Rony Perez-Guzman v. Loretta E. Lynch , 835 F.3d 1066 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONY ESTUARDO PEREZ-GUZMAN, No. 13-70579
AKA Ronnie Perez-Guzman,
Petitioner, Agency No.
A200-282-241
v.
LORETTA E. LYNCH, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 4, 2016
Pasadena, California
Filed August 31, 2016
Before: Raymond C. Fisher, Milan D. Smith, Jr.,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Fisher
2 PEREZ-GUZMAN V. LYNCH
SUMMARY*
Immigration
The panel granted in part and denied in part a petition for
review of a decision of the Board of Immigration Appeals.
The panel held that the Attorney General’s regulation,
8 C.F.R. § 1208.31, precluding an individual subject to a
reinstated removal order from applying for asylum, is a
reasonable interpretation of the statutory scheme and is
therefore entitled to deference at step two of the framework
established under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). The panel also
remanded the petitioner’s withholding of removal and
Convention Against Torture claims in light of intervening
authorities, including Henriquez-Rivas v. Holder, 707 F.3d
1081 (9th Cir. 2013) (en banc), and Madrigal v. Holder, 716
F.3d 499 (9th Cir. 2013).
The panel concluded that Congress has not directly
spoken to the interplay between 8 U.S.C. § 1158(a)(1)
(permitting “[a]ny alien” to apply for asylum “irrespective of
such alien’s status”) and 8 U.S.C. § 1231(a)(5) (barring aliens
subject to reinstated removal orders from “any relief under”
chapter 12 of title 8 of the U.S. Code, which includes the
asylum statute).
At Chevron step two, however, the agency’s
reconciliation of these two provisions through 8 C.F.R.
§ 1208.31(e) was reasonable, and hence entitled to deference.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PEREZ-GUZMAN V. LYNCH 3
The panel also held that the petitioner’s procedural
challenges to § 1208.31(e), under the Administrative
Procedure Act, were untimely because they were not brought
within six years after adoption of the regulation.
COUNSEL
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.
4 PEREZ-GUZMAN V. LYNCH
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
PEREZ-GUZMAN V. LYNCH 5
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
(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, guerillas 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.
6 PEREZ-GUZMAN V. LYNCH
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
PEREZ-GUZMAN V. LYNCH 7
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),
1
Unless otherwise noted, all citations are to title 8 of the United States
Code.
8 PEREZ-GUZMAN V. LYNCH
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 (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. 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
(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
PEREZ-GUZMAN V. LYNCH 9
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 for withholding of removal only.”
8 C.F.R. § 1208.31(e) (emphasis added).3 The notice
published in the Federal Register stated in its summary that
“[f]or persons subject to reinstatement, . . . the rule
establishes a screening mechanism” similar to the one used in
expedited removal proceedings. See Regulations Concerning
the Convention Against Torture, 64 Fed. Reg. 8478, 8478
2
The regulation was originally promulgated as 8 C.F.R. § 208.31(e), but
the administrative regulations governing immigration proceedings were
recodified in 2003 to reflect the transfer of the Immigration and
Nationality Service’s functions to DHS. See Aliens and Nationality;
Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824
(Feb. 28, 2003). For convenience, we refer to the regulation as 8 C.F.R.
§ 1208.31(e) throughout this opinion.
3
A separate regulation permits an individual subject to a reinstated
removal order to seek CAT protection as well. See 8 C.F.R.
§ 1208.16(c)(4).
10 PEREZ-GUZMAN V. LYNCH
(Feb. 19, 1999). The notice went on to explain that the new
process was intended “to rapidly identify and assess” claims
for withholding of removal and CAT protection made by
individuals subject to reinstated removal orders and other
forms of expedited removal to “allow for the fair and
expeditious resolution of such claims without unduly
disrupting the streamlined removal processes applicable to
these aliens.” Id. at 8479; see also id. at 8485 (discussing
8 C.F.R. § 1208.31 specifically). The notice further stated the
agency’s conclusion that such individuals, including “aliens
subject to reinstatement of a previous removal order under
[§ 1231(a)(5)],” were “ineligible for asylum” but “may be
entitled to withholding of removal” or CAT protection. Id. at
8485. The notice identified a number of statutes giving the
agency authority to promulgate regulations to govern asylum
and withholding procedures, including § 1158. See id. at
8487 (listing the authorities for 8 C.F.R. Part 208 generally).
II. Discussion
As noted, the parties agree remand is appropriate on
Perez’s withholding of removal and CAT claims in light of
intervening circuit precedent. The only disputed question is
whether Perez is entitled to a remand on his asylum claim as
well. We conclude he is not.
A. Exhaustion
At the outset, we reject the government’s contention that
Perez failed to exhaust his argument for asylum eligibility
before the BIA. Although we generally lack jurisdiction to
review a final agency order unless administrative remedies
have been exhausted, see Alvarado v. Holder, 759 F.3d 1121,
1127 (9th Cir. 2014), exhaustion is not required where it
PEREZ-GUZMAN V. LYNCH 11
would be futile to raise a particular issue before the agency.
Here, the BIA rejected Perez’s asylum claim under 8 C.F.R.
§ 1208.31(e), which bars individuals in reinstatement
proceedings from applying for asylum. Because the BIA had
no authority to disregard this regulation, exhaustion would
have been futile. See Coyt v. Holder, 593 F.3d 902, 905 (9th
Cir. 2010) (“Because the BIA has no authority to declare a
regulation invalid, ‘the exhaustion doctrine does not bar
review of a question concerning the validity of an INS
regulation because of a conflict with a statute.’” (quoting
Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1273 (9th Cir.
1996))); Espinoza-Gutierrez, 94 F.3d at 1273 (observing that
an argument contesting the validity of an agency’s own
regulations will “necessarily . . . fall[] on deaf ears” because
the BIA “simply has no authority to invalidate a regulation
that it is bound to follow”).
B. Asylum
Perez argues the asylum statute’s language permitting
“[a]ny alien” to apply for asylum “irrespective of such alien’s
status” unambiguously permits him to apply for asylum
notwithstanding his reinstated removal order. § 1158(a)(1).
The government, in response, argues the reinstatement bar’s
statement that an individual subject to a reinstated removal
order “is not eligible and may not apply for any relief under
this chapter” unambiguously makes Perez ineligible to apply
for asylum, a form of relief arising under the same chapter.
§ 1231(a)(5). The question is whether § 1158’s permission
to apply for asylum or § 1231(a)(5)’s denial of any relief
falling within the same chapter governs the class of
individuals who, like Perez, are subject to reinstated removal
orders.
12 PEREZ-GUZMAN V. LYNCH
To answer this question of statutory interpretation, we
follow the framework laid out in Chevron. “Under the first
step, we determine ‘whether Congress has directly spoken to
the precise question at issue.’” Humane Soc’y of U.S. v.
Locke, 626 F.3d 1040, 1054 (9th Cir. 2010) (quoting
Chevron, 467 U.S. at 842–43). If the intent of Congress is
clear, our inquiry ends and we give effect to Congress’
unambiguously expressed intent. See id. If, on the other
hand, Congress has not spoken to a particular issue or the
statute is ambiguous, we may consider the responsible
agency’s interpretation of the statutory scheme. “[I]f the
implementing agency’s construction is reasonable, Chevron
requires a federal court to accept the agency’s construction of
the statute, even if the agency’s reading differs from what the
court believes is the best statutory interpretation.” Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 980 (2005).
In addressing this question, we are not writing on a clean
slate. Three other circuits have already considered the
interplay between § 1158 and § 1231. Each has concluded
that individuals subject to reinstated removal orders may not
apply for asylum relief. See Jimenez-Morales v. U.S. Att’y
Gen., 821 F.3d 1307, 1310 (11th Cir. 2016); Ramirez-Mejia
v. Lynch, 794 F.3d 485, 491 (5th Cir. 2015) (relying on
§ 1231(a)(5)’s plain language, as well as relevant regulations
and case law); Herrera-Molina v. Holder, 597 F.3d 128,
138–39 (2d Cir. 2010) (discussing § 1231(a)(5)’s text as well
as relevant circuit precedent and regulations). Although we
find these opinions persuasive in some respects, those circuits
did not discuss § 1158(a)(1), but mentioned it only in passing,
see Ramirez-Mejia, 794 F.3d at 490, or not at all, see
Jimenez-Morales, 821 F.3d at 1310; Herrera-Molina,
597 F.3d at 38–39. Thus, although we reach the same
PEREZ-GUZMAN V. LYNCH 13
conclusion as these other courts, we do so on somewhat
different reasoning.
1. Chevron Step One
At step one of Chevron, we conclude Congress has not
directly spoken to the interplay of § 1158(a)(1) and
§ 1231(a)(5). On the contrary, § 1158(a)(1) and § 1231(a)(5)
are in apparent conflict. Section 1158 broadly grants “any
alien” the opportunity to seek asylum, “regardless of such
alien’s status,” subject only to a few exceptions not applicable
here. Section 1231, by contrast, expressly bars aliens subject
to reinstated removal orders from any relief under chapter 12,
the chapter that includes asylum. In attempting to resolve this
apparent conflict, we begin with the language of the statute,
reading it in context and giving undefined terms their
ordinary meanings. See CSX Transp., Inc. v. Ala. Dep’t of
Revenue, 562 U.S. 277, 283–84 (2011); Synagogue v. United
States, 482 F.3d 1058, 1061–62 (9th Cir. 2007). “Our goal is
to understand the statute ‘as a symmetrical and coherent
regulatory scheme’ and to ‘fit, if possible, all parts into a
harmonious whole.’” Gila River Indian Cmty. v. United
States, 729 F.3d 1139, 1145 (9th Cir. 2013) (quoting FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133
(2000)).
Each party argues the plain language of § 1158 and
§ 1231(a)(5) can be harmonized by interpreting one section
as establishing an absolute rule to which the other section
must yield. Perez contends § 1231(a)(5) does not really bar
“any relief” under chapter 12, whereas the government says
§ 1158(a)(1) does not really permit “any alien” to apply for
asylum. “Read naturally, the word ‘any’ has an expansive
meaning.” United States v. Gonzalez, 520 U.S. 1, 5 (1997).
14 PEREZ-GUZMAN V. LYNCH
But within a particular statute, “[a]mbiguity is a creature . . .
of statutory context.” Brown v. Gardner, 513 U.S. 115, 118
(1994); see also Dada v. Mukasey, 554 U.S. 1, 16 (2008) (“In
reading a statute we must not ‘look merely to a particular
clause,’ but consider ‘in connection with it the whole
statute.’” (quoting Kokozha v. Belford, 417 U.S. 642, 650
(1974)).
We agree with the parties that although both subsections
use absolute language, each is qualified in certain respects
when read in context. The text of § 1158(a)(1) states that
“[a]ny” alien may apply for asylum “in accordance with this
section,” regardless of immigration status. § 1158(a)(1). The
rest of § 1158, however, undercuts the breadth of that
guarantee by including a series of exceptions preventing
certain aliens from applying under specific circumstances.
See § 1158(a)(2)(A)–(C). Section 1231(a)(5)’s text is
perhaps stronger in stating that the reinstatement of a prior
removal order precludes “any relief under this chapter.”
§ 1231(a)(5). But our well-settled interpretation of
§ 1231(a)(5) recognizes that, notwithstanding the prohibition
on “any relief,” withholding of removal and CAT protection
are available to individuals in reinstatement proceedings. See
Ixcot v. Holder, 646 F.3d 1202, 1207 (9th Cir. 2011)
(“Notwithstanding the seemingly absolute bar . . . aliens
subject to [§ 1231(a)(5)] ‘may seek withholding of removal’
. . . .” (quoting Fernandez-Vargas, 548 U.S. at 35 n.4));
Ortiz-Alfaro v. Holder, 694 F.3d 955, 956 n.1 (9th Cir. 2012)
(assuming CAT “constrains the Attorney General from
removing aliens . . . notwithstanding” the language of
§ 1231(a)(5)). The Attorney General’s regulations agree. See
8 C.F.R. § 1208.31(e) (allowing withholding of removal);
PEREZ-GUZMAN V. LYNCH 15
8 C.F.R. § 1208.16(c)(4) (allowing CAT protection); 8 C.F.R.
§ 214.14(c)(1)(ii) (allowing U Visas).4
The relevant question, however, is not simply whether the
two provisions are absolute, but how Congress intended to
harmonize them. If one subsection’s text were clearly
intended to take precedence over the other, our inquiry would
be at an end. That both provisions are qualified in certain
respects moves us no closer to a clear answer. Neither
subsection gives an indication of how Congress intended to
resolve a conflict between the two. We therefore turn to the
other “traditional tools of statutory construction” in search of
an answer. See Chevron, 467 U.S. at 843 n.9.
Both Perez and the government invoke the canon of
generalia specialibus non derogant – the “principle that the
specific governs the general” – to advance their preferred
interpretation of the statutory scheme. See Nitro-Lift Techs.,
LLC v. Howard, 133 S. Ct. 500, 504 (2012). The canon
provides that a “narrow, precise, and specific” statutory
provision is not overridden by another provision “covering a
more generalized spectrum” of issues. Radzanower v. Touche
Ross & Co., 426 U.S. 148, 153–54 (1976). When two statutes
come into conflict, courts assume Congress intended specific
4
The government suggested for the first time at oral argument that the
two sections do not actually conflict if “relief” is understood as a term of
art under the INA. It posits that, in barring any “relief,” § 1231(a)(5) does
not prevent individuals from seeking nondiscretionary forms of
“protection” like withholding of removal and protection under CAT.
Although one other circuit found this purported distinction persuasive, see
Ramirez-Mejia, 794 F.3d at 489, we treat this argument as waived because
any textual distinction between the two terms was raised for the first time
at oral argument, see Harger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th
Cir. 2009).
16 PEREZ-GUZMAN V. LYNCH
provisions to prevail over more general ones, see Fourco
Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228–29
(1957), the assumption being that the more specific of two
conflicting provisions “comes closer to addressing the very
problem posed by the case at hand and is thus more deserving
of credence,” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 183 (2012).
As Scalia and Garner acknowledge, however, it is
“[s]ometimes . . . difficult to determine whether a provision
is a general or a specific one.” Id. at 187. Here, the difficulty
is that each subsection is specific in certain respects and
general in others. Section 1158(a)(1) is more specific in that
it speaks narrowly to the rules governing asylum applications.
Conversely, § 1231(a)(5) is more specific in that it speaks
directly to the particular subset of individuals, like Perez, who
are subject to reinstated removal orders. Although the
government’s position may have a slight edge, both parties’
arguments on this point are sensible. We conclude the
general-specific canon does not help to clearly discern
Congress’s intent as to which section should take precedence
here.
Nor does the legislative history of § 1158 and
§ 1231(a)(5) resolve this ambiguity. IIRIRA’s amendments
to the INA show Congress intended to add more detail to the
existing asylum scheme while simultaneously expanding the
scope and consequences of the reinstatement of an earlier
removal order. Because neither party has identified any
legislative materials speaking directly to the availability of
asylum in reinstatement proceedings, however, we conclude
the legislative history “is silent on the precise issue before
us.” Chevron, 467 U.S. at 862.
PEREZ-GUZMAN V. LYNCH 17
Perez and amici argue IIRIRA broadened the scope of
§ 1158 when it amended the statute slightly to allow “[a]ny
alien,” rather than “an alien,” to apply for asylum. But the
rest of § 1158(a)(1)’s text reenacted the existing language
permitting the alien, “regardless of such alien’s status, to
apply for asylum.” Compare 8 U.S.C. § 1158(a) (1980)
(permitting “an alien physically present in the United States,
. . . , irrespective of such alien’s status, to apply for asylum”),
with id. § 1158(a)(1) (1996) (providing that “[a]ny alien who
is physically present in the United States . . . , irrespective of
such alien’s status, may apply for asylum”). We are reluctant
to assume Congress’ intent is clear from this change alone,
and must read this amendment in concert with the
simultaneous enactment of § 1231(a)(5), which was a
completely new addition in IIRIRA. In adopting both
changes simultaneously, Congress effectively adopted “a
clear limitation in one section” – § 1231(a)(5) – “without
amending another section” dealing with the same subject
matter. See Ramirez-Mejia, 794 F.3d at 490. This might
suggest Congress assumed § 1231(a)(5)’s use of the phrase
“any relief under this chapter” would most naturally be read
as precluding asylum applications. See McNary v. Haitian
Refugee Ctr., Inc., 498 U.S. 479, 496 (1991) (“It is
presumable that Congress legislates with knowledge of our
basic rules of statutory construction. . . .”).
In sum, when read in context and compared with each
other, § 1158(a)(1) and § 1231(a)(5) reveal no clear
congressional intent on how to resolve a claim, like Perez’s,
which places the two sections in conflict. Both provisions
appear to establish broad and conflicting rules. On closer
examination, however, it is apparent that both provisions are
qualified in certain respects – § 1158 by various textual
exceptions, and § 1231(a)(5) by the government’s practice
18 PEREZ-GUZMAN V. LYNCH
and our precedent. Furthermore, we cannot say the general-
specific canon clearly resolves the ambiguity in the statutory
scheme.5 We therefore conclude Congress has not spoken
directly to whether individuals subject to reinstated removal
orders may apply for asylum. We accordingly proceed to
Chevron’s second step, where we ask whether the agency’s
interpretation of an ambiguous statute is a permissible
construction of the statutory scheme. See Chevron, 467 U.S.
at 843.
2. Chevron Step Two
Before we address the substance of the agency’s
interpretation, we must briefly discuss Perez and amici’s
argument that 8 C.F.R. § 1208.31(e) should not be accorded
Chevron deference because the agency failed to adequately
explain its reasoning when it promulgated the regulation in
1999. We do not reach the merits of this argument because
it is untimely.
5
Perez also cites the “longstanding principle of construing any lingering
ambiguities in [removal] statutes in favor of the alien.” INS v. Cardoza-
Fonseca, 480 U.S. 421, 449 (1987). Like the rule of lenity, this rule is a
tiebreaker in the case of insoluble – or “lingering” – ambiguity. Id.; see
Lagandaon v. Ashcroft, 383 F.3d 983, 993 (9th Cir. 2004). As we have
held in the criminal context, however, “[t]he rule of lenity . . . does not
prevent an agency from resolving statutory ambiguity through a valid
regulation.” Pacheco-Camacho v. Hood, 272 F.3d 1266, 1271–72 (9th
Cir. 2001) (citing Babbitt v. Sweet Home Chapter of Cmtys. for a Great
Or., 515 U.S. 687, 704 n.18 (1995)); see also Mujahid v. Daniels,
413 F.3d 991, 998–99 (9th Cir. 2005) (prioritizing the rule of lenity over
Chevron deference “is tenuous at best and requires us to fill in more
blanks than we are willing to do”).
PEREZ-GUZMAN V. LYNCH 19
a. Timeliness
Procedural challenges to agency rules under the
Administrative Procedure Act are subject to the general six-
year limitations period in the U.S. Code. See Wind River
Mining Corp. v. United States, 946 F.2d 710, 713–14 (9th
Cir. 1991) (citing 28 U.S.C. § 2401(a)). Under Wind River,
challenges to a “mere procedural violation in the adoption of
a regulation or other agency action” must be brought within
six years of the agency rulemaking, whereas challenges to
“the substance of an agency’s decision as exceeding
constitutional or statutory authority” may be brought any time
“within six years of the agency’s application of the disputed
decision to the challenger.” Id. at 715–16. Whether Perez’s
challenges are timely therefore depends on whether they are
procedural or substantive.6
Perez’s central claim is that the Attorney General’s
refusal to consider his asylum application is based on an
unreasonable interpretation of § 1158 and § 1231(a)(5). The
parties agree this is a substantive challenge. Because it was
brought within six years of the BIA’s refusal to consider
Perez’s asylum application, it is timely. See Cal. Sea Urchin
Comm’n v. Bean, ___ F.3d ___, 2016 WL 3739700, at *4 (9th
6
Perez argues we should not rule on timeliness because the government
did not raise it until supplemental briefing. We have given both parties
“ample opportunity to address the issue” through supplemental briefing,
and will exercise our discretion to decide it. U.S. Nat’l Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447–48 (1993). Although
the government suggested in supplemental briefing that Perez’s challenge
is substantive, there is no “impropriety in refusing to accept what in effect
[is the parties’] stipulation on a question of law.” Id. at 448. In addition,
the government noted that “[i]f this were . . . a procedural challenge . . .
it would be time-barred.”
20 PEREZ-GUZMAN V. LYNCH
Cir. July 12, 2016) (holding timely a challenge to “the present
application of an earlier rule that allegedly contradicted the
agency’s statutory authority”).
Perez and amici also argue that 8 C.F.R. § 1208.31 merits
no deference at Chevron step two because the agency
allegedly failed to explain its interpretation of § 1158 and
§ 1231 when it originally promulgated the regulation. This
portion of their challenge, in other words, alleges “a
procedural violation in the adoption of a regulation.” Wind
River, 946 F.2d at 714. We conclude that although Perez’s
arguments about the substance of 8 C.F.R. § 1208.31’s
interpretation are timely, his arguments about the alleged
procedural errors in its promulgation are not. We therefore
decline to consider them. See also Sai Kwan Wong v. Doar,
571 F.3d 247, 262–63 (2d Cir. 2009) (collecting cases).
The Supreme Court’s recent decision in Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016), supports
this approach. There, the Court held an agency regulation
that represented a change in longstanding agency position
was not entitled to Chevron deference because the agency had
failed to adequately explain its change in position. The Court
explained that a “basic procedural requirement[] of
administrative rulemaking is that an agency must give
adequate reasons for its decisions.” Id. at 2125 (emphasis
added); see also id. (“Chevron deference is not warranted
where the regulation is ‘procedurally defective’ – that is,
where the agency errs by failing to follow the correct
procedures in issuing the regulation.”). “Of course,” it noted,
“a party might be foreclosed in some instances from
challenging the procedures used to promulgate a given rule.”
Id. (citing JEM Broad. Co. v. FCC, 22 F.3d 320, 324–26
(D.C. Cir. 1994)).
PEREZ-GUZMAN V. LYNCH 21
JEM Broadcasting arose in a similar procedural posture
to this case. The FCC had earlier promulgated a rule
preventing review of certain license applications that included
inaccurate or incomplete information. See JEM Broad.,
22 F.3d at 322–23. The FCC subsequently declined to review
JEM’s defective application by citing that rule, and JEM
sought to “attack . . . the procedural genesis of the [rule] in
the context of an enforcement action,” by arguing the rule had
been improperly promulgated without notice and comment
years earlier. Id. at 324. The D.C. Circuit held JEM’s
challenge was untimely:
JEM does not claim . . . that the “hard look”
rules are unconstitutional, that they exceed the
scope of the FCC’s substantive authority, or
. . . that the rules are premised on an
erroneous interpretation of a statutory
term. . . .
[C]hallenges to the procedural lineage of
agency regulations, whether raised by direct
appeal . . . or as a defense to an agency
enforcement proceeding, will not be
entertained outside the . . . period provided by
statute.
Id. at 325 (quoting Mountain States Tel. & Tel. Co. v. FCC,
939 F.2d 1035, 1040 (D.C. Cir. 1991)). Although it
recognized that “some parties – such as those not yet in
existence when a rule is promulgated” – would “never . . .
have the opportunity to challenge the procedural lineage of
rules that are applied to their detriment,” the court concluded
“the law countenances this result because of the value of
repose.” Id. at 326. We have reached the same conclusion.
22 PEREZ-GUZMAN V. LYNCH
See Wind River, 946 F.2d at 715 (“The government’s interest
in finality outweighs a late-comer’s desire to protest the
agency’s action as a matter of policy or procedure.”); see also
Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1129 (9th
Cir. 1999) (noting a limitations period on procedural
challenges is necessary “so that regulations are not
indefinitely subject to challenge in court”).7
In the absence of binding contrary authority, we apply the
approach required by Wind River and approved by the
Supreme Court in Encino Motorcars to conclude Perez’s
procedural challenge to 8 C.F.R. § 1208.31(e) falls outside
the limitations period. We therefore move on to determine
whether 8 C.F.R. § 1208.31(e) is a permissible construction
of the statute under Chevron step two.
b. The Chevron Step Two Inquiry
At step two of Chevron, we must “accept the agency’s
construction of the statute” so long as that reading is
reasonable, “even if the agency’s reading differs from what
the court believes is the best statutory interpretation.” Brand
7
Perez also argues his challenge is timely because the agency “fail[ed]
to put aggrieved parties on reasonable notice of the rule’s content.” JEM
Broad., 22 F.3d at 326. We disagree. We noted in Wind River that
“‘[p]ublication in the Federal Register is legally sufficient notice to all
interested or affected persons regardless of actual knowledge or hardship
resulting from ignorance.’” 946 F.2d at 714 (alteration in original)
(quoting Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364
(9th Cir. 1990)). Here, the notice published in the Federal Register was
sufficient to inform an interested party the regulation created a streamlined
system for assessing claims from individuals in reinstatement proceedings
and that the agency viewed such individuals as ineligible for asylum. See
64 Fed. Reg. at 8485, discussed above at pp. 9–10.
PEREZ-GUZMAN V. LYNCH 23
X Internet Servs., 545 U.S. at 980. Deference “is especially
appropriate in the immigration context where officials
‘exercise especially sensitive political functions that implicate
questions of foreign relations.’” INS v. Aguirre-Aguirre,
526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94,
110 (1988)). With these principles in mind, we consider
whether 8 C.F.R. § 1208.31(e), which prevents individuals
subject to reinstated removal orders from applying for asylum
but permits them to seek withholding of removal, is a
reasonable interpretation of § 1158 and § 1231. We conclude
it is.8
8
Perez and amici argue 8 C.F.R. § 1208.31(e) does not merit Chevron
deference because the agency failed to exercise its interpretive authority
at all and treated § 1231(a)(5) as unambiguous. They therefore suggest we
should remand to the agency under the rule expressed in Negusie v.
Holder, 555 U.S. 511 (2009), and Gila River Indian Community v. United
States, 729 F.3d 1139 (9th Cir. 2013). We reject this suggestion. The
government’s argument on appeal that the statute is unambiguous does not
tell us how the agency viewed the statute when it initially promulgated the
regulation. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213
(1988) (noting appellate counsel’s “convenient litigating position” is not
entitled to deference). Rather, agency action rises or falls on the agency’s
own contemporaneous reasoning, and where we have remanded under
Negusie the administrative record has more clearly shown that “the agency
misapprehended the clarity of the statute” and “mistakenly derermine[d]
that its interpretation [was] mandated by plain meaning, or some other
binding rule,” Gila River, 729 F.3d at 1149 (emphasis added). The
administrative history does not discuss the specific language of the asylum
statute, but neither does it suggest the agency saw § 1231(a)(5) as
compelling the regulation’s particular approach to asylum, withholding of
removal or CAT protection. On the contrary, the agency’s explanation
shows it applied its expertise by crafting an expedited screening process
and balancing the fair resolution of claims for relief from removal against
Congress’ desire to provide for streamlined removal of certain classes of
individuals, including those subject to reinstated removal orders. See
64 Fed. Reg. at 8485, discussed above at pp. 9–10.
24 PEREZ-GUZMAN V. LYNCH
First, the regulation is consistent with a reasonable
judgment that § 1231(a)(5) is a more specific provision than
§ 1158, even if not conclusively so, and is therefore “more
deserving of credence” when the two provisions conflict.
Scalia & Gardner, supra, at 183. As discussed, both parties
advance reasonable arguments for why the canon favors their
interpretations of the statutory scheme. At step two, however,
“we are not deciding between two plausible statutory
constructions; we are evaluating an agency’s interpretation of
a statute under Chevron.” Morales-Izquierdo v. Gonzales,
486 F.3d 484, 492 (9th Cir. 2007) (en banc). It was not
unreasonable for the agency to conclude § 1231(a)(5)’s
prohibition on “any relief under this chapter” forecloses
individuals from applying for asylum relief. Indeed, the other
circuits to consider this issue have concluded it does. See
Jimenez-Morales, 821 F.3d at 1310; Ramirez-Mejia, 794 F.3d
at 490; Herrera-Molina, 597 F.3d at 138–39.
Second, the agency’s approach is consistent with
Congress’ intent in IIRIRA that the reinstatement of a
previous removal order would cut off certain avenues for
relief from removal. Reinstatement was designed to be “a
different and far more summary procedure” than regular
removal. Moralez-Izquierdo, 486 F.3d at 491. To that end,
Congress intended § 1231(a)(5) to subject more individuals
to reinstatement proceedings and to “limit[] the possible relief
from a removal order available to them.” Fernandez-Vargas,
548 U.S. at 33; see also Ramirez-Mejia, 794 F.3d at 490.
Forbidding asylum applications from individuals in
reinstatement proceedings, although harsh, is in keeping with
this approach. See Barnhart v. Walton, 535 U.S. 212, 219
(2002) (upholding an agency construction that made
“considerable sense in terms of the statute’s basic
objectives”). Furthermore, the agency’s interpretation is a
PEREZ-GUZMAN V. LYNCH 25
reasonable construction of the legislative history we
discussed above, which is at least consistent with the view
that, in enacting § 1158(a)(1) and § 1231(a)(5) together,
Congress assumed the phrase “any relief under this chapter”
would include the asylum provision in the statute. See
Chevron, 467 U.S. at 862 (noting that when legislative history
“as a whole is silent” on the “precise issue” before the court,
it may nonetheless be “consistent” with a particular
interpretation of the statute). Had Congress intended to
include a carve-out for asylum relief, it could have done so
explicitly when it wrote § 1231(a)(5) or revised § 1158.
There are nonetheless some weaknesses in the agency’s
approach, but they are not fatal to its interpretation. We have
already noted that, notwithstanding § 1231(a)(5)’s bar on
“any relief” under chapter 12, the Attorney General has
interpreted that section to permit individuals to seek
withholding of removal, CAT protection and U Visas – all
forms of relief that, like asylum, arise under chapter 12. See
8 C.F.R. §§ 214.14(c)(1)(ii), 1208.16(c)(4), 1208.31(e). The
government suggests this policy draws a reasonable line
between discretionary and nondiscretionary relief, and the
Supreme Court acknowledged “the practical import of th[at]
distinction,” albeit in a slightly different context. Cf. INS v.
Cardoza-Fonseca, 480 U.S. 421, 444 (1987) (holding it was
“not . . . at all anomalous” that asylum applicants and
applicants for withholding were governed by different
standards of proof and stating there was “no basis for the . . .
assertion that the discretionary/mandatory distinction has no
practical significance”).
This explanation, however, fails to account for why,
under the Attorney General’s regulations, individuals in
reinstatement are permitted to apply for U Visas – a form of
26 PEREZ-GUZMAN V. LYNCH
discretionary relief – but not for asylum. It may be relevant
that U Visas were created in 2000, four years after IIRIRA
implemented the revised asylum statute and the reinstatement
bar. See Victims of Trafficking and Violence Prevention Act
of 2000, Pub. L. No. 106-386, § 1513, 114 Stat. 1464. In
concluding that the Attorney General’s approach in 8 C.F.R.
§ 1208.31(e) is reasonable under Chevron, however, we note
the Supreme Court apparently found nothing inconsistent
between the “absolute terms” by which § 1231(a)(5) bars
relief and the government’s decision to make certain forms of
relief from removal available in reinstatement proceedings.
See Fernandez-Vargas, 548 U.S. at 35 n.4 (“Notwithstanding
the absolute terms in which the bar on relief is stated, even an
alien subject to [§ 1231(a)(5)] may seek withholding of
removal under [§ 1231(b)(3)] . . . , or under 8 C.F.R.
§§ 241.8(e) and 208.31. . . .” (emphasis added)); see also
Jimenez-Morales, 821 F.3d at 1310 (citing Fernandez-
Vargas, 548 U.S. at 35 n.4); Herrera-Molina, 597 F.3d at 139
n.8 (same).9 Although the availability of asylum is an
important component of our immigration law, it is not
unreasonable to conclude Congress intended to bar this form
of relief to persons in reinstated removal proceedings while
preserving relief for individuals able to meet the higher
standards for withholding of removal and CAT relief. See
Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016)
(denying rehearing en banc) (“Even if withholding of removal
and CAT protection are slightly less potent remedies than
9
In Fernandez-Vargas, the Supreme Court parenthetically described
8 C.F.R. §§ 241.8(e) and 208.31 as “raising the possibility of asylum.”
548 U.S. at 35 n.4. This appears to have been an oversight; although both
regulations refer to “asylum officers,” they clearly permit only
withholding from removal. Indeed, the main text of the Court’s footnote
correctly refers only to “seek[ing] withholding of removal” under those
regulations.
PEREZ-GUZMAN V. LYNCH 27
asylum, the difference may well be consistent with
Congress’s intent to penalize illegal reentry. We need not
justify the difference, but we note possible reasons for it.”).
In addition, although the Attorney General’s
interpretation makes sense as applied to an individual who
has already had an opportunity to seek asylum upon his initial
entry to the United States, it does not account for individuals
in reinstatement proceedings who may have compelling
claims based on new circumstances arising subsequent to
their previous removal proceedings. The Attorney General’s
interpretation of § 1231(a)(5) may have dire humanitarian
consequences for individuals in reinstatement who seek relief
from removal, either because they were previously denied
asylum and are now subject to changed circumstances or
because they were improperly denied an opportunity to seek
asylum during their earlier removal from the United States.
However, the government has discretion to forgo
reinstatement and instead place an individual in ordinary
removal proceedings. See Villa-Anguiano v. Holder,
727 F.3d 873, 878 (9th Cir. 2013). Once in ordinary
proceedings, the individual can raise an asylum application
without implicating § 1231(a)(5)’s bar. The government has
followed this procedure before, see, e.g., Maldonado Lopez
v. Holder, No. 12-72800 (9th Cir. dismissed Feb. 4, 2014),
and we assume it will continue to exercise that discretion in
appropriate cases, such as those presenting strong
humanitarian concerns. To the extent this consideration
“really centers on the wisdom of the agency’s policy, rather
than whether it is a reasonable choice within a gap left open
by Congress,” it cannot invalidate the agency’s interpretation
at Chevron’s second step. See Chevron, 467 U.S. at 866.
28 PEREZ-GUZMAN V. LYNCH
In sum, despite our reservations, we are not persuaded
that 8 C.F.R. § 1208.31(e)’s interpretation of § 1231(a)(5)
and § 1158(a)(1) is an unreasonable construction of the
statute. See Chevron, 467 U.S. at 843–44. It is consistent
with the broad language of § 1231(a)(5), with Congress’
intent to make reinstatement an expedited process for
removing individuals who reenter the United States and with
the overall legislative history of both provisions.
Perez’s remaining arguments to the contrary are not
persuasive. First, Perez and amici argue the Attorney
General’s interpretation of § 1231(a)(5) is contrary to the
structure of § 1158 itself. They focus in particular on
§ 1158(a)(2)(D), which provides that an applicant’s second
asylum application “may be considered” if he shows changed
circumstances materially affecting his eligibility for asylum.
Perez and amici argue that if § 1231(a)(5) categorically
forbids an individual in reinstatement from applying for
asylum, § 1158(a)(2)(D) is superfluous. This argument
incorrectly assumes that any individual to whom
§ 1158(a)(2)(D) applies will necessarily be subject to a
reinstated removal order. Not so. The reinstatement of a
prior removal order is neither “automatic” nor “obligatory,”
and the Attorney General has discretion not to reinstate an
individual’s earlier removal order and instead place him in
ordinary removal proceedings. See Villa-Anguiano, 727 F.3d
at 878 (quoting Alcala v. Holder, 563 F.3d 1009, 1013 (9th
Cir. 2009)). If the Attorney General elects to place an
individual who previously applied for and was denied asylum
into ordinary removal proceedings upon his reentry to the
United States, § 1158(a)(2)(D) is not superfluous. On the
contrary, it affirmatively authorizes a second asylum claim in
PEREZ-GUZMAN V. LYNCH 29
light of his changed circumstances – something that would
ordinarily be precluded by § 1158(a)(2)(C).10
Second, Perez and amici argue the asylum statute is a
“closed universe” unaffected by other portions of the INA.
In other words, they suggest § 1158’s enumerated exceptions
for eligibility to apply for asylum are exhaustive. Amici note
the asylum scheme makes no reference to § 1231(a)(5), and
suggest § 1158 was intended to govern asylum applications
independent of the rest of the INA. The Attorney General,
however, is not unreasonable for adopting a contrary view.
None of the various provisions for relief under the INA
explicitly refers to § 1231(a)(5), but § 1231(a)(5) specifies
“any relief under this chapter.” No explicit cross-reference to
every affected section is necessary for us to conclude that
“any relief under this chapter” can reasonably be read to
preclude applications for asylum, a form of relief arising
under chapter 12.
For the foregoing reasons, we hold that 8 C.F.R.
§ 1208.31(e) is a reasonable interpretation of the interplay
between § 1158 and § 1231, and we must therefore defer to
it under Chevron. In keeping with that regulation, Perez is
not eligible to apply for asylum under § 1158 as long as he is
subject to a reinstated removal order.
10
Perez is a first-time asylum claimant, and alleges no circumstances
that materially changed between his removal from the United States and
his subsequent reentry. We therefore have no opportunity here to
determine how § 1158(a)(2)(D) might affect § 1231(a)(5) in a case where
those two provisions are actually in conflict.
30 PEREZ-GUZMAN V. LYNCH
C. Withholding of Removal and CAT Relief
After the BIA concluded Perez had not shown past
persecution on account of his membership in a particular
social group, we held witnesses who testify against gang
members may constitute a “particular social group.” See
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir.
2013) (en banc). In addition, after the BIA rejected Perez’s
CAT claim because there was no evidence the Guatemalan
government sanctioned his abuse by police, we held that local
officials’ acquiescence in torture is sufficient to entitle an
applicant to CAT relief, even if the national government did
not acquiesce in the treatment. See Madrigal v. Holder,
716 F.3d 499, 509 (9th Cir. 2013). In light of these
intervening authorities, the parties agree we should remand
on Perez’s claims for withholding of removal and CAT relief.
III. Conclusion
We remand for the agency to reconsider Perez’s
applications for withholding of removal and CAT protection
in light of Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir.
2013) (en banc), and Madrigal v. Holder, 716 F.3d 499 (9th
Cir. 2013). We affirm the BIA’s conclusion that it could not
consider Perez’s application for asylum relief in light of his
reinstated removal order.
PETITION GRANTED IN PART AND DENIED IN
PART; REMANDED TO THE BIA.
Each party shall bear its own costs on appeal.