Yan Yang v. Barr

• Decision Date: 02 July 2019
• Docket Number: Docket No. 16-3478-ag,August Term, 2017
• Citation: 939 F.3d 57
• Parties: YAN YANG, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

939 F.3d 57

YAN YANG, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

Docket No. 16-3478-ag

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: May 17, 2018

Decided: July 2, 2019

Amended: September 11, 2019

GARY J. YERMAN, New York, NY, for Petitioner Yan Yang.

STEFANIE NOTARINO HENNES, Trial Attorney, Office of Immigration Litigation (Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation, on the brief), for Chad A. Readler, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for Respondent William P. Barr, United States Attorney General.

Before: POOLER, WESLEY, and LOHIER, Circuit Judges.

Judge Wesley dissents in a separate opinion.

Judge Lohier concurs in a separate opinion.

POOLER, Circuit Judge:

We are asked to determine whether the Immigration and Nationality Act’s ("INA") exception for late filing applies only to changed circumstances underpinning a successful claim, or whether the changed circumstances permit an application for asylum on multiple bases, including bases that are unrelated to the changed circumstances. We hold that the plain language of the statute unambiguously permits an applicant to raise multiple claims in her asylum application, even if the changed circumstance relates only to one proffered basis for asylum. Accordingly, we grant the petition for review and remand the application to the Board of Immigration Appeals ("BIA") for further proceedings consistent with this opinion.¹

BACKGROUND

Yan Yang was born in China in 1973. In September 1992, Yang met her husband, Shen Zhonghua, while she was working in a garment factory in Shenzhen. On July 6, 1994, Yang and Zhonghua returned to his hometown of Wutong Town to register their marriage with the government. Yang and her husband were both required to submit to a mandatory physical examination at a hospital before the local government would register their marriage. This exam revealed that Yang was "pregnant without prior authorization" since she and Zhonghua were not yet married. Certified Administrative Record ("CAR") at 536. Yang was immediately forced to have an abortion.

Yang entered the United States on a tourist visa on June 3, 2002, but remained in the United States after her temporary visa expired and gave birth to her U.S.-citizen son in October 2004. In July 2012, Yang began attending a Christian church and was baptized into the church on September 23, 2012.

On her own initiative, prior to any removal proceedings, Yang affirmatively filed an application for asylum on October 17, 2012 on two bases: her forced abortion in China and her recent conversion to Christianity. Though asylum applications must be filed within one year of the applicant’s arrival in the United States, 8 U.S.C. § 1158(a)(2)(B), applications may be filed beyond that deadline if the applicant can demonstrate "changed circumstances which materially affect the applicant’s eligibility for asylum," 8 U.S.C. § 1158(a)(2)(D). Yang submitted her application over a decade after her arrival to the United States, but within one month of her conversion to Christianity.²

On December 11, 2012, however, she was served with a Notice to Appear charging her with removability for overstaying her visa. On March 11, 2015, the Immigration Judge ("IJ") denied her application for asylum. The IJ determined that the exception for "changed circumstances" applied only to Yang’s religious asylum claim, effectively severing the application into its two separate claims. The IJ found that Yang was credible on all counts, but that there was insufficient evidence of persecution of Christians in China to grant the asylum application on that basis. The IJ did not consider Yang’s asylum claim based on her forced abortion because the IJ determined that the claim was not timely filed, but the IJ found Yang’s story credible and granted her withholding of removal on the basis of that claim. On September 20, 2016, the IJ’s decision was affirmed in all respects by the BIA.

DISCUSSION

"When the BIA does not expressly adopt the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, this Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness." Zaman v. Mukasey , 514 F.3d 233, 237 (2d Cir. 2008) (internal quotation marks omitted). Neither the IJ nor the BIA offered any substantive analysis of the question facing us in this appeal, namely, whether a changed circumstance affecting eligibility for one asylum claim renders the properly filed asylum application timely filed for all claims. Instead, both the IJ and the BIA assumed that the plain language of the statute barred the IJ from considering Yang’s forced abortion claim. Yang argues to this Court, as she did before the BIA, that the plain language of the statute requires consideration of her full asylum application.

The government urges us to defer to the BIA’s decision insofar as that decision has the "power to persuade." Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ; see also Christensen v. Harris Cty ., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (holding that "interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron -style deference," but may be entitled to Skidmore deference). But because we find there is no ambiguity in the statutory language, and that "Congress has directly spoken to the precise question at issue," Chevron, U.S.A., Inc. v. Nat. Res. Def. Council , Inc. , 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), there is no need for deference or remand under any of our existing models of deference to agency adjudication. We additionally observe that it is undisputed that an IJ’s construction of the INA is entitled to no deference, Li v. INS , 453 F.3d 129, 136 (2d Cir. 2006), and we have previously held that "the BIA’s nonprecedential single-member decision" is not accorded Chevron deference, because it was not "promulgated under its authority to make rules carrying the force of law." Rotimi v. Gonzales , 473 F.3d 55, 57 (2d Cir. 2007) (internal quotation marks omitted). There is simply no basis on which deference is appropriate—let alone required—in this case. Because we are asked to resolve "a pure question of statutory construction,"³ which is a question of law "for the courts to decide," INS v. Cardoza-Fonseca , 480 U.S. 421, 446, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), we therefore review these claims in the first instance, without remanding to the agency. Our review of this question of law is de novo. Adams v. Holder , 692 F.3d 91, 95 (2d Cir. 2012).

I. Plain Language of the Statute

"Our analysis begins with the text" of Section 1158(a)(2)(D), "and we look to both the language itself and the specific context in which that language is used." Merit Mgmt. Grp., LP v. FTI Consulting, Inc. , ––– U.S. ––––, 138 S.Ct. 883, 893, 200 L.Ed.2d 183 (2018) (internal quotation marks and brackets omitted). In doing so, we focus our attention on two key phrases within the section that are dispositive of the question presented in this appeal.

A. "An application for asylum"

In our first look at the plain language of the statute, we observe that the relevant section clearly states that "[a]n application for asylum of an alien may be considered ... if the alien demonstrates ... changed circumstances which materially affect the applicant’s eligibility for asylum." 8 U.S.C. § 1158(a)(2)(D) (emphasis added). The plain language of the statute thus makes clear that changed circumstances provide for the consideration of an application for asylum, as opposed to a specific claim for asylum.

This reading of the plain language is reinforced by the specific context in which this provision appears. In aid of this effort, we examine the section headings and organizational structure of the relevant section of the INA. "Although section headings cannot limit the plain meaning of a statutory text, they supply cues as to what Congress intended." Merit Mgmt. , 138 S.Ct. at 893 (internal citation and quotation marks omitted). The section headings and organization of this section of the INA evince a clear intent to address the ability to file an application for asylum, rather than an ability to be granted asylum or the ability to file a particular asylum claim.

Indeed, the relevant section of the INA is titled "Authority to apply for asylum."⁴ That section is further divided into three parts: (1) In general, (2) Exceptions, and (3) Limitations on judicial review. The first part ("In general") establishes the basic framework establishing the authority to apply for asylum:

(1) In general. – Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) [regarding the inspection of arriving aliens].⁵

8 U.S.C. § 1158(a)(1). After laying out the basic premise regarding who may apply for asylum, Section 1158(a) next turns to the "Exceptions" to the general framework permitting asylum applications in order to establish three specific situations in which foreign nationals may not apply for asylum (in other words, a foreign national’s application for asylum may not be considered). 8 U.S.C. § 1158(a)(2). The statute explains that the general framework regarding asylum applications "shall not apply:" when the foreign national may be removed to a "safe third country," Section 1158(a)(2)(A), when the foreign national has not "demonstrate[d] by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s...