Sung Jang v. Loretta E. Lynch , 812 F.3d 1187 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUNG KIL JANG, No. 11-73587
Petitioner,
Agency No.
v. A099-065-047
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 6, 2015—Pasadena, California
Filed December 22, 2015
Before: Susan P. Graber and Ronald M. Gould, Circuit
Judges, and Wiley Y. Daniel,* Senior District Judge.
Opinion by Judge Graber
*
The Honorable Wiley Y. Daniel, Senior United States District Judge
for the District of Colorado, sitting by designation.
2 JANG V. LYNCH
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum, under the firm
resettlement doctrine, to a native of North Korea, who
relocated to South Korea.
The panel held that section 302 of the North Korean
Human Rights Act of 2004, 22 U.S.C. § 7842, which states
that a North Korean national “shall not be considered” a
South Korean national for refugee and asylum purposes, does
not preclude a finding, under 8 U.S.C. § 1158(b)(2)(A)(vi)
and 8 C.F.R. § 208.15, that a North Korean has “firmly
resettled” in South Korea.
COUNSEL
Judith L. Wood (argued), Law Offices of Judith L. Wood,
Los Angeles, California, for Petitioner.
Alexander J. Lutz (argued) and Dara S. Smith, Trial
Attorneys, and David V. Bernal, Assistant Director, Office of
Immigration Litigation, and Stuart F. Delery, Principal
Deputy Assistant Attorney General, Civil Division, United
States Department of Justice, Washington, D.C., for
Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
JANG V. LYNCH 3
OPINION
GRABER, Circuit Judge:
This case presents a single legal issue of first impression:
Does section 302 of the North Korean Human Rights Act of
2004 (“the Act”), 22 U.S.C. § 7842, preclude a finding that a
North Korean has “firmly resettled” in South Korea, 8 U.S.C.
§ 1158(b)(2)(A)(vi); 8 C.F.R. § 208.15, even though he
otherwise meets the requirements of firm resettlement? We
answer that question “no.” Accordingly, we deny the petition
for asylum.
FACTUAL AND PROCEDURAL HISTORY
Petitioner Sung Kil Jang was born in North Korea in 1977
and is a citizen of North Korea. It is undisputed that
Petitioner testified credibly and that he suffered persecution
in North Korea. Petitioner fled North Korea in 1998 by
swimming across a river into China. He resided in China for
more than a year, and then traveled briefly to Vietnam and
Cambodia, before arriving in South Korea in 2000.
Once relocated in South Korea, Petitioner settled in. He
attended and completed a two-year college, where he studied
engineering, after which he obtained work. Petitioner
remained in South Korea for more than four years and is also
a citizen of South Korea. After a waiting period, South Korea
issued him a passport, thus allowing him to travel. In
addition, he had the right to hold property, receive education,
and get public relief in South Korea. Petitioner’s older sister
lives in South Korea, with her husband and children, as does
one of Petitioner’s brothers. When asked whether he feared
returning to South Korea, Petitioner responded candidly:
4 JANG V. LYNCH
“It’s not that I fear going back to South Korea. I do not like
it. . . . I don’t have fear. I don’t have fear, but I hate it.”
Petitioner entered the United States in 2004. The
government issued him a Notice to Appear, charging him
with removability under 8 U.S.C. § 1182(a)(6)(A)(i), as an
alien present in the United States without being admitted or
paroled. Petitioner conceded removability but applied for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”).
The immigration judge (“IJ”) denied relief and ordered
Petitioner removed to South Korea because Petitioner “has in
fact been firmly resettled in South Korea.” The Board of
Immigration Appeals (“BIA”) dismissed Petitioner’s appeal
which, as relevant here, argued that the Act prevents the firm
resettlement bar from applying to asylum claims by North
Koreans who have relocated to South Korea. The IJ and the
BIA relied on the published decision in In re K-R-Y-, 24 I. &
N. Dec. 133 (B.I.A. 2007).1 Petitioner timely seeks review.
1
To the BIA, Petitioner also argued, unsuccessfully, that North Korea
and South Korea are a single country for immigration purposes; that
Petitioner did not, in fact, firmly resettle in South Korea because he was
forced to accept citizenship there and reasonably fears to return; and that
the IJ failed to consider certain claims. In addition, Petitioner argued to
the IJ and BIA that he was entitled to withholding of removal and CAT
protection. Petitioner does not renew any of those arguments here, so we
do not consider them. See, e.g., Rizk v. Holder, 629 F.3d 1083, 1091 n.3
(9th Cir. 2011) (“[B]ecause [the petitioner] did not raise [certain
arguments] in his opening brief, we deem those issues waived.”); Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (holding that arguments not
raised in a party’s opening brief generally are waived).
JANG V. LYNCH 5
STANDARDS OF REVIEW
Because the BIA issued a published, precedential decision
in In re K-R-Y-, we must defer to its interpretation of the
relevant immigration statute if that statute is ambiguous and
if the agency’s interpretation of it is a permissible one. Toor
v. Lynch, 789 F.3d 1055, 1059 (9th Cir. 2015). At step one of
the familiar Chevron analysis, we ask whether, “applying the
normal tools of statutory construction,” the statute is
ambiguous, INS v. St. Cyr, 533 U.S. 289, 321 n.45 (2001)
(internal quotation marks omitted); we consider this question
de novo, New Edge Network, Inc. v. FCC, 461 F.3d 1105,
1110 n.30 (9th Cir. 2006). “If the intent of Congress is clear,
that is the end of the matter . . . .” Chevron U.S.A. Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). But if the
statute is ambiguous, we move to step two of the Chevron
inquiry and consider whether the agency’s interpretation
permissibly construes the statute. Blandino-Medina v.
Holder, 712 F.3d 1338, 1343 (9th Cir. 2013).
DISCUSSION
Petitioner sought asylum under 8 U.S.C. § 1158(b), which
provides in relevant part:
(1) In general
(A) Eligibility
The Secretary of Homeland Security or
the Attorney General may grant asylum to an
alien . . . if the Secretary of Homeland
Security or the Attorney General determines
6 JANG V. LYNCH
that such alien is a refugee within the meaning
of section 1101(a)(42)(A) of this title.
....
(2) Exceptions
(A) In general
Paragraph (1) shall not apply to an alien if
the Attorney General determines that–
....
(vi) the alien was firmly resettled in
another country prior to arriving in the
United States.
(Emphases added.) “The term ‘refugee’ means (A) any
person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return to,
and is unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a well-
founded fear of persecution on account of [a protected
ground].” Id. § 1101(a)(42). Thus, even a person who
otherwise meets the definition of “refugee” is not permitted
to obtain asylum in the United States if “firmly resettled” in
a non-persecuting country. The firm resettlement bar furthers
“the core regulatory purpose of asylum, which is not to
provide applicants with a broader choice of safe homelands,
but rather, to protect refugees with nowhere else to turn.”
Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011) (per
curiam) (internal quotation marks and brackets omitted).
JANG V. LYNCH 7
Congress has not defined firm resettlement, but a
regulation explains the concept:
An alien is considered to be firmly
resettled if, prior to arrival in the United
States, he or she entered into another country
with, or while in that country received, an
offer of permanent resident status, citizenship,
or some other type of permanent resettlement
unless he or she establishes:
(a) That his or her entry into that country
was a necessary consequence of his or her
flight from persecution, that he or she
remained in that country only as long as was
necessary to arrange onward travel, and that
he or she did not establish significant ties in
that country; or
(b) That the conditions of his or her
residence in that country were so substantially
and consciously restricted by the authority of
the country of refuge that he or she was not in
fact resettled. In making his or her
determination, the asylum officer or
immigration judge shall consider the
conditions under which other residents of the
country live; the type of housing, whether
permanent or temporary, made available to
the refugee; the types and extent of
employment available to the refugee; and the
extent to which the refugee received
permission to hold property and to enjoy other
rights and privileges, such as travel
8 JANG V. LYNCH
documentation that includes a right of entry or
reentry, education, public relief, or
naturalization, ordinarily available to others
resident in the country.
8 C.F.R. § 208.15. As will become important to our analysis
below, neither the statute nor the regulation pegs the doctrine
of firm resettlement to a finding of nationality. Rather, the
considerations are practical ones designed to test whether the
alien was in fact living safely, with an offer of some type of
permanent resident status, and with the ability to enjoy a
variety of rights and privileges in another country.
For the purpose of our review, Petitioner concedes—as
the agency found—that he has “firmly resettled” in South
Korea within the meaning of the statute and the regulation.
He became a citizen of South Korea, remained there for more
than four years—by which time his ability to travel was no
longer restricted—enjoyed a wide range of rights, went to
college, got a job, and had family ties. Indeed, Petitioner
concedes that he would be “firmly resettled” on these facts
were the country in which he resided before coming to the
United States any country except South Korea. Petitioner
argues that section 302 of the North Korean Human Rights
Act of 2004 changes the analysis for a North Korean who
flees to South Korea.
Section 302 of the Act, codified at 22 U.S.C. § 7842,
provides in full:
(a) Purpose
The purpose of this section is to clarify
that North Koreans are not barred from
JANG V. LYNCH 9
eligibility for refugee status or asylum in the
United States on account of any legal right to
citizenship they may enjoy under the
Constitution of the Republic of Korea. It is
not intended in any way to prejudice whatever
rights to citizenship North Koreans may enjoy
under the Constitution of the Republic of
Korea, or to apply to former North Korean
nationals who have availed themselves of
those rights.
(b) Treatment of nationals of North Korea
For purposes of eligibility for refugee
status under section 1157 of Title 8, or for
asylum under section 1158 of Title 8, a
national of the Democratic People’s Republic
of Korea [North Korea] shall not be
considered a national of the Republic of
Korea [South Korea].
At step one of the Chevron analysis, we conclude that the
statute is clear and that it does not affect the analysis of firm
resettlement for a North Korean who flees to South Korea.
We therefore do not reach step two.2
2
As will become clear in our discussion, we rely on subsection (b),
whereas the BIA relied on subsection (a), a hortatory description of
congressional purpose. In re K-R-Y-, 24 I. & N. Dec. at 135–36. In our
view, that methodology is flawed. See District of Columbia v. Heller,
554 U.S. 570, 577–78 (2008) (holding that, “apart from that clarifying
function” of “resolv[ing] an ambiguity in the operative clause,” “a
prefatory clause does not limit or expand the scope of the operative
clause”). But we arrive at the same result the BIA reached, and our
10 JANG V. LYNCH
The operative subsection is (b), which prescribes the
treatment of nationals of North Korea. Importantly,
subsection (b) limits its application: “For purposes of
eligibility for refugee status under section 1157 of Title 8, or
for asylum under section 1158 of Title 8.” (Emphases added.)
Section 1158(b)(1)(A) makes an alien eligible for asylum
only if “such alien is a refugee within the meaning of section
1101(a)(42)(A) of this title.” To the same effect, under
§ 1157(c)(4), refugee status also depends on that definition.
In other words, operation of the Act depends on the
definition of “refugee.” To reiterate, a “refugee” is defined
as “any person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return to”
that country because of a well-founded fear of persecution.
Id. § 1101(a)(42)(A) (emphases added). “The term ‘national’
means a person owing permanent allegiance to a state.” Id.
§ 1101(a)(21). With respect to a person of dual nationality,
it is insufficient to establish a well-founded fear of
persecution in only one of the two countries. In re B-R-, 26
I. & N. Dec. 119, 122 (B.I.A. 2013). In other words, to
receive asylum, a person of dual nationality must demonstrate
a well-founded fear of persecution in both countries;
otherwise, eligibility for asylum cannot be demonstrated
because removal to the non-feared country is an available
option. Id.As noted earlier, the Act provides that, for purposes of
asylum, “a national of [North Korea] shall not be considered
a national of [South Korea].” This provision simply
eliminates a potential dual-nationality barrier to asylum. A
holding is consistent with the purpose set out in subsection (a) of the
statute.
JANG V. LYNCH 11
House Report explained that 22 U.S.C. § 7842 was “meant to
put to rest the erroneous opinion (proposed by some State
Department personnel) that, because North Koreans may be
able to claim citizenship if and when they relocate to South
Korea, they must be regarded as South Koreans for U.S.
refugee and asylum purposes, irrespective of whether they are
able or willing to relocate to South Korea.” H.R. Rep. No.
108-478(I) (2004), reprinted in 2004 U.S.C.C.A.N. 1186,
2004 WL 960518, at *22. The text of § 7842(b) clearly
achieves Congress’ aim: Because a North Korean national
“shall not be considered” a South Korean national for refugee
and asylum purposes, the potential dual-nationality problem
cannot arise.
By contrast, the Act has no effect on the analysis of
whether a North Korean has “firmly resettled” in South Korea
(or anywhere else). Indeed, the House Report noted that
South Korea was, and was likely to remain, “the destination
of choice for most escaping North Koreans” because of
shared language, ethnicity, and history, as well as family ties
in many cases. H.R. Rep. No. 108-478(I), 2004 WL 960518,
at *16. Nothing in the history of the Act suggests that it is
meant to disturb such voluntary resettlement. More
importantly for our Chevron step-one consideration, the text
of the Act contains no reference to firm resettlement. And
conversely, the firm resettlement statute and regulation do not
refer to nationality or require an analysis of the asylum
applicant’s nationality. When determining whether a person
has firmly resettled, it does not matter whether the person is
or is not a national of the country where resettlement is
alleged to have occurred. Instead, the regulation asks only
whether the person has received “an offer” of some type of
permanent status. 8 C.F.R. § 208.15; see Maharaj v.
Gonzales, 450 F.3d 961, 976 (9th Cir. 2006) (en banc)
12 JANG V. LYNCH
(holding that, in determining whether a petitioner has firmly
resettled, “[t]he focus . . . remains on receipt of an offer of
permanent resettlement”). It is irrelevant whether the person
has accepted the offer; it is irrelevant whether acceptance of
the offer would constitute the acquisition of nationality.
We hold, in summary, that 22 U.S.C. § 7842 is clear. It
does not affect the BIA’s conclusion that Petitioner has firmly
resettled in South Korea.
Petition DENIED.