removal and protection under CAT in light of intervening circuit precedent. The issue we consider here is whether an individual subject to a reinstated removal order is eligible to apply for asylum under the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). We hold Congress has not clearly expressed whether 8 U.S.C. § 1231(a)(5)

, enacted by IIRIRA, prevents an individual subject to a reinstated removal order from applying for asylum under 8 U.S.C. § 1158. We conclude, however, that the Attorney General's regulation preventing Perez from applying for asylum under these circumstances is a reasonable interpretation of the statutory scheme, and is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, we remand to the BIA only for reconsideration of Perez's withholding and CAT claims.

I. Background

A. Factual Background

Perez alleges that three incidents in his home county of Guatemala make him eligible for asylum, withholding of removal and CAT protection. First, Perez was struck by a stray bullet fired by members of a gang extorting a local businessman and gave a statement to police about the gang members involved in the shooting. After they were released from jail, the gang members visited Perez's house while he was away.

Second, Perez discovered his name appeared on a “death squad kill list” compiled by a group of police officers and soldiers who engaged in extrajudical law enforcement by executing suspected gang members, guerrillas and other criminals. Other individuals on the list were later killed, including Perez's cousin. Shortly after his cousin's murder, Perez fled his hometown.

Finally, Perez was abducted by individuals purporting to be Guatemalan police officers. The kidnappers blindfolded Perez, tied him to a chair and beat him before realizing they had abducted the wrong man. The kidnappers discussed killing Perez, but released him with the threat that they would kill him if he reported the attack.

Perez left Guatemala and entered the United States for the first time in June 2011, but was stopped by the Border Patrol. He later testified before the IJ that the Border Patrol agents never asked him whether he feared returning to Guatemala, but only “came out with a paper” for him to sign certifying that he had entered the country illegally. Records of a brief interview conducted during the expedited removal process, however, note Perez answered in the negative when asked whether he feared returning to Guatemala. He was removed to Guatemala in July 2011.

Perez reentered the United States and was apprehended a second time in January 2012. DHS reinstated his earlier removal order. Because Perez expressed a fear of returning to Guatemala, he was referred to an asylum officer, who found his fear of persecution or torture was reasonable and referred him to an IJ for further proceedings.

Before the IJ, Perez sought asylum, withholding of removal and protection under CAT. The IJ, however, concluded Perez was ineligible for asylum because he had previously been removed and DHS had reinstated his earlier removal order. The IJ also denied Perez's applications for withholding of removal and CAT protection, concluding he had not established a likelihood that he would either be persecuted on a protected ground or tortured with government consent or acquiescence if returned to Guatemala. The BIA affirmed the denial of withholding of removal and CAT protection on the merits. It explained it would not reach the merits of Perez's asylum claim and that “[b]ecause the Department of Homeland Security ... reinstated a prior order of removal in this case, the Immigration Judge's consideration was limited to the applicant's request for withholding of removal and CAT protection. See 8 C.F.R. § 1208.31(e)

.”

B. Legal Background

Perez's claim turns on the interplay between two provisions of the INA—8 U.S.C. § 1158, the asylum statute, and 8 U.S.C. § 1231(a)(5)

, the reinstatement bar.¹

The Refugee Act of 1980 directed the Attorney General to establish procedures for granting asylum and enacted the initial version of § 1158

, which afforded any alien the right to apply for asylum irrespective of immigration status. See Refugee Act of 1980, Pub. L. No. 96–212, § 208, 94 Stat. 102 (codified as amended at 8 U.S.C. § 1158 ). Although Congress later amended the statute to prevent individuals convicted of aggravated felonies from receiving asylum, see Immigration Act of 1990, Pub. L. No. 101–649, § 515, 104 Stat. 4978, the law governing asylum applications remained largely unchanged until the enactment of IIRIRA, Pub. L. No. 104–208, Div. C, 110 Stat. 3009 (1996).

In its post-IIRIRA form, § 1158(a)(1)

retains its original scope, stating that “[a ]ny alien who is physically present in the United States ... irrespective of such alien's status , may apply for asylum in accordance with this section.” § 1158(a)(1) (emphasis added). A few statutory exceptions qualify this broad eligibility, barring asylum applications from individuals who can be resettled in another country, see § 1158(a)(2)(A), failed to timely apply, see § 1158(a)(2)(B), or previously were denied asylum, see § 1158(a)(2)(C). Section 1158(a)(2)(D) creates an exception to the exceptions in subsections (a)(2)(B) and (C), stating in relevant part that an individual may make a second application for asylum notwithstanding a previous denial if he shows changed circumstances affecting his eligibility for asylum. See § 1158(a)(2)(D).

IIRIRA also revised the effect of reinstatement, the summary removal process whereby the government reinstates and executes an individual's previous removal order rather than initiating a new removal proceeding against him. Before IIRIRA, only a subset of individuals who illegally reentered the country were subject to reinstatement of their earlier removal orders; the rest were placed in ordinary removal proceedings, even on subsequent reentries. See Fernandez–Vargas v. Gonzales , 548 U.S. 30, 33–35, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006)

. In addition, individuals in the “limited class of illegal reentrants” subject to reinstatement could still “seek some varieties of discretionary relief” from their reinstated removal order. Id. at 34, 126 S.Ct. 2422. With IIRIRA, however, Congress replaced the old reinstatement provisions with “one that toed a harder line,” and “[u]nlike its predecessor, ... applie[d] to all illegal reentrants, explicitly insulate[d] the [reinstated] removal orders from review, and generally foreclose[d] discretionary relief from the terms of the reinstated order.” Id. at 34–35, 126 S.Ct. 2422 (noting the availability of withholding of removal). This reinstatement bar, codified at § 1231(a)(5), states

[i]f the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date 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.

§ 1231(a)(5)

(emphasis added). “[T]his chapter” refers to chapter 12 of title 8 of the U.S. Code, which contains both the asylum statute and reinstatement bar.

Consistent with this section, the Attorney General promulgated 8 C.F.R. § 1208.31(e)

,² which states in relevant part that “[i]f an asylum officer determines that an alien [subject to a reinstated removal order] has a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a ... [r]eferral to [an] Immigration Judge, for full consideration of the request...