Chen v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
QING LI CHEN, 
Petitioner, No. 06-71430
v.
 Agency No.
A76-641-064
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 8, 2007—Seattle, Washington
Filed May 2, 2008
Before: William C. Canby, Jr., Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Canby
4859
CHEN v. MUKASEY 4861
COUNSEL
Joshua E. Bardavid and Patricia S. Mann, Law Offices of
Theodore N. Cox, New York, New York, for the petitioner.
Anh-Thu P. Mai and Lyle D. Jentzer, Department of Justice,
Civil Division, Office of Immigration Litigation, Washington,
D.C., for the respondent.
OPINION
CANBY, Circuit Judge:
Petitioner Qing Li Chen is a citizen of China who is subject
to a final order of removal. She seeks to file an application for
4862 CHEN v. MUKASEY
asylum based on a change in her personal circumstances. The
Board of Immigration Appeals (“BIA”) held that such an
application could be presented only as part of a motion to
reopen her removal proceedings. The BIA then denied the
motion to reopen because it exceeded the limits on time and
number for such motions. Chen now petitions for review of
that denial.
Chen’s petition presents a question of the proper interpreta-
tion of two arguably conflicting immigration statutes and their
implementing regulations. One statute and its regulation pro-
vide that an alien who is subject to a final order of removal
is limited to one motion to reopen the removal proceedings,
which motion must be filed within 90 days of the entry of a
final order of removal.1 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8
C.F.R. § 1003.2(c)(2). An exception to this time limit pro-
vides that there is no time limit for motions to reopen for asy-
lum applications based on “changed country conditions
arising in the country of nationality or the country to which
removal has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii).2
Chen does not assert a change in country conditions.
Another statute and its regulation provide that aliens who
apply for asylum must do so within one year after arrival in
the United States, and must show that they have not previ-
ously applied for and been denied asylum. 8 U.S.C.
§ 1158(a)(2)(B), (C); 8 C.F.R. § 208.4(a)(2). An exception to
the number and time limits is provided, however, for aliens
who can demonstrate “the existence of changed circumstances
which materially affect the applicant’s eligibility for asylum.”
8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)(i)(B). Chen
alleges a change in her personal circumstances that qualifies
her for this exception.
1
The statute contains an exception for battered spouses and children,
which is not relevant to our case. See 8 U.S.C. § 1229a(c)(7)(C)(iv).
2
A regulation extends this exception to include freedom from the limits
on number, and not just time, for such motions to reopen. See 8 C.F.R.
§ 1003.2(c)(3).
CHEN v. MUKASEY 4863
The question presented is whether the latter, broader excep-
tion permits Chen not only to avoid the general number and
time limits of the asylum statute, § 1158, but also to avoid the
number and time limits of the statute, § 1229a(c)(7), govern-
ing the reopening of removal proceedings by an alien subject
to a final order of removal. In a recently published decision
involving a different applicant, the BIA held that the answer
to this question is “no.” In re C-W-L-, 24 I. & N. Dec. 346
(B.I.A. 2007). We conclude that the BIA’s interpretation of
the two statutes, as they affect each other, is a reasonable one,
and we defer to that interpretation. See Chevron U.S.A. Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).
We accordingly hold that the BIA did not err in ruling that
Chen’s motion to reopen is barred by the number and time
limitations of § 1229a(c)(7), and we deny her petition for
review.3
FACTUAL AND PROCEDURAL BACKGROUND
Chen entered the United States on October 9, 1999. She
was apprehended for presenting a counterfeit passport and,
after being released on a $7,500 bond, she moved to New
York City. An exclusion hearing was held and Chen failed to
appear. She was ordered removed in absentia on November
24, 1999. A warrant issued for her removal, and she failed to
comply with INS instructions for departure. She moved to
reopen the removal proceedings, but her motion was denied.
She filed an appeal of that denial, which the BIA rejected as
untimely.
In 2001, Chen married Yan Zheng in New York City and
the couple had their first child in 2002. Chen filed a second
motion to reopen the removal proceedings in January 2004,
and the immigration judge denied this motion as barred by the
time and number limits of 8 C.F.R. § 1003.2(c)(2). The BIA
affirmed.
3
We have jurisdiction pursuant to 8 U.S.C. § 1252.
4864 CHEN v. MUKASEY
Over a year later, in 2005, Chen had her second child. She
then filed a “Motion to File Successive Asylum Application
Pursuant to 8 C.F.R. § 208.4,” alleging that her changed per-
sonal circumstances would result in the forced sterilization of
her or her husband if they returned to China because Chinese
population control policy prohibits this second child. The BIA
denied this motion, finding that it was time- and number-
barred as a motion to reopen under 8 C.F.R. § 1003.2(c)(2).
Chen petitioned this court for review.
DISCUSSION
Under the Real ID Act, Pub L. No. 109-13, § 106(a), 119
Stat. 231, 310 (2005), this court may review the BIA’s inter-
pretation of the “changed circumstances” exception to the
asylum statute. Ramadan v. Gonzales, 479 F.3d 646, 649-50
(9th Cir. 2007) (per curiam). As described above, Chen’s abil-
ity to reopen the proceedings depends on two statutory provi-
sions (and their accompanying regulations) that appear to
conflict. Nothing in these statutes and regulations explicitly
indicates whether a successive and untimely asylum applica-
tion by an alien under an order of removal is subject to the
limitations on motions to reopen. As we stated above, how-
ever, a recently published opinion of the BIA speaks to
Chen’s case.
[1] In In re C-W-L-, 24 I. & N. Dec. at 350-51, a three-
judge panel of the BIA held that a successive and untimely
asylum application filed by an alien under a final order of
removal must satisfy the requirements for a motion to reopen.
A published decision issued by a three-judge panel of the BIA
has precedential effect and is entitled to deference under
Chevron, so long as: (1) the underlying statute is ambiguous,
and (2) the BIA decision itself is not arbitrary, capricious, or
contrary to law. Garcia-Quintero v. Gonzales, 455 F.3d 1006,
1012-14 (9th Cir. 2006).
[2] Congress has not unambiguously expressed its intent
with regard to the question at hand. The asylum provision, 8
CHEN v. MUKASEY 4865
U.S.C. § 1158(a)(2)(D), allows consideration of a successive
and untimely asylum application in cases of “changed circum-
stances.” The provision governing motions to reopen states
more narrowly, “There is no time limit on the filing of a
motion to reopen if the basis of the motion is . . . changed
country conditions arising in the country of nationality or the
country to which removal has been ordered . . . .” 8 U.S.C.
§ 1229a(c)(7)(C)(ii). Although neither of these provisions is
ambiguous taken individually, we consider them in light of
each other.
In making the threshold determination under
Chevron, a reviewing court should not confine itself
to examining a particular statutory provision in isola-
tion. Rather, the meaning—or ambiguity—of certain
words or phrases may only become evident when
placed in context. It is a fundamental canon of statu-
tory construction that the words of a statute must be
read in their context and with a view to their place
in the overall statutory scheme.
Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 127
S. Ct. 2518, 2534 (2007) (internal quotation marks, alterations
and citations omitted). Nowhere does the statute indicate
whether a successive and untimely asylum application after
the entry of a removal order requires a motion to reopen.
Because the statute is silent on the interaction between the
two provisions at issue, we must defer to the agency as long
as its interpretation is reasonable. See Chevron, 467 U.S. at
843.
[3] We conclude that the BIA’s interpretation is reasonable.
An alien subject to a final order of deportation must file any
application for asylum with the BIA. See 8 C.F.R.
§ 208.4(b)(4). The issue for the BIA in In re C-W-L-, as in
Chen’s case, was whether to entertain the application as a
free-standing claim for asylum subject to the more liberal
exception in § 1158(a)(2)(D), without regard to the limits on
4866 CHEN v. MUKASEY
motions to reopen under § 1229a(c)(7). It was reasonable for
the BIA to conclude that to permit such an avoidance of the
time and number limits on motions to reopen would make
nonsense of the more restrictive exception in § 1229a(c)(7).
The only exception to the number and time limits for reopen-
ing provided by Congress was for asylum claims based on
changed country conditions. The BIA stated that the narrow
scope of this limitation would be entirely frustrated if an alien
subject to removal who could not qualify for this exception
were free to seek asylum under § 1158(a)(2)(D). In re
C-W-L-, 24 I. & N. Dec. at 351. Accordingly, the BIA held
that such an asylum application can be made only in connec-
tion with a motion to reopen, subject to the limitations of
§ 1229a(c)(7). Id. This interpretation of the reach of the two
statutes was reasonable, and we defer to it.
Chen contends that the BIA’s interpretation is unreasonable
because it renders the broader changed conditions exception
for asylum applications in § 1158 a nullity. That argument
overstates the case. Section 1158 continues to apply to aliens
seeking asylum who have not been adjudicated to be subject
to removal. As the BIA noted in In re C-W-L-, an asylum
applicant can still invoke this broader exception, albeit “prin-
cipally at an earlier stage of proceedings than [ ] the 90-day
reopening provisions.” 24 I. & N. Dec. at 353. Although the
broader exception to the number and time limits in the asylum
provision may not assist aliens in Chen’s position, it cannot
be said that it is without effect in the statutory scheme under
the BIA’s interpretation.
[4] Nor are we persuaded that a regulatory comment cited
by Chen mandates a different result. This comment, published
by the Department of Justice’s Executive Office for Immigra-
tion Review, accompanied a proposed rule change in 1997. 62
Fed. Reg. 10,312, 10,316 (Mar. 6, 1997). It states that the
Department of Justice (“DOJ”) decided to drop the regulatory
requirement that a successive asylum petition based on
changed circumstances be raised through a motion to reopen.
CHEN v. MUKASEY 4867
Id. We agree with the Seventh Circuit that the legal signifi-
cance of this language is not entirely clear, and it does not
trump the legal effect of the BIA’s interpretation of the two
statutes. See Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th
Cir. 2007). Moreover, as the BIA’s decision points out, the
DOJ’s failure to require motions to reopen in every case does
not necessarily mean that a motion to reopen is not required
when the alien is subject to a final order of deportation. In re
C-W-L-, 24 I. & N. Dec. at 353. It is not inconsistent with the
DOJ’s comment to apply the reopening limitations indepen-
dently of the asylum statute so that they govern an alien such
as Chen under a final order of removal. See id.
The plain language of the statute further supports this
approach because the changed conditions exception for asy-
lum applications is permissive on its face: “An application for
asylum of an alien may be considered . . . .” 8 U.S.C.
§ 1158(a)(2)(D) (emphasis added); see United States v. Rod-
gers, 461 U.S. 677, 706 (1983) (“The word ‘may,’ when used
in a statute, usually implies some degree of discretion.”). The
BIA’s interpretation of the statute takes Congress at its word,
that it may consider such applications but need not do so in
every case. The BIA has struck a balance between considering
such applications and maintaining procedural rules that ensure
the interest in adjudicative finality. Its interpretation harmo-
nizes the competing exceptions. Its interpretation of the stat-
utes and regulations is reasonable, and its decision is not
arbitrary, capricious, or contrary to law.
We acknowledge language in a handful of decisions sug-
gesting that aliens in Chen’s position may seek asylum with-
out a motion to reopen. See He v. Gonzales, 501 F.3d 1128,
1133 n.9 (9th Cir. 2007); Xiao Xing Ni v. Gonzales, 494 F.3d
260, 273 (2d Cir. 2007) (Calabresi, J., concurring); Haddad
v. Gonzales, 437 F.3d 515, 518-19 (6th Cir. 2006); Guan v.
BIA, 345 F.3d 47, 49 (2d Cir. 2003) (per curiam). In He, after
holding that changed personal circumstances would not sup-
port a successive and untimely motion to reopen removal pro-
4868 CHEN v. MUKASEY
ceedings, we stated in a footnote that the Hes could
nevertheless file an application for asylum apart from the
removal proceedings under the asylum statute. See He, 501
F.3d at 1133 n.9. We acknowledged, however, that the issue
was not before us. Id. Because the interplay between the two
statutory provisions was not “presented for review” in He, we
are not bound by He’s offhand observation. See Barapind v.
Enomoto, 400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per
curiam). Similarly, the Second and Sixth Circuits made their
suggestions in dicta. In deferring here to the BIA’s statutory
interpretation, we reject these dicta.
Two other circuits have published opinions squarely
addressing the question presented here, and both reach the
conclusion that the BIA reached in In re C-W-L-. See Cheng
Chen, 498 F.3d at 760-61; Zheng v. Mukasey, 509 F.3d 869,
872 (8th Cir. 2007). “Deference is especially appropriate in
the context of immigration law, where national uniformity is
paramount.” Kaganovich v. Gonzales, 470 F.3d 894, 897 (9th
Cir. 2006). National uniformity in the immigration context
also counsels deference where, as here, a failure to defer
would cause a split of authority among the circuits.
[5] Chen’s final contention is that her removal will violate
“the U.N. Protocol Relating to the Status of Refugees, the
Convention Against Torture, and [her] Due Process rights.”
She has not established her right to any relief that may be
available under any of these provisions, however, and she has
failed to show how any of them is violated by the application
of reasonable procedural requirements for the adjudication of
her claims. See Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir.
2001) (rejecting claim that Convention Against Torture over-
comes time limits for assertion of claims in deportation pro-
ceedings); Logan v. Zimmerman Brush Co., 455 U.S. 422,
437 (1982) (stating that “the State certainly accords due pro-
cess when it terminates a claim for failure to comply with a
reasonable procedural or evidentiary rule”).
CHEN v. MUKASEY 4869
CONCLUSION
The BIA’s interpretation of §§ 1158(a)(2)(D) and
1229a(c)(7), and their implementing regulations, in In re C-
W-L- was reasonable, and we defer to it in accord with Chev-
ron, 467 U.S. at 842-45. Applying the same interpretation to
Chen, who is subject to a final order of removal, the BIA
properly concluded that Chen could apply for asylum only in
connection with a motion to reopen, subject to the time and
number limitations of § 1229a(c)(7). Because Chen exceeded
those limitations and did not claim to qualify for the country
conditions exception to them, her motion was properly
denied. Chen’s remaining contentions are without merit.
PETITION FOR REVIEW DENIED.