Garcia-Garcia v. Sessions

United States Court of Appeals
For the First Circuit
Nos. 15-2571; 16-1964
VICTOR GARCIA GARCIA,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
Attorney General of the United States,*
Respondent.
PETITIONS FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Barron, Selya, and Stahl,
Circuit Judges.
Nancy J. Kelly, with whom John Willshire Carrera, the Harvard
Immigration & Refugee Clinic, and Greater Boston Legal Services
were on brief, for petitioner.
Kevin J. Conway, Attorney, Office of Immigration and
Litigation, Civil Division, United States Department of Justice,
with whom Andrew Oliveira, Trial Attorney, Office of Immigration
and Litigation, Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, and Justin Markel, Senior Litigation Counsel,
were on brief, for respondent.
* Pursuant to Fed. R. App. P. 4(c)(2), Attorney General
Jefferson B. Sessions, III has been substituted for former Attorney
General Loretta E. Lynch as the respondent.
May 3, 2017
BARRON, Circuit Judge. In this dispute, we must decide
whether aliens who are subject to reinstated orders of removal may
apply for asylum. Below, the immigration judge ("IJ") and the
Board of Immigration Appeals ("BIA") each concluded that such
aliens may not apply for asylum, even though they may be entitled
to withholding of removal. The IJ and the BIA based their
conclusions on certain provisions of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208,
110 Stat. 3009-546 ("IIRIRA"), as well as Department of Homeland
Security ("DHS") regulations that implement those provisions.
And, on that basis, the IJ and the BIA ruled that Victor Garcia
Garcia ("Garcia"), a citizen of Guatemala who is subject to a
reinstated order of removal, could not apply for asylum,
notwithstanding that the IJ determined (and the government does
not dispute) that he is entitled to withholding of removal due to
the persecution he would face in his home country.
Garcia now brings these consolidated petitions for
review, in which he challenges the IJ's and the BIA's denial of
his asylum application on the ground that a key provision of IIRIRA
plainly entitles him to seek asylum. He also contends that, in
any event, the DHS regulations are unreasonable, insofar as they
permit aliens subject to reinstated orders of removal to obtain
withholding of removal but not to apply for asylum, because he
contends that IIRIRA does not provide any basis for drawing such
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a distinction between withholding of removal and asylum. For the
reasons that follow, we uphold the agency decisions below.
I.
Immigration law is distinguished by its complexity more
than by its clarity. We thus need to provide some background
before we turn to the merits of the legal issue that we must
resolve. To do so, we first describe the distinction between
withholding of removal and asylum. We then describe the relevant
parts of IIRIRA -- some of which might appear on first glance to
be in tension with one another -- and the implementing regulations.
Finally, we recount how Garcia came to be subject to the reinstated
order of removal that the IJ and the BIA ruled stands in the way
of his asylum request.
A.
The distinction between withholding of removal and
asylum is subtle but important. We start by describing withholding
of removal.
Congress codified the right to withholding of removal
in 8 U.S.C. § 1231(b)(3)(A). IIRIRA § 305; see also INS v. Aguirre-
Aguirre, 526 U.S. 415, 420 (1999). This statute directs, in
categorical fashion, that, if the Attorney General decides that an
alien's "life or freedom would be threatened" in the country to
which he would be removed "because of the alien's race, religion,
nationality, membership in a particular social group, or political
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opinion," then "the Attorney General may not remove an alien to
[that] country." 8 U.S.C. § 1231(b)(3)(A).1
The roots of this statutory provision may be traced to
the 1951 United Nations Convention Relating to the Status of
Refugees, 189 U.N.T.S. 150 (July 28, 1951) (the "Refugee
Convention"). See INS v. Cardoza-Fonseca, 480 U.S. 421, 429
(1987). The United States acceded to the Refugee Convention by
ratifying the 1967 Protocol Relating to the Status of Refugees, 19
U.S.T. 6223 (Nov. 6, 1968) (the "Refugee Protocol"). By doing so,
the United States "agree[d] to comply with the substantive
provisions of Articles 2 through 34" of the Refugee Convention.
Cardoza-Fonseca, 480 U.S. at 429. Article 33.1 of the Refugee
Convention provides: "No Contracting State shall expel or return
('refouler') a refugee in any manner whatsoever to the frontiers
of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a
particular social group or political opinion." 19 U.S.T at 6276.2
18 U.S.C. § 1231(b)(3)(B) then describes certain specific
categories of aliens -- not including those subject to reinstated
removal orders -- who may not benefit from withholding of removal.
See 8 U.S.C. § 1231(b)(3)(B).
2A refugee is defined in Article 1(2) of the Refugee
Convention as someone who, "owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country."
19 U.S.T. at 6226.
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Thus, 8 U.S.C. § 1231(b)(3)(A) implements this "mandatory duty" of
the United States as a "contracting State[]" to the Refugee
Protocol. Cardoza-Fonseca, 480 U.S. at 429.
We now turn to asylum. Congress codified the right to
apply for asylum in 8 U.S.C. § 1158(a)(1), which provides: "Any
alien who is physically present in the United States or who arrives
in the United States . . . irrespective of such alien's status,
may apply for asylum in accordance with this section . . . ."
IIRIRA § 604; see also Aguirre-Aguirre, 526 U.S. at 420. Thus,
8 U.S.C. § 1158 lays out a "discretionary mechanism which gives
the Attorney General the authority to grant the broader relief of
asylum to refugees," Cardoza-Fonseca, 480 U.S. at 441 (emphasis
in original) -- that is, pursuant to 8 U.S.C. § 1101(a)(42)(A),
aliens who can show a "well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social
group, or political opinion." See also 8 C.F.R. §§ 208.13(b),
1208.13(b).
The roots of this statutory grant of the right to apply
for asylum may also be traced to the Refugee Protocol, in which
the United States acceded to the Refugee Convention. In
particular, Article 34 of the Convention provides: "The
Contracting States shall as far as possible facilitate the
assimilation and naturalization of refugees." 19 U.S.T. at 6276.
And, as the Supreme Court has explained, Congress's statutory
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mechanism for applying for asylum implements Article 34's
"precatory" language. Cardoza-Fonseca, 480 U.S. at 441.
The upshot of the domestic statutory provisions that
implement these two articles of the Refugee Convention is this:
aliens who can show a "clear probability" of persecution -- that
is, that "it is more likely than not that the alien would be
subject to persecution," INS v. Stevic, 467 U.S. 407, 424 (1984)
-- are "entitled to mandatory suspension of deportation," or, as
it is now known, withholding of removal, Cardoza-Fonseca, 480 U.S.
at 444 (emphasis in original). 8 U.S.C. § 1231(b)(3)(A). In
contrast, aliens "who can . . . show [only] a well-founded fear of
persecution" -- that is, refugees per the definition laid out in
8 U.S.C. § 1101(a)(42)(A) -- "are not entitled to anything."
Cardoza-Fonseca, 480 U.S. at 444 (emphasis in original). Instead,
pursuant to 8 U.S.C. § 1158, such aliens merely "are eligible for
the discretionary relief of asylum." Id. (emphasis in original);
see also Aguirre-Aguirre, 526 U.S. at 420 ("[W]hereas withholding
is mandatory unless the Attorney General determines one of the
exceptions applies, the decision whether asylum should be granted
to an eligible alien is committed to the Attorney General's
discretion.").
In Cardoza-Fonseca, the Court made clear that -- given
the differences between withholding of removal and asylum -- the
standards governing the two were necessarily different. 480 U.S.
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at 449-50. Specifically, the clear-probability test for
triggering the United States' mandatory duty to withhold removal
is more demanding than the "well-founded fear" test that must be
satisfied to trigger the Attorney General's exercise of his
discretion as to whether to grant asylum. Id.Withholding of removal and asylum also differ in another
key respect: they afford aliens distinct types of benefits. In
particular, asylum, though obtainable upon a less-demanding
showing, "affords broader benefits" to the recipient than does
withholding of removal. Cardoza-Fonseca, 480 U.S. at 428 n.6. As
the Ninth Circuit summarizes:
Unlike an application for asylum . . . a grant of an
alien's application for withholding is not a basis for
adjustment to legal permanent resident status, family
members are not granted derivative status, and [the
relief] only prohibits removal of the petitioner to the
country of risk, but does not prohibit removal to a non-
risk country.
Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004) (quoting
Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003) (second
alteration in the original)). In addition, aliens granted asylum
may be issued a refugee travel document, enabling them to travel
outside of the United States and subsequently return. By contrast,
aliens who are merely entitled to withholding of removal receive
no such benefit. 8 C.F.R. §§ 223.1, 223.2. They are simply
protected from being sent back to their home country. Thus, an
alien who is entitled to withholding of removal may still have an
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interest in seeking asylum, given the greater benefits it affords
an alien. See 8 U.S.C. § 1158(c)(1).3
Having described the distinction between withholding of
removal and asylum, and the statutes that enable aliens to obtain
each, we need to discuss one final statutory provision that is of
direct relevance to the issue we confront here. 8 U.S.C.
§ 1231(a)(5) -- part of section 305 of IIRIRA -- states that an
alien subject to a reinstated order of removal "is not eligible
and may not apply for any relief under . . . [chapter 12 of Title
8 of the U.S. Code], and the alien shall be removed under the prior
order at any time after the entry." 8 U.S.C. § 1231(a)(5). This
provision matters here because, as the parties to this dispute
agree, asylum is a form of "relief" under chapter 12.
Thus, the question arises as to how this seemingly
sweeping statutory bar to relief relates both to the seemingly
categorical grant of the right to seek asylum provided to aliens
in § 1158(a)(1) and to the directive to the Attorney General to
withhold removal in certain enumerated circumstances that is set
forth in § 1231(b)(3)(A). After all, that latter provision also
appears in chapter 12.
3 Aliens whose removal has been withheld are, however, like
aliens granted asylum, authorized to accept employment in the
United States. 8 C.F.R. § 274a.12(a)(5), (10).
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DHS, which is now charged with administering IIRIRA, has
offered its answer to that question. It has done so in regulations
that attempt to harmonize the three statutory provisions --
8 U.S.C. §§ 1258(a)(1), 1231(a)(5) and 1231(b)(3)(A) -- along with
the United States' obligations under the Convention Against
Torture ("CAT"). See United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 95 (entered into
force June 26, 1987); Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. 8478 (Feb. 19, 1999); see also Aliens
and Nationality; Homeland Security; Reorganization of Regulations,
68 Fed. Reg. 9824 (Feb. 28, 2003) (transferring the functions of
the Immigration and Naturalization Service to the Department of
Homeland Security and recodifying the regulations).4
The regulations do so as follows. First, 8 C.F.R.
§ 241.8(a) requires that an alien "who illegally reenters the
United States after having been removed . . . shall be removed
from the United States by reinstating the prior order." That
subsection further provides that such an alien "has no right to a
hearing before an immigration judge in such circumstances." Id.;
see also 8 C.F.R. § 1241.8(a).
4
Despite the transfer to DHS, the statutory responsibilities
assigned to the Attorney General that are "indigenous to the
functions of the Attorney General" were retained in the Department
of Justice. 68 Fed. Reg. at 9824.
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Subsection (e) of that regulation, however, then creates
an "[e]xception." It provides that an alien who "expresses a fear
of returning to the country designated in" his reinstated removal
order "shall be immediately referred to an asylum officer for an
interview to determine whether the alien has a reasonable fear of
persecution or torture pursuant to § 208.31 of this chapter."
8 C.F.R. § 241.8(e); see also 8 C.F.R. § 1241.8(e). The regulation
referenced at the end of this exception, 8 C.F.R. § 208.31(e), in
turn provides that:
If an asylum officer determines that an alien described
in this section has a reasonable fear of persecution or
torture, the officer shall so inform the alien and issue
a Form I–863, Notice of Referral to the Immigration
Judge, for full consideration of the request for
withholding of removal only.
(emphasis added); see also 8 C.F.R. § 1208.31(e).5
Thus, under the regulations, an alien subject to a
reinstated order of removal may not apply for asylum. However,
after such an alien has expressed a fear of persecution and after
an asylum officer has determined that fear to be reasonable, the
alien is entitled to withholding of removal to his home country if
the Attorney General then decides that the alien's life or freedom
5 8 C.F.R. § 208.16 governs the agency's consideration of the
alien's application for withholding of removal, whether made under
8 U.S.C. § 1231(b)(3)(A) or under the CAT. See 8 C.F.R.
§ 208.16(b), (c); § 1208.16(b), (c).
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would be threatened in his home country because of a protected
ground.
B.
With that legal background in place, we now turn to
Garcia's current plight. Garcia -- who speaks no English and only
minimal Spanish -- first entered the United States unlawfully in
2004. Three years later, in 2007, immigration authorities in the
United States apprehended Garcia, detained him, and then ordered
him removed from this country. From all that the record reveals,
it appears that Garcia would have been successful in obtaining
asylum had he sought it at that time. And, it appears, too, he
may have been entitled to withholding of removal. But, he did not
request either asylum or withholding of removal, apparently
because of the language barriers he faced and because he was
uncounseled. Accordingly, Garcia was removed to Guatemala in 2007.
After returning to Guatemala, Garcia then entered the
United States unlawfully for a second time in February 2015. Once
Garcia had crossed the border into the United States, immigration
authorities detained him. Released on his own recognizance, Garcia
was permitted to travel to Massachusetts to stay with family
members. Garcia was informed about two months later that his 2007
removal order would be reinstated. As the IJ noted, after
retaining counsel, Garcia "expressed a fear of return to Guatemala
on account of his ethnicity, family membership, and religious
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beliefs," and was referred to an asylum officer pursuant to
8 C.F.R. §§ 241.8(e) and 1241.8(e). See also 8 C.F.R. §§ 208.16,
1208.16 (laying out procedures for consideration of withholding of
removal under 8 U.S.C. § 1231(b)(3)(A) and under the CAT). The
asylum officer conducted the required interview and concluded that
Garcia had met his burden of showing a "reasonable fear of
persecution." 8 C.F.R. §§ 241.8(e), 1241.8(e).
Thereafter, Garcia's case was referred to an IJ. In an
oral decision issued on August 4, 2015, the IJ first concluded
that Garcia, whom the IJ found "credible," had met his burden,
pursuant to 8 U.S.C. § 1231(b)(3)(A), of showing that "future
persecution is 'more likely than not' to occur" in Guatemala and
therefore granted Garcia's application for withholding of removal.
Specifically, the IJ found that Garcia had experienced past
persecution "on account of [his] family membership as well as his
ethnicity inasmuch as [] Ladino [that is, mixed-race] soldiers,"
as well as government-affiliated paramilitary forces and gangs,
"had targeted his village, which was comprised almost exclusively
of Mayan indigenous individuals, for retaliation for the belief
that these individuals were aiding or assisting in any way the
guerilla movement during the civil war." And, the IJ found, "based
upon the evidence . . . that the predominant Ladino element will
not assist the Mayan community in fighting off the Ladino outlaw
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elements," and thus that Garcia had shown "a reasonable likelihood
of persecution or harm in the future by these same elements."
But, in addition to seeking withholding of removal,
Garcia had also argued to the IJ that he was eligible to apply for
asylum and thus to receive the additional benefits that such relief
would afford him. Garcia based this argument on the text of
8 U.S.C. § 1158(a)(1), which, he argued, entitled even an alien
subject to a reinstated removal order to seek asylum.
In his oral decision, the IJ rejected Garcia's argument
that he was eligible to seek asylum. The IJ held that asylum is
a form of "relief" provided by chapter 12 of Title 8 of the U.S.
Code and thus that 8 U.S.C. § 1231(a)(5) barred Garcia from
applying for it. The IJ also held that the DHS implementing
regulations supported this conclusion. Thus, the IJ concluded
that, by virtue of Garcia's reinstated removal order, and
notwithstanding § 1158(a)(1), Garcia was barred from seeking
asylum, regardless of whether he was entitled to withholding of
removal.
Garcia then appealed the IJ's oral ruling to the BIA.
On December 1, 2015, the BIA affirmed the IJ's decision in all
respects and remanded the case so that the IJ could conduct certain
background checks before ordering the withholding of Garcia's
removal. While awaiting the results of the background checks,
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Garcia petitioned for review in this court of the BIA's decision
denying his request to apply for asylum.
On July 6, 2016, while Garcia's petition was pending in
this court, the background checks were completed. At that point,
the IJ granted Garcia withholding of removal. In doing so, the IJ
also stated that the IJ's August 4, 2015 oral decision, which had
also denied Garcia's request to seek asylum, would become the
"official opinion in this case."
Following the IJ's July 6, 2016 order, Garcia petitioned
this court for review. Garcia also moved to consolidate that newly
filed petition for review with his pending petition for review of
the BIA's December 2015 ruling that also barred him from seeking
asylum. On August 18, 2016, we granted Garcia's unopposed motion
to consolidate his two petitions for review.
At oral argument before this court concerning these
consolidated petitions, the government agreed with Garcia that the
IJ's July 2016 order, which had been issued after the completion
of the background checks, and which granted Garcia withholding of
removal but barred him from applying for asylum, constituted a
final order over which we have jurisdiction. We also agree with
Garcia on that point, and so, our jurisdiction secure, see Cano-
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Saldarriaga v. Holder, 729 F.3d 25, 27 (1st Cir. 2013), we proceed
to the merits.6
II.
Garcia's right to apply for asylum under § 1158(a)(1)
turns on "questions implicating 'an agency's construction of the
statute which it administers.'" Vásquez v. Holder, 635 F.3d 563,
567 (1st Cir. 2011) (quoting Aguirre-Aguirre, 526 U.S. at 424).
We thus "apply the principles of deference described in Chevron
USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842 (1984)." Id. (quoting Aguirre-Aguirre, 526 U.S. at 424)
(brackets omitted).
"We first ask whether 'Congress has directly spoken to
the precise question at issue.'" Succar v. Ashcroft, 394 F.3d 8,
22 (1st Cir. 2005) (quoting Chevron, 467 U.S. at 842). "If so,
6 The dissent spends a great deal of time developing arguments
about a potential due process violation concerning Garcia's
initial removal and its bearing on the propriety of his reinstated
order of removal. But Garcia is arguing to us only that aliens
who are subject to reinstated orders of removal may seek asylum,
even though they may be barred from seeking other forms of relief.
Thus, the dissent's extended discussion of case law concerning
whether flaws in an underlying removal order may provide a basis
for challenging a reinstated order of removal has no bearing on
this appeal. That is no doubt why the due process issue on which
the dissent focuses is not only not "front and center" in Garcia's
briefing, post at 53, but also not set forth as a developed
argument at all about the only statutory issue that Garcia raises
-- namely, how to construe § 1231(a)(5) in light of § 1158(a)(1).
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courts, as well as the agency, 'must give effect to the
unambiguously expressed intent of Congress.'" Id. (quoting
Chevron, 467 U.S. at 842–43). But if we "determine[] Congress has
not directly addressed the precise question at issue," then we
must move on to the second step of the analysis. Chevron, 467 at
843. At this second step, "[we] do[] not simply impose [our] own
construction on the statute, as would be necessary in the absence
of an administrative interpretation." Id. Rather, "if the
implementing agency's construction is reasonable, Chevron requires
a federal court to accept the agency's construction of the
statute." Nat'l Cable & Telecomms. Ass'n v. Brand X Internet
Servs., 545 U.S. 967, 980 (2005); see also Succar, 394 F.3d at 23("If the statutory terms are ambiguous, then the principle of
Chevron deference to the Attorney General's choice must apply.")
A.
Garcia contends that § 1158(a)(1) unambiguously grants
him the right to seek asylum. He thus argues that he wins at
Chevron's first step.
In pressing this argument, Garcia acknowledges that
there is another provision of IIRIRA that could be read to take
away what § 1158(a)(1) otherwise appears to give: § 1231(a)(5).
That provision expressly bars aliens subject to reinstated orders
of removal from seeking "any relief" available under chapter 12 of
Title 8 of the U.S. Code, and Garcia does not dispute that asylum
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is a type of relief that is available under that chapter. 8 U.S.C.
§ 1231(a)(5). Nevertheless, Garcia argues that § 1158(a)(1)
unambiguously creates an exception to the bar that § 1231(a)(5)
otherwise appears to impose.7
In making this argument, Garcia cannot -- and does
not -- contend that § 1158(a)(1) actually repealed the bar that
§ 1231(a)(5) appears to establish. Both provisions were enacted
on the same day as part of the same statute: IIRIRA. Garcia
instead argues that, in enacting IIRIRA, Congress changed what had
been the relevant text of § 1158(a)(1). And Garcia argues that
Congress did so in a manner that clearly reflected an intention to
carve out an exception to § 1231(a)(5) for aliens seeking asylum.
Garcia points out that, pre-IIRIRA, § 1158(a)(1)
referred only to "an" alien being entitled to seek asylum
"irrespective of [the alien's] status." Refugee Act of 1980, Pub.
L. 96-212, § 208, 94 Stat. 102, 105 (emphasis added). But, Garcia
notes, IIRIRA changed the wording of the text. Section 1158(a)(1)
7 Garcia's argument regarding § 1158(a)(1), if accepted, would
not render § 1231(a)(5) a nullity. Chapter 12 provides for other
forms of relief, besides asylum: cancellation of removal, pursuant
to 8 U.S.C. § 1229b; voluntary departure as an alternative to
removal, pursuant to 8 U.S.C. § 1229c; and adjustment of status,
pursuant to 8 U.S.C. § 1255. See, e.g., Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 42 n.9, 44 n.10 (2006) (characterizing these
procedural avenues as forms of "relief"); Rodriguez v. Gonzales,
451 F.3d 60, 61 (2d Cir. 2006) (characterizing cancellation of
removal and adjustment of status as "relief"); see also Zambrano-
Reyes v. Holder, 725 F.3d 744, 752 (7th Cir. 2013) (characterizing
a motion to reopen removal proceedings as a form of relief).
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now refers to "any alien," while keeping the sweeping phrase
"irrespective of [the alien's] status." IIRIRA § 604 (emphasis
added). Garcia contends that this change from "an" to "any"
clearly shows that Congress intended the broad grant of the right
to seek asylum set forth in § 1158(a)(1) to take precedence over
§ 1231(a)(5)'s seemingly contradictory bar.8
We do not agree. As a matter of grammar, the word "any"
is not clearly more sweeping than is the word "an." Thus, the
change in wording need not be understood to reflect Congress's
intention that § 1158(a)(1) trumps the bar that § 1231(a)(5)
otherwise imposes. We are also reluctant to conclude that, insofar
as "any" might be thought to be somewhat more sweeping than "an,"
Congress used the subtle stratagem of replacing one indefinite
article with a different one to signal its unambiguous intent to
make an exception to an otherwise categorical bar that Congress
set forth the very same day in a different provision of the very
8 Adding force to Garcia's argument, these other forms of
relief are styled as grants of discretion to the Attorney General
to provide relief, rather than as a categorical grant of an
entitlement to any alien to seek it, as § 1158(a)(1) is styled.
Section 1229b(a), for instance, provides: "The Attorney General
may cancel removal" under certain circumstances. (emphasis
added). Likewise, § 1229c provides: "The Attorney General may
permit an alien voluntarily to depart the United States at the
alien's own expense . . . ." (emphasis added). Finally, § 1255
provides: "The status of an alien who was inspected and admitted
or paroled into the United States . . . may be adjusted by the
Attorney General, in his discretion and under such regulations as
he may prescribe, to that of an alien lawfully admitted for
permanent residence . . . ." (emphasis added).
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same statute. See Barraford v. T & N Ltd., 778 F.3d 258, 266 (1st
Cir. 2015) ("It has been said of statutes that one does not
normally hide elephants in mouseholes." (citing Whitman v. Am.
Trucking Ass'ns, Inc., 531 U.S. 457, 468 (2001))).
In addition, Garcia's reading of § 1158(a)(1) is not
necessary to ensure that one of its words -- "any" -- means what
it says. Even on Garcia's favored reading, the word "any" in
§ 1158(a)(1) would not mean literally "any." Section 1158(a)(2)
itself makes clear that certain types of aliens are not eligible
to apply for asylum, even though § 1158(a)(1) states that "any"
alien may do so. See 8 U.S.C. § 1158(a)(2).9
Garcia does argue that § 1158(a)(1) should be read to
override all exceptions to its grant of the right to seek asylum
except for the ones that are expressly set forth in § 1158 itself.
But, even if Garcia's suggested reading is a possible one, we do
not see why it is compelled. As the Fifth Circuit observed in
considering and rejecting this very same argument, Congress has
"many options in revising statutory schemes," and "[a]dopting a
clear limitation in one section [i.e., § 1231(a)(5)] without
amending another section specifically dealing with the same
9 Garcia does not argue that the phrase "irrespective of such
alien's status" -- which, unlike the change from "an" to "any,"
dates back to section 208 of the Refugee Act, Cardoza-Fonseca, 480
U.S. at 427, and thus pre-dates IIRIRA -- in and of itself trumps
§ 1231(a)(5).
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subject [i.e., § 1158] is one such option." Ramirez-Mejia v.
Lynch, 794 F.3d 485, 490 (5th Cir. 2015), reh'g en banc denied,
813 F.3d 240 (5th Cir. 2016); see also Perez-Guzman v. Lynch, 835
F.3d 1066, 1076 (9th Cir. 2016), reh'g and reh'g en banc denied
(No. 13-70579, Apr. 26, 2017) ("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." (quoting Ramirez-
Mejia, 794 F.3d at 490)).
Moreover, reading § 1231(a)(5) to set forth an
additional "statutory limit," Ramirez-Mejia, 794 F.3d at 490, does
not render superfluous § 1158(a)(2), which conditions asylum
eligibility on compliance with certain requirements, see 8 U.S.C.
§ 1158(a)(2). In addition, the limits on asylum eligibility that
§ 1158(a)(2) expressly sets forth do not render § 1231(a)(5)
redundant if it, too, limits an alien's right to seek asylum.
Those express limits in § 1158(a)(2) do not concern the eligibility
to seek relief of aliens subject to reinstated removal orders,
while § 1231(a)(5) does.
Shifting course, Garcia contends that § 1158(a)(1) must
be read unambiguously to trump § 1231(a)(5), because the former
provision is the more specific provision of the two. But, as the
Ninth Circuit has noted, the "difficulty" is that both § 1158(a)(1)
and § 1231(a)(5) are "specific in certain respects and general in
- 21 -
others." Perez-Guzman, 835 F.3d at 1075. It is thus just as
possible, as a matter of text alone, to say that § 1231(a)(5)
imposes a specific check on § 1158(a)(1)'s general grant of
eligibility to apply for asylum as it is to say that § 1158(a)(1)
carves out a specific exception to the general bar to relief that
applies to aliens subject to reinstated removal orders. See id.
at 1075-76 (noting that § 1158(a)(1) is "more specific in that it
speaks narrowly to the rules governing asylum applications," while
§ 1231(a)(5) "is more specific in that it speaks directly to the
particular subset of individuals . . . who are subject to
reinstated removal orders").
Garcia's final textual argument relies on
§ 1158(a)(2)(D). That provision permits individuals who have been
previously denied asylum to file a second asylum application if
they can demonstrate "either the existence of changed
circumstances which materially affect . . . eligibility for asylum
or extraordinary circumstances relating to the delay in filing an
application." 8 U.S.C. § 1158(a)(2)(D). Garcia argues that
reading § 1231(a)(5) to bar aliens subject to reinstated removal
orders from applying for asylum would nullify § 1158(a)(2)(D).
But Garcia is mistaken on this point. Many aliens who
are not subject to reinstated orders of removal may benefit from
§ 1158(a)(2)(D). As a result, § 1231(a)(5), insofar as it limits
§ 1158(a)(2)(D), does not thereby render that provision a nullity.
- 22 -
See Perez-Guzman, 835 F.3d at 1082 (noting that it is not
"necessarily" the case that "any individual to whom § 1158(a)(2)(D)
applies will . . . be subject to a reinstated removal order").
In light of this complex statutory scheme, we cannot say
that § 1158(a)(1) unambiguously grants Garcia the right to seek
asylum, and we reject his contention that he wins at Chevron's
first step.
B.
Because the relevant statutory provisions do not clearly
compel Garcia's reading, we ordinarily would move on from Chevron's
first step to see whether Garcia could win at step two of the
Chevron analysis. The government argues, however, that we may not
do so because the relevant provisions in IIRIRA, properly read,
clearly bar aliens subject to reinstated orders of removal from
seeking asylum. The government thus argues not only that Garcia
loses at step one of Chevron but also that the government prevails
at that same step.
In so arguing, the government contends that "asylum" is
plainly a form of "relief" to which § 1231(a)(5)'s bar applies.
The government further contends there is no conflict between
§§ 1231(a)(5) and 1158(a)(1), because the former is more specific
than the latter and thus the former must take precedence. And,
finally, the government argues that its reading of "relief" to
encompass asylum comports with its conclusion that § 1231(a)(5)
- 23 -
does not bar aliens subject to reinstated orders of removal from
having their removal withheld pursuant to § 1231(b)(3)(A). And
that is because, the government contends, withholding of removal
differs from asylum because withholding of removal provides
"protection" rather than "relief." Accordingly, the government
contends that the statutes clearly compel the interpretation
reflected in the regulations, in which aliens subject to reinstated
orders of removal may not apply for asylum but may be entitled to
withholding of removal.
A number of circuits have agreed with the government.
They have held that § 1231(a)(5) does clearly bar aliens subject
to reinstated orders of removal from seeking asylum,
notwithstanding § 1158(a)(1). See Jimenez-Morales v. U.S. Att'y
Gen., 821 F.3d 1307, 1310 (11th Cir. 2016); Ramirez-Mejia, 794
F.3d at 489-90. But, there is at the least a surface tension
between the two provisions -- with § 1231(a)(5) seemingly barring
aliens subject to reinstated orders of removal from seeking asylum
and § 1158(a)(1) seemingly conferring upon any alien (save for
those expressly mentioned in that provision) the right to seek
asylum. And, as the Ninth Circuit has noted, insofar as these
provisions conflict with one another, it is by no means clear which
is the more specific of the two. See Perez-Guzman, 835 F.3d at
1075-76.
- 24 -
Thus, rather than deciding the case for the government
at step one of Chevron -- an issue on which we take no view -- we
proceed to Chevron's second step.10 At step two, we must accept
the agency's regulatory choice as to how to resolve an ambiguity
in a statute that the agency administers -- such as the putative
ambiguity presented by the tension we have identified -- if the
choice it makes is a reasonable one. See Nat'l Ass'n of Home
Builders v. Defs. of Wildlife, 551 U.S. 644, 661, 666-67 (2007)
(applying Chevron deference to "mediate a clash of seemingly
categorical -- and, at first glance, irreconcilable -- legislative
commands"). And we conclude that the agency's choice in this case
is one that we must accept, because the agency's regulations
reasonably balance the various statutory provisions by
"establish[ing] a new screening process to rapidly identify and
assess both claims for withholding of removal under [§ 1231(b)(3)]
and for protection under the [CAT] . . . without unduly disrupting
10 Garcia contends that, in this case, the agency cannot
benefit from deference at Chevron's second step because the agency
did not interpret the statutory scheme, but instead "believe[d]
that [its] interpretation is compelled by Congress." Garcia offers
no support for this proposition, and we find none in the agency's
own statements. See Perez-Guzman, 835 F.3d at 1079 n.8 ("The
administrative history does not . . . 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.").
- 25 -
the streamlined removal processes applicable to" aliens subject to
reinstated removal orders. Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. at 8479.
In reaching this conclusion, we recognize, as Garcia
correctly points out, that courts, the BIA, and DHS have at times
used the word "relief" -- which is the key word in
§ 1231(a)(5) -- to refer to both asylum and withholding of
removal.11 We thus understand the basis for Garcia's contention
that the agency's regulatory choice is arbitrary because it permits
aliens to obtain one type of "relief" under chapter 12 --
withholding of removal -- but not another -- asylum -- even though
the relevant statutory provision, § 1231(a)(5), bars aliens
subject to reinstated orders of removal from seeking the "relief"
chapter 12 affords. Garcia therefore argues that the only coherent
interpretation is one in which the agency affords withholding of
removal the same treatment as asylum. And since the agency permits
aliens subject to reinstated orders of removal to be eligible for
11
See, e.g., Aguirre-Aguirre, 526 U.S. at 419 ("Under the
immigration laws, withholding is distinct from asylum, although
the two forms of relief serve similar purposes."); Hinds v. Lynch,
790 F.3d 259, 261 (1st Cir. 2015) (commenting that the petitioner
sought no "asylum, withholding, or other relief from the
Immigration Judge"); López-Castro v. Holder, 577 F.3d 49, 52 (1st
Cir. 2009) ("This brings us to the particular relief sought in the
instant case: withholding of removal."); Matter of L-A-C-, 26
I. & N. Dec. 516, 519 (BIA 2015) ("[A]n applicant who seeks asylum
or withholding of removal has the burden of demonstrating
eligibility for such relief . . . .").
- 26 -
the former, Garcia contends that such aliens must be permitted to
apply for latter, too.
The problem with Garcia's argument is that the relevant
question at Chevron's second step is not whether it is possible to
characterize both asylum and withholding of removal as forms of
"relief," such that each then would be subject to § 1231(a)(5)'s
statutory bar or neither would be. The relevant question instead
is whether it is unreasonable to distinguish between asylum and
withholding of removal for purposes of applying that bar. And, in
our view, it is not. See Perez-Guzman, 835 F.3d at 1081 (holding
that "it is not unreasonable to conclude Congress intended to bar
. . . persons in reinstated removal proceedings [from applying for
asylum] while preserving relief [that is, withholding of removal]
for individuals able to meet the higher standards for withholding
of removal and CAT relief").
For one thing, the distinction that the government
posits in defending the regulations, such that asylum is a form of
"relief" that § 1231(a)(5) bars while withholding of removal is a
form of "protection" that § 1231(a)(5) does not by its terms reach,
reasonably tracks the distinct ways in which the Supreme Court has
described asylum and withholding of removal in construing the
United States' obligations under the Refugee Protocol. As we noted
at the outset, the Court has explained that, under the Refugee
Protocol, "those who can show a clear probability of persecution
- 27 -
are entitled to mandatory suspension of deportation . . . while
those who can only show a well-founded fear of persecution are not
entitled to anything, but are eligible for the discretionary relief
of asylum." Cardoza-Fonseca, 480 U.S. at 444 (emphases in
original). Thus, withholding of removal has long been understood
to be a mandatory protection that must be given to certain
qualifying aliens, while asylum has never been so understood.
The text of the relevant provisions of IIRIRA provides
further support for distinguishing between asylum and withholding
of removal in construing the scope of the bar that § 1231(a)(5)
imposes. For example, § 1231(b)(3)(A), unlike § 1158(a)(1), does
not by its terms expressly purport to permit an alien to do what
§ 1231(a)(5) appears expressly to forbid: "apply for . . . relief"
under chapter 12. Rather, § 1231(b)(3)(A) is styled as a
limitation on the Attorney General's removal authority. That
provision, unlike § 1158, thus appears simply to guarantee that an
alien facing persecution or torture will receive protection from
being returned to the alien's home country.12
12
In this respect, moreover, § 1231(b)(3)(A) differs
significantly from each of the grants of relief other than asylum
that Congress provided for in chapter 12. While Section
1231(b)(3)(A) prohibits the Attorney General from removing an
alien if that alien satisfies the statutory criteria, as we noted
above, §§ 1229b, 1229c, and 1255 permit the Attorney General to
undertake certain actions as a matter of discretion.
- 28 -
The agency's choice to treat asylum, but not withholding
of removal, as subject to the bar to applying for "relief" set
forth in § 1231(a)(5) also comports with the relevant legislative
history, even if it is not compelled by it. By reading "relief"
to encompass asylum, the agency's regulations give effect to
Congress's clear intention, in enacting § 1231(a)(5), to
"strengthen the reinstatement provision and to make it operate
more efficiently." Lattab v. Ashcroft, 384 F.3d 8, 19 (1st Cir.
2004). IIRIRA did so by "enlarg[ing] the class of illegal
reentrants whose orders may be reinstated and limit[ing] the
possible relief from a removal order available to them."
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33 (2006). But, the
legislative history does not show that Congress intended for
§ 1231(a)(5) to be an all-encompassing bar on the ability of aliens
subject to reinstated removal orders to remain in the United
States. See S. Rep. 104-249, at 7 (1996) (emphasizing that,
although "[a]liens who violate U.S. immigration law should be
removed from this country as soon as possible," that broad aim was
subject to "[e]xceptions . . . specified in the statute and
approved by the Attorney General"); H.R. Rep. 104-469, pt. 1, at
107-08 (1996) (noting that although "[r]emoval of aliens who enter
the United States illegally . . . is an all-too-rare event," and
therefore that "[r]elief from deportation will be more strictly
limited," aliens subject to the new "streamlined appeal and removal
- 29 -
process" now laid out in § 1231(a)(5) could nevertheless
"establish . . . that they are entitled to be admitted or to remain
in the United States"). Thus, we cannot say that the agency acted
unreasonably in choosing to ensure that the same aliens who could
not seek asylum still would be protected through withholding of
removal from suffering persecution or torture in their home
country, in accord with § 1231(b)(3)(A)'s clear directive to the
Attorney General to afford that vital and long-understood-to-be
mandatory protection.
III.
Garcia makes two additional arguments as to why he should
win, each of which relies on a longstanding canon of construction.
But, in our view, neither argument is persuasive.
First, Garcia argues that the rule of lenity that has
been applied in the immigration context requires us to resolve any
statutory ambiguity in his favor, notwithstanding that the
agency's choice might otherwise be considered to be a reasonable
one. It is not at all clear, however, that the rule of lenity,
which "favors construction of immigration laws in the light most
favorable to the alien" only insofar as that alien risks the
"drastic consequences of deportation," Lumataw v. Holder, 582 F.3d
78, 90 (1st Cir. 2009), bears on the precise interpretive question
that we face. After all, that question concerns the type of
"relief" that an alien whose removal has been withheld may obtain.
- 30 -
See also Cardoza-Fonseca, 480 U.S. at 449 (identifying a
"longstanding principle of construing any lingering ambiguities in
deportation statutes in favor of the alien"); INS v. St. Cyr, 533
U.S. 289, 320 (2001) (same) (quoting Cardoza-Fonseca, 480 U.S. at
421); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (applying the
rule of lenity "because deportation is a drastic measure and at
times the equivalent of banishment o[r] exile").
But, even if the rule of lenity might be relevant to
this case, we have stated that it "cannot apply to contravene the
BIA's reasonable interpretation" of an immigration statute where
the agency makes use of "ordinary principles of statutory
interpretation." Soto-Hernandez v. Holder, 729 F.3d 1, 6 (1st
Cir. 2013). And Garcia does not explain why, notwithstanding our
ruling in Soto-Hernandez and the seeming reasonableness of the
agency's choice under traditional tools of statutory construction,
the rule of lenity should control here.
Second, Garcia argues that, for over two hundred years,
it has been a canon of statutory construction -- known as the
Charming Betsy canon -- that a statute "ought never to be construed
to violate the law of nations if any other possible construction
remains." Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch)
64, 118 (1804). Yet, Garcia contends, the agency's interpretation
of the statutory scheme -- by denying aliens subject to reinstated
orders of removal the right to seek asylum -- would violate certain
- 31 -
of the United States' obligations under the Refugee Convention, to
which the United States acceded via the Refugee Protocol.
In particular, Garcia contends that the agency's reading
conflicts with Article 34 and Article 28 of the Refugee Convention.
Accordingly, Garcia argues that, insofar as there is an ambiguity
as to whether § 1158(a)(1) does carve out an exception to
§ 1231(a)(5), that ambiguity must be resolved in a manner that
avoids the conflicts with the Refugee Protocol that he alleges
would result if § 1158(a)(1) were not construed to create such an
exception.
In response, the government contends only that the
Refugee Protocol is not self-executing and thus that the Charming
Betsy canon does not apply. But we do not find that argument
persuasive. Garcia does not seek to enforce rights arising under
the Refugee Protocol and, by extension, the Refugee Convention.
Rather, he contends that, under the Charming Betsy canon, the
existence of these rights must be used as a guide to construing
the statutory provisions at issue so as to give effect to
Congress's intent to honor the United States' obligations under
international law. As a result, we do not see why the non-self-
executing status of the Refugee Protocol bears on the Charming
Betsy canon's potential application. Cf. Stevic, 467 U.S. at 425-
26 (looking to the Refugee Protocol to interpret the statutory
definition of the term "refugee" and noting that Congress "intended
- 32 -
that the definition would be construed consistently with the
Protocol"); Cardoza-Fonseca, 480 U.S. at 432-33 (same).
Nevertheless, Garcia fails to show that the regulations
create the kind of conflict with international law that the canon
instructs us to avoid if possible. Accordingly, we do not see how
the Charming Betsy canon helps him.
We start with Garcia's reliance on the conflict that he
contends would arise in consequence of Article 34, which, as we
have seen, provides that "[t]he Contracting States shall as far as
possible facilitate the assimilation and naturalization of
refugees." 19 U.S.T. at 6276 (emphasis added). Garcia makes no
argument, however, to support his contention that this "precatory"
language, Cardoza-Fonseca, 480 U.S. at 441, precludes a
contracting State from imposing a limitation on the eligibility of
an alien to seek asylum such as the limited one that the agency
has concluded § 1231(a)(5) imposes. Thus, Garcia fails to show
how Article 34 requires that we apply the Charming Betsy canon to
read the relevant provisions to exclude "asylum" from
§ 1231(a)(5)'s bar.
We now turn to Article 28, which provides that "[t]he
Contracting States shall issue to refugees lawfully staying in
their territory travel documents for the purpose of travel outside
their territory, unless compelling reasons of national security or
public order otherwise require." 19 U.S.T. at 6274 (emphasis
- 33 -
added). Garcia points out that aliens granted asylum may obtain
a travel document permitting them to travel internationally. By
contrast, aliens granted withholding of removal may not. Garcia
thus contends that, so long as § 1231(a)(5) is read to bar aliens
subject to reinstated orders of removal from seeking asylum, a
conflict with the Refugee Protocol arises. And, accordingly, he
contends that the Charming Betsy canon must be deployed to avoid
that conflict.
But, even though there is no dispute in this case that
Garcia qualifies as a "refugee" under 8 U.S.C. § 1101(a)(42)(A),
and correspondingly, under the Refugee Convention, see Cardoza-
Fonseca, 480 U.S. at 436-37, the fact is that Article 28 recognizes
that exceptions may be made from its requirements for "compelling
reasons of national security or public order." The governmental
interest advanced by the government's reading of § 1231(a)(5) --
deterring repeated unlawful entry into this country -- would appear
to constitute such a "compelling reason[] of . . . public order."
And, Garcia makes no argument to the contrary. Thus, we have no
basis for concluding that Article 28 necessitates the use of the
Charming Betsy canon.13
13The dissent relies on a number of provisions of the Refugee
Convention that Garcia never mentions. As for the two provisions
of the Convention that Garcia does address, the dissent does not
address the fact that Garcia makes no developed argument regarding
the exceptions they contain. Thus, the dissent does not address
the fact that Garcia offers no argument as to why the government's
- 34 -
IV.
For the foregoing reasons, the petitions are denied.
-Dissenting Opinion Follows-
evident interest in deterring unlawful entry must be understood to
conflict with Article 28, notwithstanding its "public order"
exception, or Article 34, notwithstanding its "as far as possible"
limitation. Moreover, in following our usual rules of waiver and,
accordingly, holding Garcia to the arguments that he actually does
develop, see Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010)
("[A]ppellate arguments advanced in a perfunctory manner,
unaccompanied by citations to relevant authority, are deemed
waived."), we do not impermissibly relieve the government of any
burden of explanation that the Charming Betsy canon may impose.
We simply ensure that we do not decide the case based on arguments
about the meaning of international law that were never subjected
to adversary testing.
- 35 -
STAHL, Circuit Judge, dissenting. In 2007, Victor
Garcia Garcia, a member of Guatemala's indigenous Maya community,
was scooped up in a large raid on a factory in New Bedford,
Massachusetts, whisked away to a border detention center in Texas
several days later, and, following a group hearing before an
Immigration Judge, ordered removed from the United States. During
these proceedings, Garcia did not have access to an attorney, nor
was an interpreter made available to him (an interpreter would
have certainly come in handy because the group hearing was
conducted in Spanish, a language that Garcia does not understand).
Returned to the same life of persecution in Guatemala that had led
him to seek refuge here in the first place, Garcia reentered the
United States and sought asylum.
Today, the majority holds that Garcia cannot apply for
asylum, despite having made the higher threshold showing of likely
harm that is required for an alien to acquire a temporary grant of
withholding of removal. This is so, the majority postulates,
because the Attorney General has ordained it as such through his
own preferred statutory interpretation under Chevron, construing
the reinstatement statute of the INA, 8 U.S.C. § 1231(a)(5), which
states that an alien subject to a reinstated order of removal "is
not eligible and may not apply for any relief," as trumping the
broad grant of asylum in 8 U.S.C. § 1158(a)(1), which provides
that "[a]ny alien who is physically present in the United States
- 36 -
or who arrives in the United States . . . irrespective of such
alien's status, may apply for asylum in accordance with this
section." Because administrative law, like baseball, has its own
default rule in cases like this -- tie goes to the agency -- in my
view the majority mechanically applies that default rule, ignoring
the fact that Garcia was denied due process in his initial removal
proceedings and failing to address the degree to which the agency's
interpretation violates the spirit, if not the letter, of various
U.S. treaty obligations.
Because the majority's interpretation would put the
United States in violation of international law, and countenance
the flagrant due process violations that occurred below, I would
find this interpretation of the relevant ambiguous provisions of
the INA unreasonable under the Charming Betsy doctrine, which
counsels that "an Act of Congress ought never to be construed to
violate the law of nations if any other possible construction
remains." Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch)
64, 118 (1804). Since it is beyond doubt that courts play a
crucial role in ensuring that the United States complies with its
treaty obligations, barring some clear indicia of Congressional
intent to violate a treaty via statute, and because the majority's
approach contravenes our obligations under international law and
the due process protections that litigants like Garcia should
rightly expect from our court system, I respectfully dissent.
- 37 -
I. Facts & Background
Because the majority glosses over (or ignores
completely) significant portions of the factual record, including
facts that bear directly on Garcia’s Charming Betsy argument, I
set forth below the salient facts before explaining why I believe
the legal result that the majority reaches is incorrect.
A. Garcia’s Background in Guatemala
Garcia is a member of Guatemala's indigenous Mayan
community, and grew up speaking an indigenous language, K'iche.
The Maya have often suffered at the hands of the ruling elite,
made up primarily of the mixed-race Ladino community. During the
Guatemalan Civil War, the national army and local Ladino citizen-
patrols, paramilitary organizations which operated with impunity,
conducted a systematic military campaign against the Maya. The
Historical Clarification Commission, established by the 1996 Peace
Accords, found that racial and ethnic animus constituted the reason
for these attacks and atrocities, and that the Guatemalan State
had "committed acts of genocide against groups of Mayan people" in
four regions, including Garcia's home region of Zacualpa, Quiche.
See Historical Clarification Report, Conclusions ¶¶ 110, 122.
Against that historical backdrop, Garcia put forth the
following factual allegations. As a child, Garcia and his family
were frequently forced to flee into the mountains when the army
conducted sweeps of his village -- sweeps that often resulted in
- 38 -
summary executions and beatings for those unable to escape. Garcia
resisted the Ladinos' efforts to draft him into their patrols, and
endured at least one beating at the hands of the militia, who
insulted him with racial epithets.
Far from being simply caught up in the widespread
violence and unrest plaguing the country at the time, the record
indicates that Garcia's family was the subject of particular ill-
treatment because they were leaders in the indigenous community
and in the local Catholic Church, and because following the
conclusion of the Civil War, they began a long campaign to seek
justice for Garcia's father and other indigenous civilians that
were disappeared or were executed during the war. Ladino armed
groups retaliated against Garcia, on one occasion beating him and
attacking him with a knife. After this incident, Garcia was unable
to walk for 15 days.
As the threats against him worsened, Garcia, fearing for
his life, fled Guatemala in early 2004, hoping to join one of his
brothers who was then living in New Bedford. There, Garcia lived
in an underground community of other Mayans who had fled Guatemala,
joined a prayer group at a local Catholic church, and became active
in a local indigenous organization. He never applied for asylum
in the United States during that period of time, and counsel for
Garcia suggests that this was because he remained traumatized from
- 39 -
the events in Guatemala and spoke only minimal Spanish and no
English.14
B. Initial Removal Proceedings
Immigration authorities detained Garcia in March 2007
during a raid on the factory in New Bedford, Massachusetts, at
which Garcia had been clandestinely employed. After two days at
a temporary holding facility, and without the opportunity to
consult with an attorney, Garcia was transferred to a detention
facility in southern Texas. On March 21, 2007, in a group hearing
before a Texas Immigration Court with proceedings conducted in
Spanish, Garcia accepted a removal order entered against him and
did not reserve his right to appeal. Although the record is less
than clear on this point, it appears that Garcia neither had access
14 The record is replete with evidence that Garcia could not
comprehend legal proceedings in Spanish. On his application for
asylum in 2015, on the section of the form which asked what
languages the applicant speaks, Garcia wrote "Spanish (not
fluently)." At his hearing before an asylum officer in May 2015,
a proceeding designed to determine whether he had a reasonable
fear of being removed to Guatemala, officials instructed Garcia to
give his answers in K'iche and provided him with an interpreter.
The government also provided Garcia with a K'iche interpreter
during the proceedings before the Boston Immigration Judge for
withholding of removal. One wonders what the Government learned
between 2007 and 2015 which led it to conclude, in the latter
instance, that Garcia required a K'iche interpreter so as to have
the benefit of due process.
- 40 -
to an attorney during this proceeding, nor was there a K’iche
interpreter available.
However, shortly after this hearing in 2007, a group of
attorneys traveled to Texas with the assistance of a K'iche-
speaking interpreter and met with Garcia and other detainees.
Following this meeting, the attorneys, on Garcia's behalf, sought
to reopen the appeal, arguing that his waiver of his right to apply
for asylum and his right of appeal were coercive because he was
denied his due process rights during the course of the initial
proceedings, including the right to an attorney. In an opinion
dated August 10, 2007, the BIA rejected Garcia's argument, finding
that "[t]he Immigration Judge explained to the respondent, along
with others at the group hearing, his rights in Spanish, including
the right to appeal any adverse decision. The Immigration Judge
also explained that the respondent had a right to counsel at that
hearing." Garcia filed a motion to reconsider the BIA's decision,
which was denied. At no point during these various appeals did
the BIA address the fact that Garcia did not speak Spanish. Garcia
was then removed to Guatemala.
C. The Majority’s Approach
The majority opinion alludes to these procedural defects
in the underlying removal proceedings, but gives them short shrift:
Three years later, in 2007, immigration
authorities in the United States apprehended
Garcia, detained him, and then ordered him
- 41 -
removed from this country. From all that the
record reveals, it appears that Garcia would have
been successful in obtaining asylum had he sought
it at that time. And, it appears, too, he may
have been entitled to withholding of removal.
But, he did not request either asylum or
withholding of removal, apparently because of
the language barriers he faced and because he
was uncounseled. See ante at 12.
The majority in this passage concedes that Garcia would
have likely been "successful in obtaining asylum" at the time of
his initial removal proceedings, but did not have an opportunity
to do so because he did not have access to a lawyer and because he
did not speak the language in which the proceedings were conducted.
We can surmise, as his counsel argued before the Immigration Judge
in the 2015 proceedings, that Garcia had no idea what was going on
at this en masse hearing at the border detention center.15 By the
time the attorneys arrived in Texas to meet with Garcia and other
similarly situated indigenous persons, it was too late, because he
had already been ordered removed and waived his right to appeal.
15 Garcia himself confirmed as much at his 2015 reasonable
fear hearing before an asylum officer (this time with the benefit
of a K'iche interpreter):
Q: Have you ever been denied anything or any rights because
you are Mayan?
A: Yes a lot of things have been denied for me since I don't
speak Spanish and I didn't go to school.
Q: What have you been denied since you don't speak Spanish?
A: I don't understand when people talk to me so I just remain
quiet because I don't understand.
- 42 -
Garcia would later contend that he never had a meaningful
opportunity to apply for asylum during these proceedings, but to
no avail. The BIA ruling in 2015 disposed of this argument in a
single sentence, concluding that "[t]hough the applicant asserts
he was not accorded due process in the course of his prior removal
proceedings, the Immigration Judge and this Board do not have
authority to review those proceedings." The majority opinion of
this panel, despite, in my view, having such authority to review
the underlying removal order -- a topic to which I will turn
shortly -- devotes only the aforementioned four sentences to the
obvious due process defects in Garcia's underlying removal order.
D. Return to Guatemala and Subsequent Reentry
Things did not improve for Garcia after he returned to
Guatemala. Ladino gangs frequently harassed Garcia, on at least
one occasion shooting at him while he rode his bicycle, forcing
him to flee into the woods. Once again, his efforts to organize
the indigenous community through leadership in his local church
were not met with enthusiasm on the part of the Ladino gang
leaders, many of whom directly retaliated against Garcia's family.
The frequency of harassment by the militia groups increased until,
on February 10, 2015, Garcia and his son decided to flee Guatemala
and join family members who had previously been granted asylum and
resided in New Bedford. Garcia's wife and seven children remain
- 43 -
in Guatemala, and have informed Garcia that it is not safe to
return.
E. Administrative Proceedings Below
DHS apprehended Garcia at the border, and subsequently
allowed him to travel to Massachusetts. After receiving notice
that his previous removal order would be reinstated, Garcia was
given a reasonable fear interview by an asylum officer on May 19,
2015, which was conducted with the assistance of a K'iche-speaking
interpreter. The asylum officer found that Garcia had a reasonable
fear of persecution if he were returned to Guatemala, and allowed
him to apply for withholding of removal. At his hearing before
the Boston Immigration Court, again with the assistance of an
interpreter, Garcia argued that in addition to applying for
withholding of removal, he should be permitted to apply for asylum,
and that the automatic reinstatement of his prior removal order
would violate U.S. obligations under the 1967 Refugee Protocol.16
The IJ found Garcia to be a credible witness and ruled
that he had established past persecution as well as a likelihood
of future persecution. He therefore granted Garcia's application
16Protocol Relating to the Status of Refugees, 19 U.S.T. 6223
(Nov. 6, 1968). Because accession to the Protocol required that
the United States comply with all substantive aspects of the 1951
United Nations Convention Relating to the Status of Refugees, 189
U.N.T.S. 150 (July 28, 1951), I will refer to the "Refugee
Convention" or the "Convention" when describing U.S. international
law obligations under this treaty regime.
- 44 -
for withholding of removal. However, the IJ did not consider
Garcia's asylum claim, concluding (as the majority does) that he
was ineligible to apply for asylum under the INA because of the
previous removal order. Additionally, the IJ rejected (with no
accompanying analysis) Garcia's argument that a reading of the
statutory language to bar asylum claims would be in tension with
the Refugee Protocol. In that same opinion, the IJ rejected
Garcia's argument that he had not previously been afforded a
meaningful opportunity to apply for asylum, citing the 2007 BIA
decision which had found that the Garcia had his "rights [explained
in] Spanish."
Garcia appealed to the BIA. In a two-page order, the
BIA denied Garcia's appeal, and concluded that "[n]either
section 241(a)(5) of the Act nor its implementing regulations
authorize the applicant to be considered for asylum." Although
Garcia renewed his argument to the BIA that he had not previously
had the opportunity to apply for asylum because of the procedural
defects of his 2007 removal proceedings, the BIA concluded that it
lacked "authority to review those proceedings."
F. Garcia's Current Status
Thus began Garcia's sojourn through the legal limbo that
the majority, today, suggests is the very position where Congress
would want him. Having been granted withholding of removal,
Garcia's only security is that he cannot be sent back to Guatemala.
- 45 -
His actual position, however, is more precarious. A grant of
withholding of removal does not prevent his transfer to a third
country. See 8 C.F.R. § 1208.16(f). He therefore lives under a
cloud of possible relocation, and should the government decide to
effect such a transfer, he would have no say in the matter.
Additionally, while aliens granted withholding of removal are
eligible to apply for work permits, these employment authorization
documents are granted at the discretion of USCIS and are granted
in increments. See 8 C.F.R. § 274a.12(a)(10). Such aliens must
reapply for this document before it expires, often encountering
long processing delays, and cannot work legally unless and until
the authorization document is renewed.17 Id. Furthermore,
individuals in withholding of removal status are not eligible for
travel documents necessary for reentry into the United States after
17By contrast, for aliens granted asylum, the regulations
stipulate that "[a]n expiration date on the employment
authorization document issued by USCIS reflects only that the
document must be renewed, and not that the bearer's work
authorization has expired." See 8 C.F.R. § 274a.12(a)(5).
Additionally, asylees are exempt from the classes of aliens who
"must apply" to USCIS for a work permit, id. § 274a.12(a), with
the regulations obliquely noting that asylees may be employed by
virtue of "an employment authorization document, issued by USCIS
to the alien," with no requirement that they apply for this
document, id. § 274a.12(a)(5). While it is not clear whether the
issuance of the work permit to asylees is therefore obligatory on
the part of USCIS, at minimum it seems obvious that aliens in
withholding of removal encounter additional procedural hurdles in
order to work legally.
- 46 -
foreign travel, while aliens who have been granted asylum or
refugee status may obtain such documents.18
Adding insult to injury, withholding of removal carries
with it no options for bringing family members to the United
States, while an alien granted asylum can apply for derivative
asylum status for his spouse and minor children. See Burbiene v.
Holder, 568 F.3d 251, 256 n.5 (1st Cir. 2009) (noting that "there
can be no derivative beneficiaries of a grant of withholding of
removal"). Indeed, DHS regulations require that an alien who has
been denied asylum status, but granted withholding of removal,
must have his or her asylum application reconsidered. See 8 C.F.R.
§ 1208.16(e) ("In the event that an applicant is denied asylum
solely in the exercise of discretion, and the applicant is
subsequently granted withholding of deportation or removal under
this section, thereby effectively precluding admission of the
applicant's spouse or minor children following to join him or her,
the denial of asylum shall be reconsidered.")
18 See generally USCIS Form I-131, Application for Travel
Document Instructions 1 (rev. Dec. 13, 2016), available at
http://www.uscis.gov/files/form/i-131instr.pdf (noting that a
"Reentry Permit allows a lawful permanent resident or conditional
permanent resident to apply for admission to the United States
upon returning from abroad" and that "[a] Refugee Travel Document
is issued to an individual in valid refugee or asylee status, or
to a lawful permanent resident who obtained such status as a
refugee or asylee in the United States."). Because aliens granted
withholding of removal status technically still have a removal
order entered against them, they do not have either Refugee or
Asylee status and thus may not apply for the reentry permit.
- 47 -
Just consider that if Garcia had access to an attorney,
the benefit of legal proceedings in a language he understood, or
even just an interpreter, during his initial detention and removal,
he could have then applied for asylum and withholding of removal
concurrently. If the government had denied his application for
asylum, but later granted withholding of removal, the government
would be compelled to reconsider his asylum application by virtue
of the fact that withholding of removal alone "preclude[s]
admission of the applicant's spouse or minor children." Id. The
government apparently recognizes the absurdity of denying to the
alien the right to try to bring his family to the United States
because he has met the higher threshold required for withholding
of removal, as opposed to the lesser showing that is required for
the discretionary grant of asylum.19 Hence the requirement that
the government reopen the asylum claim in that situation.
Garcia is essentially overqualified for the relief that
he seeks: he falls into the "narrower class of aliens who are given
a statutory right not to be deported to the country where they are
in danger," but misses out on membership in the "broad class of
refugees who are eligible for a discretionary grant of asylum,"
all because he was initially removed from the country without due
19As the majority notes, the clear-probability test for
withholding of removal "is more demanding than the 'well-founded
fear' test" that applies in asylum cases. Ante at 8 (citing INS
v. Cardoza-Fonseca, 480 U.S. 421, 449-50 (1987)).
- 48 -
process. Cardoza-Fonseca, 480 U.S. at 424. Yet had he been
afforded a modicum of process and then had his asylum application
denied, the government would be obligated to reopen that asylum
application if he was subsequently granted withholding of removal.
Today we are told by the majority that the Attorney
General's interpretation of the INA, which produces the absurd and
counterintuitive result that I have just outlined, is reasonable
because it is a permissible construction of a statutory ambiguity.
This is so even though a separate provision of the INA provides
that "any alien who is physically present in the United States or
who arrives in the United States . . . irrespective of such alien's
status, may apply for asylum." 8 U.S.C. § 1158(a)(1) (emphasis
added). Even under Mark Twain's more pessimistic assessments of
Congressional sagacity,20 I cannot agree that the result the
majority reaches today is one that Congress would desire.
II. Due Process Considerations
Before proceeding to what I believe is the main flaw in
the majority's reasoning, the failure to adequately consider the
Charming Betsy question and the tension between the agency's
interpretation in this case and U.S. treaty commitments, I want to
briefly explain why a contrary holding is not necessarily
20See Mark Twain, Foster's Case, N.Y. Tribune, Mar. 10, 1873,
at 5 ("To my mind Judas was nothing but a low, mean, premature
Congressman.")
- 49 -
inconsistent with other circuits that have held in favor of the
reinstatement statute in similar cases, and why I believe that we
have jurisdiction to look behind the underlying removal order and
to examine whether Garcia's due process rights were violated.
A. Other Cases Interpreting This Statutory Interplay
While the majority is quite correct that other circuits
that have encountered this statutory tension have sided in favor
of the reinstatement bar, none of these cases, as far as I can
discern, involved petitioners whose initial removal proceedings
were infected with the procedural irregularities which occurred
here. Furthermore, some of these courts noted the due process
tensions when applying the reinstatement statute mechanically, but
found them inapplicable to the cases at hand.
For instance, in Herrera-Molina v. Holder, the Second
Circuit rejected the petitioner's argument that Section 241(a)(5)
"deprives him of due process," while noting that "Herrera-Molina
does not allege any impropriety" in the underlying removal
proceedings and "does not argue that those earlier proceedings
deprived him of due process." 597 F.3d 128, 139-40 (2d Cir. 2010).
Because the petitioner did not raise that argument, the court did
"not consider whether [it] would have jurisdiction to review legal
or constitutional challenges to the validity of that underlying
deportation order." Id. at 140 n.9.
- 50 -
In Perez-Guzman v. Lynch, the Ninth Circuit noted that
the petitioner had "testified before the IJ that the Border Patrol
agents never asked him whether he feared returning to Guatemala,"
but also concluded that "[r]ecords 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." 835 F.3d 1066, 1070-71 (9th Cir. 2016), reh'g and
reh'g en banc denied (No. 13-70579, Apr. 26, 2017). There is
nothing in Perez-Guzman that suggests the petitioner did not speak
the language in which the proceedings were conducted. By contrast,
Garcia has testified that he was never asked whether he feared
returning to Guatemala.21 Of course, he may have been asked in
Spanish, but I struggle to see how this is much better than not
being asked at all.
Furthermore, in that same case, the Ninth Circuit noted
that "[t]he Attorney General's interpretation of § 1231(a)(5) may
have dire humanitarian consequences for individuals in
21
Immigration Judge: When you were in front of the Immigration
Judge in 2007, why didn't you tell him of your fear of these Ladino
gangs?
Garcia (through an interpreter): I did not tell them anything
because they did not ask me any questions whether I was afraid.
That's why I didn't tell them anything.
Counsel for Garcia: Your honor, for the record, they didn't
understand what was going on. We went down to Texas. The Federal
Judge sent us down. We talked to everybody. They didn't understand
what was going on.
- 51 -
reinstatement who seek relief from removal . . . because they were
improperly denied an opportunity to seek asylum during their
earlier removal from the United States." Perez–Guzman, 835 F.3d
at 1081. The Ninth Circuit's rejoinder to this point, that "the
government has discretion to forgo reinstatement and instead place
an individual in ordinary removal proceedings," id., would seem to
be cold comfort to aliens who, like Garcia, are not so fortunate
as to be showered with the government's magnanimity.22
In short, none of our sister circuits, as far as I can
gather, have encountered a comparable set of facts to those
undergirding Garcia's appeal at the time that they answered this
same statutory riddle. Nor did any of them address the tension
between the agency's interpretation of the INA and international
law, an issue of first impression in our circuit.23 For these
reasons, I do not find these opinions persuasive.
22 The recent Fifth and Eleventh Circuit cases interpreting
this issue included cursory treatments of the underlying removal
proceedings, which makes it difficult to discern whether the
proceedings in those cases violated the basic due process
protections of the petitioners in a similar fashion to Garcia.
See Ramirez-Mejia v. Lynch, 794 F.3d 485, 487 (5th Cir. 2015)
("Ramirez-Mejia I")(noting only that the petitioner "was
apprehended while illegally entering the United States" and "was
subsequently removed from the country"); Jimenez-Morales v. U.S.
Atty. Gen., 821 F.3d 1307, 1307-08 (11th Cir. 2015) (explaining
that, "after having been removed to Colombia," petitioner again
tried to enter the United States without authorization).
23In a short denial for rehearing en banc, the Fifth Circuit
in Ramirez-Mejia noted in passing that "we find no treaty
obligation in conflict with our holding" because Article 34 of the
Refugee Convention is a "precatory" provision (citing Cardoza-
- 52 -
B. The Court's Jurisdiction to Examine Underlying
Removal Orders
The procedural defects in the 2007 removal proceedings
are, admittedly, not front and center in the petitioner's
presentation of his case.24 He focuses, like the majority does,
on the statutory interplay between the asylum and reinstatement of
removal provisions. However, Garcia did argue below, and renews
the point on appeal in his brief, that he "was never provided a
real opportunity to apply for asylum" when he was initially removed
Fonseca, 480 U.S. at 441) and Congress left intact the right to
apply for withholding of removal and protection under the
Convention Against Torture (CAT) in the IIRIRA. See Ramirez-Mejia
v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016) ("Ramirez-Mejia II").
However, the Court did not address other pertinent sections of the
Refugee Protocol, nor did it address whether the availability of
CAT protection and the possibility of withholding of removal are
sufficient to satisfy U.S. obligations under the Protocol.
24
I disagree with the majority's contention that because the
due process issue was "not set forth as a developed argument,"
these concerns have "no bearing on this appeal." Ante, at 16 n.6.
While Federal Rule of Appellate Procedure 28(a) generally requires
that parties develop arguments in some detail in their briefs or
risk having them be deemed waived, see Ahmed v. Holder, 611 F.3d
90, 98 (1st Cir. 2010), this principle is a "prudential construct
that requires the exercise of discretion," U.S. v. Miranda, 248
F.3d 434, 443 (5th Cir. 2001), and some courts have determined
that they "have discretion to consider issues not raised in the
briefs, 'particularly where substantial public interests are
involved.'" Hatley v. Lockhart, 990 F.2d 1070, 1073 (8th Cir. 1993)
(quoting Continental Ins. Cos. v. Ne. Pharm. & Chem. Co., Inc.,
842 F.2d 977, 984 (8th Cir.), cert. denied, 488 U.S. 821 (1988)).
Here, Garcia's brief raises the lack of due process afforded to
him in his initial removal proceedings, and even if his brief does
not develop these facts into an express argument for why his
preferred statutory construction is correct, I would consider that
the "substantial public interests," id. at 1073, at stake in this
dispute counsel against applying the usual waiver rule.
- 53 -
in 2007. Because these statements in his brief and the
descriptions of his initial confinement and removal are both
sufficiently detailed to put this court on notice and sufficiently
shocking that such notice should be heeded, I would conclude that
the issue is properly before us.25
To be sure, the removal statute itself provides that
"[t]he prior order of removal . . . is not subject to being reopened
or reviewed," 8 U.S.C. § 1231(a)(5), and some courts have
interpreted this as erecting a strict bar to judicial review of
such orders, see Ramirez-Mejia, 794 F.3d at 489 ("This court has
jurisdiction to review the lawfulness of a reinstatement order but
not the underlying removal order."); Garcia v. Mukasey, 531 F.3d
141, 150 (2d Cir. 2008) (concluding that "the reinstatement of
removal statute expressly prohibits us from giving petitioner a
second bite at the apple").
25While aliens in removal proceedings do not enjoy the
protections of the Sixth Amendment's right to counsel, the INA
itself provides this guarantee (along with other due process
protections). See 8 U.S.C. § 1229 (a)(1)(E) ("The alien may be
represented by counsel and the alien will be provided (i) a period
of time to secure counsel . . . and (ii) a current list of counsel"
provided by the Attorney General); see also Lattab v. Ashcroft,
384 F.3d 8, 18 (1st Cir. 2004) ("In general, section 240 entitles
aliens to be represented by counsel, to be heard by an immigration
judge, to adduce evidence, and to cross-examine adverse
witnesses."). Fifth Amendment due process protections also apply
in removal proceedings. See Demore v. Kim, 538 U.S. 510, 523,
(2003) ("It is well established that the Fifth Amendment entitles
aliens to due process of law in deportation proceedings." (quoting
Reno v. Flores, 507 U.S. 292, 306 (1993))).
- 54 -
However, as other courts have recognized, there is more
to this story. The Supreme Court has held that reading the IIRIRA
to "entirely preclude review of a pure question of law by any court
would give rise to substantial constitutional questions" under the
Suspension Clause.26 I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001).
In light of the "longstanding rule requiring a clear statement of
congressional intent to repeal habeas jurisdiction," the Supreme
Court interpreted three separate provisions of the IIRIRA and
concluded that they had not clearly repealed the general grant of
habeas jurisdiction to federal courts. St. Cyr, 533 U.S. at 298.
Other courts have recognized similar constitutional problems with
a literal reading of § 1231(a)(5) that precludes all judicial
review of the underlying removal action. See, e.g., Ramirez-
Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006) ("[I]f there
were no judicial review available to an alien in the initial
removal proceedings, then § 1231(a)(5)'s foreclosure of judicial
review of constitutional and legal claims regarding that order
after reinstatement arguably would implicate the Suspension Clause
concerns articulated in St. Cyr.").
26 See U.S. Const. art. 1, § 9, cl. 2 ("The Privilege of the
Writ of Habeas Corpus shall not be suspended, unless when in Cases
of Rebellion or Invasion the public Safety may require it.")
- 55 -
Additionally, while a separate provision of the INA
precludes judicial review over some cases, § 1252(a)(2)(D) exempts
constitutional issues from this restriction:
Nothing in subparagraph (B) or (C), or in any
other provision of this chapter (other than this
section) which limits or eliminates judicial
review, shall be construed as precluding review
of constitutional claims or questions of law
raised upon a petition for review filed with an
appropriate court of appeals in accordance with
this section." 8 U.S.C. § 1252(d); see also id.§ 1252 (b)(ii) (stating that no court shall have
jurisdiction over discretionary actions taken by
the Attorney General and Secretary of Homeland
Security "other than the granting of relief under
Section 1158(a)," which governs asylum).
In Debeato v. Att'y Gen. of U.S., the Third Circuit
concluded that "there is no principled reason for reading
§ 1252(a)(2)(D) as permitting jurisdiction to review a final
removal order, yet denying jurisdiction to review a reinstatement
of that very same order." 505 F.3d 231, 234-35 (3d Cir. 2007);
see also Ramirez-Molina, 436 F.3d at 513–14 ("Because § 1231(a)(5)
limits judicial review, § 1252(a)(2)(D) prevents its operation in
cases, such as this one, in which the validity of an underlying
order is questioned on constitutional or legal grounds.").
This court has previously suggested that the automatic
reinstatement of a prior removal order could present serious
constitutional problems. In Lattab, the petitioner had not made
the required showing of prejudice arising from his underlying
removal proceedings, and thus the court was without authority to
- 56 -
reach the question of the due process-related issues associated
with the summary reinstatement process. Nevertheless, with one of
my colleagues on this panel writing for the court, we noted:
Although this case does not provide a vehicle
for testing the merits of the constitutional
claim, we do not mean to imply that the claim
is insubstantial. . . . While judicial review
of reinstatement orders is available in the
courts of appeals, that review may not be
adequate when the alien has not been given a
meaningful opportunity to develop an
administrative record.
Lattab, 384 F.3d at 21 n.6 (internal citations omitted).
In my view, Garcia has satisfied the requirement of
showing that he was prejudiced by the due process deficiencies in
his underlying removal order. Therefore, I would find that just
as the reinstatement of removal statute's bar of "any relief" does
not literally mean "any relief,"27 § 1231(a)(5)'s command that the
prior order of removal "is not subject to being reopened or
reviewed" does not actually mean "no reopening" and "no review"
because such a reading, taken to its logical destination, would
violate both the Suspension Clause and 8 U.S.C. § 1252.
To conclude, I would hold that the court is permitted to
review the underlying removal order for serious due process defects
when properly called upon to do so. I would further hold that a
27As the majority notes, aliens with previous removal orders
can apply for cancellation of removal, departure as an alternative
to removal, and adjustment of status, all forms of "relief" under
the INA. See ante at 16 n.6.
- 57 -
mechanical and categorical application of the reinstatement of
removal statute (allowing it to trump the asylum statute, as the
agency suggests and as the majority holds today), would render
judicial vindication of such due process rights impossible. The
majority's ruling thus contravenes the court's duty in cases where
"a serious doubt of constitutionality is raised" to "first
ascertain whether a construction of the statute is fairly possible
by which [a constitutional] question may be avoided." Ashwander
v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J.,
concurring) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)).
III. The Reinstatement of Removal and International Law
The due process concerns alone might be sufficient to
justify a more nuanced and case-by-case inquiry into whether the
reinstatement statute should trump the right to apply for asylum
in a particular petitioner's case. However, these concerns,
highlighted so vividly in Garcia's case, also reinforce the most
jarring problem with the majority's conclusion that the
reinstatement provision wins outright: such a reading would cause
the United States to run afoul of international treaty commitments
in an ordinary case, and even more so in cases where the alien was
not afforded due process in the initial removal proceedings.
A. The Charming Betsy Canon
The interpretive principle that ambiguous federal
statutes are to be interpreted in conformity with international
- 58 -
law where feasible can be traced to a pair of Supreme Court cases,
both arising out of the quasi-war with France: Talbot v. Seeman,
5 U.S. (1 Cranch) 1 (1801), and Charming Betsy, 6 U.S. at 64. In
Talbot, Chief Justice Marshall's opinion for the Court observed
that "the laws of the United States ought not, if it be avoidable,
so to be construed as to infract the common principles and usages
of nations," and thus, by the Court's construction of the statute
in question, "the act of congress will never violate those
principles which we believe, and which it is our duty to believe,
the legislature of the United States will always hold sacred."
Talbot, 5 U.S. at 43-44. The Charming Betsy case followed three
years later, in which Chief Justice Marshall announced the more
familiar maxim that "an act of Congress ought never to be construed
to violate the law of nations if any other possible construction
remains." Charming Betsy, 6 U.S. (2 Cranch) at 118.
This interpretive principle is now firmly established in
U.S. law and has been employed by the Supreme Court and this court
on a regular basis when interpreting federal statutes. See, e.g.,
Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (noting that construing
federal statutes to avoid violating international law has "been a
maxim of statutory construction since the decision" in Charming
Betsy); United States v. Lachman, 387 F.3d 42, 55 (1st Cir. 2004)
("We recognize that statutory and regulatory language should be
construed in consonance with international obligations when
- 59 -
possible."); United States v. Hensel, 699 F.2d 18, 27 (1st Cir.
1983) (Breyer, J., for the court) (describing the Charming Betsy
principle as "well established"); see also Restatement (Third) of
Foreign Relations Law § 114 (Am. Law. Inst. 1987) ("Where fairly
possible, a United States statute is to be construed so as not to
conflict with international law or with an international agreement
of the United States.")28
It is entirely appropriate in cases of statutory
ambiguity29 to adopt a reading of the statute that does not conflict
with U.S. commitments under a non-self-executing treaty, precisely
because the canon is concerned with the international obligations
28As an initial matter, I agree with the majority that there
should be no objection to the application of the Charming Betsy
canon to this case. The government's cursory argument, that the
Refugee Protocol is not a self-executing treaty and thus it is
inappropriate to apply the Charming Betsy canon, is a clear
misfire. Even assuming arguendo that the relevant portions of the
Refugee Protocol are not self-executing, application of the
Charming Betsy canon would remain unaffected. The question of
whether a treaty is self-executing speaks to whether the
international agreement in question can be enforced as domestic
law in the courts of the United States without implementing
legislation, not whether the treaty is an international obligation
on the part of the country as a whole. In Medellín v. Texas, the
Supreme Court recognized that even treaty provisions that do not
constitute binding federal law enforceable in United States courts
may still "constitute[] an international law obligation on the
part of the United States." 552 U.S. 491, 504 (2008); accord
Restatement (Third) § 321 ("Every international agreement in force
is binding upon the parties to it and must be performed by them in
good faith.").
29Like other interpretive canons, "[t]he Charming Betsy canon
comes into play only where Congress's intent is ambiguous."
United States v. Yousef, 327 F.3d 56, 92 (2d Cir. 2003).
- 60 -
of the country, rather than the domestic enforceability of
international law. See, e.g., Ma v. Ashcroft, 257 F.3d 1095, 1114
(9th Cir. 2001) (applying the Charming Betsy canon to avoid a
violation of the International Covenant on Civil and Political
Rights, which had been ratified by the United States but declared
by the Senate to be non-self-executing). At least one circuit has
applied the Charming Betsy canon in the context of a possible
conflict between the INA and the Refugee Protocol. See Khan v.
Holder, 584 F.3d 773, 783 (9th Cir. 2009) ("Under Charming Betsy,
we should interpret the INA in such a way as to avoid any conflict
with the [Refugee] Protocol, if possible.")30
A treaty, ultimately, "depends for the enforcement of
its provisions on the interest and the honor of the governments
which are parties to it," Medellín, 552 U.S. at 505 (quoting Head
Money Cases, 112 U.S. 580, 598 (1884)), and there is no reason why
the judiciary, as a co-equal branch of government, should interpret
a statute in such a way that would violate a treaty, absent a clear
30Although one of our sister circuits has interpreted the
canon as only applying "where conformity with the law of nations
is relevant to considerations of international comity," see Serra
v. Lappin, 600 F.3d 1191, 1198 (9th Cir. 2010), I would note that
even if we were to apply this minority rule (which we have not
previously done), there are certainly significant "foreign policy
implications," Weinberger, 456 U.S. at 32, to whether (and to what
extent) the United States abides by its treaty commitments to
provide protection to individuals fleeing religious and political
persecution. One need only open a newspaper to see why this is
so.
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showing by Congress that it desires this result. Applying the
Charming Betsy doctrine is therefore consistent with the
judiciary's role to "say what the law is," Marbury v. Madison, 5
U.S. (1 Cranch) 137, 178 (1803), a role that extends to
international law. See The Paquete Habana, 175 U.S. 677, 700
(1900) ("International law is part of our law, and must be
ascertained and administered by the courts . . . of appropriate
jurisdiction.").
B. The Refugee Convention
The Refugee Convention "was enacted largely in response
to the experience of Jewish refugees in Europe during the period
of World War II," and the "tragic consequences of the world's
indifference at that time are well known." Sale v. Haitian Ctrs.
Council, Inc., 509 U.S. 155, 207 (1993) (Blackmun, J., dissenting).
Although the United States did not join the Convention, it acceded
to the 1967 Protocol, and in so doing, the United States "agree[d]
to comply with the substantive provisions of Articles 2 through
34" of the Refugee Convention. Congress soon followed with the
Refugee Act of 1980, which amended the INA specifically to "bring
United States refugee law into conformance with the 1967 Protocol."
Cardoza-Fonseca, 480 U.S. at 436. Central to State obligations
under the 1967 Protocol (and the 1951 Convention) is the
requirement that States provide "fair and efficient procedures for
the determination of refugee status." UNHCR Exec. Comm., General
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Conclusions on International Protection, No. 71 (XLIV), U.N. Doc.
A/48/12/Add.1 (Oct. 8, 1993).31
The majority correctly notes, ante at 34, that Garcia is
a refugee under both statutory and international law. The
Convention defines a "refugee" as one who, "owing to well-founded
fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself of the
protection of that country." 19 U.S.T. at 6261. The INA more or
less adopts this same definition, with exceptions not relevant
here.32 The Immigration Judge found that Garcia, who is clearly
"outside the country of his nationality," had a well-founded fear
of persecution on account of both his membership in a particular
social group and because of his religious activities, and there is
no way that one could read the voluminous record in this case and
31
Although not binding, the views of the Office of the United
Nations High Commissioner for Refugees (UNHCR) have been cited by
the Supreme Court for interpretive guidance given that office's
expertise and responsibilities for monitoring refugee issues.
See, e.g., Negusie v. Holder, 555 U.S. 511, 536-37 (2009)
(consulting the UNHCR's Handbook on Procedures and Criteria for
Determining Refugee Status, "to which the Court has looked for
guidance in the past"); Cardoza-Fonseca, 480 U.S. at 439 (seeking
guidance in interpreting the "well founded fear” test under the
Refugee Convention and Protocol from the position of UNHCR).
32 See 8 U.S.C. § 1101(a)(42)(A).
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not agree with that conclusion.33 None of the exceptions under
Article 1 of the Convention apply to Garcia.
As explained below, in light of that status, Garcia
qualifies for certain rights and protections under international
law, protections which the majority's holding today denies to him.
While the materials accompanying Garcia's petition rely primarily
on Article 28 (the right to have a travel document) and Article 34
(the requirement that states facilitate the naturalization of
refugees), for completeness' sake, I note aspects of this case and
aspects of the majority opinion that seem to be in tension with
other portions of the Convention as well.34
33In the spirit of this case, I suppose if one could not read
Spanish or English and did not have the opportunity to have the
record explained to them in their native tongue, they might not be
able to form an opinion one way or another on this conclusion.
34 To be clear, Garcia's actual Charming Betsy claim is that
"[t]he Agency's interpretation of INA § 241(a)(5) in a way which
deprives Mr. Garcia of the opportunity to have his asylum case
heard, violates its obligations under the Convention and Protocol"
and that the accompanying DHS regulations "are premised on an
interpretation which does not comport with U.S. obligations under
the Protocol and Convention and which is in violation of
international law." Articles 34 and 28 are cited as examples, but
I interpret his claim to be based on U.S. commitments under these
treaty regimes more generally, and he makes several arguments about
the relative paucity of benefits available under withholding of
removal that would otherwise be available for aliens granted
asylum, all of which collectively implicate a variety of provisions
under the Refugee Convention aside from Articles 28 and 34. Given
that the focus of the Charming Betsy canon is on the international
law obligations of the United States as a whole, rather than the
domestic enforceability of those rights, and given what I consider
to be a clear incongruity between U.S. treaty obligations and the
automatic reinstatement of removal process, I find these
additional provisions of the Refugee Convention to be of sufficient
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i. Article 17
Article 17 of the Convention requires that states "shall
accord to refugees lawfully staying in their territory the most
favourable treatment accorded to nationals of a foreign country in
the same circumstances, as regards the right to engage in wage-
earning employment." 19 U.S.T. at 6269. The travaux préparatoires
to the Convention notes that, as used in Article 17, "most
favourable treatment" is defined as "the best treatment which is
accorded to nationals of another country by treaty or usage." See
UN High Commissioner for Human Rights, The Refugee Convention,
1951: The Travaux Préparatoires Analyzed with a Commentary by Paul
Weis 94 (hereinafter "Weis, Travaux"). An early draft of Article
17, provided by the Secretariat, noted that "[b]ecause of their
limited resources and their status, wage-earning employment is the
only type of employment to which most refugees can aspire," and
the commentary to Article 17 concludes it is "one of the most
important of the Convention." Id. at 97.
The article is essentially a requirement that member
states grant refugees the unrestricted right to work, on par with
the rights that would be extended to other aliens. Yet, as noted
above, withholding of removal status requires the periodic
importance that they warrant exploration notwithstanding Garcia's
failure to explicitly raise them in his brief, for the same reasons
identified at supra, note 24.
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refiling of work applications to USCIS, which has discretion to
reject or delay the applications, and the expiration of a permit
results in the inability for the alien to work legally, in contrast
with asylum status, where the expiration of the permit does not
deprive the asylee of the right to work. See 8 C.F.R.
§ 274a.12(a)(5). Additionally, asylees are exempted from the class
of aliens who "must apply" to USCIS "for a document evidencing
such employment authorization," while aliens in withholding of
removal are not. Id. § 274a.12(a). Because state parties are
obliged to extend the most favorable treatment to refugees
(comparable, at minimum, to the treatment they extend to non-
refugee aliens from the same country), the imposition of a more
cumbersome work permit program for aliens in withholding of removal
status who are seeking employment likely violates the spirit, if
not the letter, of Article 17.
ii. Article 28
Article 28 of the Convention requires that "[t]he
Contracting States shall issue to refugees lawfully staying in
their territory travel documents for the purpose of travel outside
their territory, unless compelling reasons of national security or
public order otherwise require." 19 U.S.T. at 6274. This
requirement arose from a recognition that "[r]efugees who do not
enjoy the protection of the authorities of their country of origin
do not have national passports" and "would therefore be unable to
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leave the initial reception country if a document replacing the
passport had not been established for their benefit." Weis,
Travaux, at 157.
While considering several proposed drafts of Article 28,
the U.K. representative noted that were a refugee not issued a
travel document by the state in question, "the refugee would
probably not be allowed to enter other countries, for they would
hesitate to admit him for fear that they might be obliged to keep
him permanently on their territory without this provision." Weis,
Travaux, at 161. The U.S. representative said that while "the US
had not adhered to any convention or agreement relating to travel
documents for refugees" prior to these discussions, he could
"assure the Committee that refugees resident in the US would
ordinarily be able to leave the country and to return to it." Id.
at 162 (emphasis added).
Article 28 is a categorical requirement, "a mandatory
obligation on Contracting States to issue the document," see Weis,
Travaux, at 194, yet an alien who has been granted withholding of
removal (as opposed to asylum) is not eligible for such a travel
document, which essentially renders him trapped in the United
States (at least unless the government finds a third country that
is willing to take him). Because these documents are unavailable
for people afforded withholding of removal status, the grant of
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withholding of removal to an individual that otherwise qualifies
as a refugee (like Garcia) is a per se violation of the Convention.
The majority's rejoinder to this point is that the clause
allowing for exceptions to this requirement when "compelling
reasons of national security or public order otherwise require"
allows the government to skirt this requirement because "deterring
repeated unlawful entry into this country" is a "compelling
reason[] of . . . public order." See ante at 34. This is a
temporal non-sequitur, because the government has already made a
decision that Garcia meets the "reasonable fear" requirement for
withholding of removal. If concerns of "public order" dictated
that Garcia be kept out of the United States, then the United
States would have various grounds to refuse to grant him
withholding of removal. But after deciding that Garcia poses no
such threat, on what possible basis could the government argue
that "public order" considerations required that he not be
permitted to leave the United States for some other country?
Nor is the majority correct in its suggestion that Garcia
needs to make "an argument to the contrary" for why the United
States does not have a "compelling reason of . . . public order"
for denying travel documents to individuals in withholding of
removal. Id. That suggestion places the burden on the wrong
party, because "the issue of the travel document is an obligation"
imposed on the state, and applies "unless compelling reasons of
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public security or public order justify a refusal." Weis, Travaux,
at 194 (emphasis in original). Examples given for such
"compelling" grounds in the commentaries include "cases where a
refugee seeks to escape prosecution or punishment for a criminal
offence or where the refugee is suspected of travelling in order
to engage in criminal or espionage activities." Id. It would
not, it seems to me, apply to the issuance of a travel document to
an alien, like Garcia, who had already been determined to have
qualified for protected status and already had a full security
screening as part of the withholding of removal process.
iii. Article 31
Article 31 of the Convention provides that "[t]he
Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly from
a territory where their life or freedom was threatened . . . enter
or are present in their territory without authorization," 19 U.S.T.
at 6275. This treaty commitment is implemented in the INA by the
provision, at issue in this case, which allows individuals to apply
for asylum "irrespective of such alien’s status," 8 U.S.C.
§ 1158(a)(1), because to deny asylum relief to a refugee that has
flouted a country's border control or immigration laws because of
the urgency with which he was required to leave his home country
would be to penalize him for the very fact of being a refugee,
see 8 U.S.C. § 1101(a)(42) (recognizing that refugees, by
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definition, are fleeing persecution); UN Ad Hoc Committee on
Refugees and Stateless Persons, Memorandum by the Secretary-
General, UN Doc. E/AC.32/2, Ch. XI, Art. 24. Para. 2 (Jan. 3, 1950)
("A refugee whose departure from his country of origin is usually
a flight, is rarely in a position to comply with the requirements
for legal entry (possession of national passport and visa) into
the country of refuge.") For this reason, the principle of non-
penalization is described in UNHCR's Introductory Note to the
Convention as one of the most notable "fundamental principles"
which "underpin[s]" the Convention's commitment to rights
protection, along with non-discrimination and non-refoulement.
See Introductory Note (UNHCR) (2010), UN Convention Relating to
the Status of Refugees ("This recognizes that the seeking of asylum
can require refugees to breach immigration rules.").
Because of the importance of this provision, "penalties"
cannot be interpreted as merely the assessment of a fine or
imprisonment, but must be applied flexibly to assess whether a
state party is denying the full scope of refugee protection to a
particular individual on account of his or her illegal entry into
the state's territory.35 See Refugee Convention, Introductory Note
35
We have previously held that detention of an alien does not
violate Article 31 because that provision "was not intended to
prevent a government from detaining one who attempted to enter
illegally, pending a final decision as to whether to admit or
exclude the person." Amanullah v. Nelson, 811 F.2d 1, 16 n.10
(1st Cir. 1987). Here, however, the Article 31 problem is not
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("Prohibited penalties might include being charged with
immigration or criminal offences relating to the seeking of asylum,
or being arbitrarily detained purely on the basis of seeking
asylum"); see also James C. Hathaway, The Rights of Refugees Under
International Law 405 (2005) (stating that penalties may include
"sanctions that might ordinarily be imposed for breach of the
asylum state's general migration control laws"). Though not
defined in the Convention, the commentary notes that "[i]t is clear
from the travaux préparatoires that ['penalties'] refers to
administrative or judicial convictions on account of illegal entry
or presence, not to expulsion." Weis, Travaux, at 219.
Here, although the penalty imposed on Garcia is not in
the form of a criminal conviction, it is, in essence, an
administrative sanction on account of his earlier illegal entry
-- one automatically imposed by 8 U.S.C. § 1231(a)(5) without
regard to the underlying circumstances in a petitioner's case.
See Penalty, Black's Law Dictionary (10th ed. 2014) (defining a
"statutory penalty" as one that is "imposed for a statutory
violation; esp., a penalty imposing automatic liability on a
wrongdoer for violation of a statute's terms."). It is also worth
detention but the denial of certain forms of relief that would
otherwise be available to aliens (the right, in this case, merely
to apply for asylum), and in Garcia's case, unlike in Amanullah,
the government has already made a decision not to exclude Garcia
from the country.
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noting that an Amendment was introduced by the Austrian delegate
during the Convention negotiations which would have provided that
the non-penalization provision "shall not apply, however, to a
refugee against whom an expulsion or residence order has been
issued under a judicial or administrative decision of the State in
which he seeks asylum." Weis, Travaux, at 214. This amendment,
which describes Garcia's situation in spades, was voted down
overwhelmingly, see id. at 216, and the final non-penalization
provision of Article 31 did not distinguish a state's obligation
to a refugee based on the existence of a prior deportation or
removal order against the same refugee.36
Case law from other signatory states and from
international courts also supports a flexible interpretation of
"penalties."37 For instance, in R v. Uxbridge Magistrates Court
and Another, ex parte Adimi, the U.K. High Court (Divisional Court)
noted that Article 31's protections "extend[ed] not merely to those
36 Indeed, the Commentary and travaux préparatoires suggest
that "[i]n the case of asylum-seekers, proceedings on account of
illegal entry or presence should be suspended pending examination
of their request," see Weis, Travaux, at 219. In other words,
states are obliged to hear the asylum claim first before forging
ahead with ordinary removal or deportation "proceedings on account
of illegal entry or presence." Id.
37 When "interpreting any treaty, [t]he 'opinions of our
sister signatories' . . . are 'entitled to considerable weight.'"
Abbott v. Abbott, 560 U.S. 1, 16 (2010) (quoting El Al Israel
Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176
(1999)(alterations in original)).
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ultimately accorded refugee status but also to those claiming
asylum in good faith," and that the non-penalization obligation
had as its broad purpose "to provide immunity for genuine refugees
whose quest for asylum reasonably involved them in breaching the
law." [1999] EWHC (Admin) 765, [15-16] (Eng.); see also UK Soc.
Sec. Comm. Dec. No. CIS/4439/98, ¶ 16 (Nov. 25, 1999) (noting that
interpreting "penalties" narrowly would "put[] form above
substance and would enable contracting states to evade Article
31"). In interpreting the word "penalty" as used in the
International Covenant on Civil and Political Rights (ICCPR), the
UN Human Rights Committee has embraced a similarly flexible
approach. See Van Duzen v. Canada, UNHRC Comm. No. 50/1979,
¶ 10.2 (Apr. 7, 1982) (stating that Article 15 of the ICCPR, which
prohibits the imposition of "a heavier penalty . . . than the one
that was applicable at the time when the criminal offence was
committed," should be interpreted according to the "object and
purpose" of the treaty as a whole).
In short, because the majority's approach categorically
prevents an alien in Garcia's situation from applying for relief
that would be available to other aliens, I would consider this
administrative roadblock to constitute an impermissible "penalty"
that is imposed on Garcia, likely triggering a violation of Article
31 because the penalty is imposed before Garcia's status as a
refugee can be determined. See Hathaway at 407 (noting that it is
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"lawful for a government to charge an asylum-seeker with an
immigration offense, and even to commence a prosecution, so long
as no conviction is entered until and unless a determination is
made that the individual is not in fact a Convention refugee.")
Viewing this administrative ruling as a penalty makes particular
sense in a case like Garcia's, where the Attorney General's
practices in the first instance of illegal entry have "deprive[d]
the asylum seeker of the right to gain effective access to the
procedure for determining refugee status." Amuur v. France, Eur.
Ct. H.R., App. No. 19776/92, ¶ 43 (1996) (emphasis added).
iv. Article 34
Taken together, the above violations lend credence to
Garcia's argument that the government's position likely violates
Article 34 of the Convention. That provision, as noted in the
majority opinion, provides that "[t]he Contracting States shall as
far as possible facilitate the assimilation and naturalization of
refugees." 19 U.S.T. at 6276 (emphasis added). While "precatory,"
Cardoza-Fonseca, 480 U.S. at 441, and non-self-executing, Stevic,
467 U.S. at 428, I have serious doubts as to whether the bifurcated
system of withholding of removal and asylum comports with the basic
spirit of Article 34, particularly when an alien's initial removal
order was bereft of basic fairness and process.
There is one final way in which a reading of the statute
that only allows for withholding of removal to a petitioner like
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Garcia is in serious tension with Article 34's commitment to
facilitate the assimilation and naturalization of eligible
refugees, and also with Article 31's prohibition on "penalizing"
refugees. As both the majority opinion and Section I.F of this
dissent point out, an alien must meet a much higher evidentiary
showing to qualify for withholding of removal.
Aliens with previous removal orders, therefore, have to
meet a higher burden to get less relief, even when they never had
a meaningful opportunity to meet the lesser burden and receive the
right to apply for more relief. I question how this could possibly
be consistent with the object and purpose of Articles 31, 34, and
the Convention as a whole. Ultimately, even though Article 34 "is
in the form of a recommendation," Weis, Travaux, at 251, it seems
very doubtful to me whether this is a recommendation that we as a
country are following in good faith.
C. The ICCPR
Although the petitioner does not raise this issue, I
want to note one final Charming Betsy problem: the approach adopted
by the majority today leaves in place a structure, evidenced by
Garcia's situation, which deprives aliens on U.S. soil of the fair
trial guarantees enshrined in the International Covenant on Civil
and Political Rights, 999 U.N.T.S. 171. The ICCPR was signed by
the United States in 1976 and ratified thereafter by the Senate in
1992. Similar to the Refugee Protocol, the ICCPR was ratified "on
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the express understanding that it was not self-executing and so
did not itself create obligations enforceable in the federal
courts." Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004).
Notwithstanding its non-self-executing status, the
Supreme Court and lower federal courts have frequently consulted
the ICCPR as an interpretive tool to determine important issues in
the area of human rights law. See, e.g., Roper v. Simmons, 543
U.S. 551, 576 (2005) (referring to the ICCPR to support the
prohibition on the juvenile death penalty); Ma, 257 F.3d at 1114(relying on Article 9 of the ICCPR, which prohibits arbitrary
arrest or detention, when interpreting a provision of the INA);
Igartúa-De La Rosa v. United States, 386 F.3d 313, 319 (1st Cir.
2004) (Torruella, J., dissenting), reh'g granted, judgment
vacated, 404 F.3d 1 (1st Cir. 2005) (stating that, despite its
non-self-executing status, "I am nonetheless compelled to
recognize that the United States is in violation of its obligation
under Article 25 to afford universal suffrage to its citizens"
with respect to voting rights of residents of Puerto Rico).
The ICCPR applies to "all individuals within [a State's]
territory and subject to its jurisdiction," ICCPR art. 2, ¶ 1, a
category which includes aliens. Most pertinent to this case,
Article 14 of the ICCPR lays out the basic protections for the
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right to a fair trial.38 Among these basic rights are: "[t]o be
informed promptly and in detail in a language which he understands
of the nature and cause of the charge against him," Art. 14(3)(a);
"[t]o have adequate time and facilities for the preparation of his
defence and to communicate with counsel of his own choosing," Art.
14(3)(b); "to be informed, if he does not have legal assistance,
of this right; and to have legal assistance assigned to him, in
any case where the interests of justice so require," Art. 14(3)(d);
and "[t]o have the free assistance of an interpreter if he cannot
understand or speak the language used in court," Art. 14(3)(f).
As I have emphasized throughout this dissent, none of
these rights, which are also protected under U.S. law and broadly
apply to aliens in removal proceedings, were extended to Garcia
during his initial removal proceedings. True, the government has
apparently remedied these violations in the instant case: Garcia
is counseled and had access to an interpreter during the 2015
proceedings. However, the government's interpretation of the INA
is essentially a "one strike and you're out" policy, so it does no
good for Garcia to have access to these basic due process
protections now, when he has already been hoodwinked by the
38
The Refugee Convention, too, provides that all refugees
"shall have free access to the courts of law on the territory of
all contracting states," Refugee Convention, Art. 16, a right that
"applies to all refugees wherever resident and whether the
residence is lawful or not." Weis, Travaux, at 97.
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Potemkin process that infected his initial encounter with our
justice system. It would presumably come as no surprise to Garcia
to learn that a Government Accountability Office Report conducted
the year after his initial removal concluded that "having [legal]
representation was associated with more than a three-fold increase
in the asylum grant rate compared to those without representation."
See U.S. Gov't Accountability Office, GAO-08-940, U.S. Asylum
System: Significant Variation Existed in Asylum Outcomes Across
Immigration Courts and Judges 30 (2008). It would also do no good
for him to learn this after the fact.
Because none of the basic elements of due process were
met in Garcia's initial removal proceedings, and because the
approach taken by the majority today leaves in place a deferential
legal scaffolding that allows such tainted procedures to go
unchecked, I would also find that deference to the agency on this
statutory question causes the United States to be in violation of
its commitments under the ICCPR's fair trial provisions.
IV. Conclusion
There is much to be said for the majority's observation
that "[i]mmigration law is distinguished by its complexity more
than by its clarity." Ante at 4. In the face of such complexity,
it can be tempting to throw up our hands and say that while these
immigration cases are sad (and they often are), we will simply
defer to the immigration authorities' reasoned judgment as to its
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statutory mandate, never mind the consequences and never mind the
volume of due process and international law principles that are
trampled along the way.
This sort of judicial muscle memory may be the easy
answer, but it is not always the correct one. Because the
petitioner in this case was not afforded due process in his
underlying removal proceedings, and because we are obliged to
interpret statutes in consonance with international treaty
obligations where fairly possible, we need not defer to an agency
interpretation which violates these obligations.
I therefore dissent.
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