R-S-C v. Sessions

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 6, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
R-S-C,
Petitioner,
v. No. 15-9572
JEFFERSON B. SESSIONS, III,
United States Attorney General,
Respondent.
-------------------------------------------
AMERICAN IMMIGRATION
LAWYERS ASSOCIATION;
NATIONAL IMMIGRANT JUSTICE
CENTER,
Amici Curiae.
_________________________________
Petition for Review from the Board of Immigration Appeals
_________________________________
Maria E. Andrade, Andrade Legal, Boise, Idaho, for Petitioner.
Corey L. Farrell, Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, and Terri J. Scadron, Assistant Director, with him on the briefs),
Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington
D.C., for Respondent.

Pursuant to Fed. R. App. P. 43(c)(2), Jefferson B. Sessions, III, replaces
Loretta Lynch as the United States Attorney General.
Mark Barr, Lichter Immigration, Denver, Colorado, Charles Roth and Zeren Zwick,
National Immigrant Justice Center, Chicago, Illinois, filed a for Amici Curiae.
_________________________________
Before EBEL and LUCERO, Circuit Judges.1
_________________________________
EBEL, Circuit Judge.
_________________________________
There is an apparent conflict, which is squarely presented in this case, between
two provisions of the Immigration and Nationality Act (INA). The asylum section
provides that “[a]ny alien . . . , irrespective of such alien’s status, may apply for
asylum[.]” 8 U.S.C. § 1158(a)(1) (emphasis added). By contrast, the reinstatement
provision mandates that a previously deported alien who illegally reenters the United
States will have his prior removal order reinstated and “is not eligible and may not
apply for any relief . . . .” Id. § 1231(a)(5) (emphasis added). Tasked with
administering these provisions, the Attorney General has determined that the latter
subsection prevails—an illegal reentrant with a reinstated removal order is not
eligible for asylum relief. 8 C.F.R. § 1208.31(e), (g)(2)(i).
R-S-C illegally reentered the United States after having been removed and her
prior removal order was reinstated, thus under the Attorney General’s interpretation
of the INA, she cannot apply for asylum. She now challenges the Attorney General’s
1
The Honorable Neil Gorsuch participated in the oral argument but not in the decision,
in this case. The practice of this Court permits the remaining two panel judges, if in
agreement, to act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d); see also
United States v. Wiles, 106 F.3d 1516, 1516, n* (10th Cir. 1997) (noting that this Court
allows remaining panel judges to act as a quorum to resolve an appeal). In this case, the
two remaining panel members are in agreement.
2
regulations as inconsistent with the INA’s asylum guarantee. We conclude that
Congress has not clearly expressed whether aliens governed by the reinstatement
provision may apply for asylum. However, the Attorney General’s regulations are
consistent with a reasonable interpretation of the statutory scheme, so they are
entitled to administrative deference. Accordingly, we DENY the petition for review.
I. BACKGROUND
A. Legal Background
1. International Agreements and Statutes
The United States has acceded to, and agreed to be bound by, the 1951 U.N.
Convention Relating to the Status of Refugees (Refugee Convention), 189 U.N.T.S.
150 (July 28, 1951). See 1967 Protocol Relating to the Status of Refugees, 19 U.S.T.
6223 (Nov. 6, 1968); INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987). The
Refugee Convention contains two principles relevant to this case. First, Article 33.1
provides that “[n]o Contracting State shall expel or return (‘refouler’) a refugee . . .
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 6267 (emphasis added). This prohibition on deporting aliens to a country of risk is
known as the “nonrefoulement” principle. Cardoza-Fonseca, 480 U.S. at 440.
Second, Article 34 states that “[t]he Contracting States shall as far as possible
facilitate the assimilation and naturalization of refugees.” Id. (emphasis added).
3
Congress imbued these international commitments with the force of law when
it enacted the Refugee Act of 1980 (Refugee Act), Pub. L. 96-212, 94 Stat. 102-18,
which amended the INA in certain respects. The Refugee Act prohibited the
Attorney General from deporting any alien to a country if such deportation would
endanger that alien’s life or freedom based on certain characteristics of the alien. Id.
§ 203(e), 94 Stat. 107. In addition, the Refugee Act also directed the Attorney
General to “establish a procedure for an alien . . . irrespective of such alien’s status,
to apply for asylum.” Id. § 201(b), 94 Stat. 105. Whether the alien ultimately
received asylum was a discretionary decision entrusted to the Attorney General. Id.;
see also Cardoza-Fonseca, 480 U.S. at 428 n.5.
Congress then passed the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (codified as
amended in scattered sections of 8 U.S.C.), which refashioned the above principles
into their current form. As for nonrefoulement, the statute now provides that “the
Attorney General may not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A) (emphasis added). The implementing
regulations refer to this prohibition as “withholding of removal.” 8 C.F.R. § 1208.16.
IIRIRA also revised the asylum section of the INA, which now provides that
“[a]ny 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
4
accordance with [section 1158] . . . .” 8 U.S.C. § 1158(a)(1) (emphasis added).
Section 1158 further states that “the Attorney General may grant asylum to an alien,”
§ 1158(b)(1)(A) (emphasis added), except in certain enumerated circumstances,
§ 1158(b)(2)(A). Thus, as it was in the Refugee Act, the determination of whether an
eligible applicant actually receives asylum is within the discretion of the Attorney
General. Id.; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999) (“[W]hereas
withholding is mandatory . . . , the decision whether asylum should be granted to an
eligible alien is committed to the Attorney General’s discretion.”). Finally, the
asylum section provides that “[t]he Attorney General may by regulation establish
additional limitations and conditions, consistent with [section 1158], under which an
alien shall be ineligible for asylum . . . .” § 1158(b)(2)(C) (emphasis added).
IIRIRA also addressed a separate issue altogether, which is at the heart of this
case: reinstatement of previous removal orders. Congress was frustrated with
existing procedures for deporting aliens who repeatedly re-entered the United States
unlawfully.2 In order to expedite the removal process for these repeat offenders and
deter illegal reentry, Congress mandated:
If the Attorney General finds that an alien has reentered the
United States illegally after having been removed . . . under an
order of removal, the prior order of removal is reinstated . . .
and is not subject to being reopened or reviewed, the alien is
not eligible and may not apply for any relief under this
2
H.R. Rep. No. 104-469(I), at 107, available at 1996 WL 168955 (“Existing
procedures to deny entry to and to remove illegal aliens from the United States are
cumbersome and duplicative.”); id. at 155 (“[T]he ability to cross into the United
States over and over with no consequences undermines the credibility of our efforts
to secure the border.”).
5
chapter, and the alien shall be removed under the prior order
at any time after the reentry.
8 U.S.C. § 1231(a)(5). In interpreting this reinstatement provision, the Supreme
Court explained that it “applies to all illegal reentrants, explicitly insulates the [prior]
removal orders from review, and generally forecloses discretionary relief from the
terms of the reinstated order.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34
(2006) (emphasis added).
2. Apparent Conflict and Attorney General’s Regulations
After IIRIRA’s amendments, there is an apparent conflict between two
sections of our immigration laws. While the asylum section entitles “any alien . . .
irrespective of such alien’s status” to apply for asylum, § 1158(a)(1), the
reinstatement provision precludes aliens with reinstated removal orders from
obtaining “any relief,” § 1231(a)(5). So the question is whether an alien subject to
reinstatement is eligible for asylum relief.
The Attorney General has answered this question in the negative. Regulations
promulgated by the Immigration and Naturalization Service (INS)—an agency
formerly under the purview of the Attorney General—preclude aliens subject to
reinstated removal orders from applying for asylum, but those aliens may
nevertheless apply for withholding of removal.3 8 C.F.R. § 1208.31(e) (When the
3
The regulations also offer relief under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, 1465
U.N.T.S. 85, based upon a showing that the applicant would likely be tortured if
6
asylum officer initially concludes the alien warrants relief, the immigration judge
may consider “the request for withholding of removal only.” (emphasis added)); id.
§ 1208.31(g)(2)(i) (When the asylum officer initially concludes the alien does not
warrant relief, and the immigration judge disagrees with that determination, “[t]he
immigration judge shall consider only the alien’s application for withholding of
removal . . . .” (emphasis added)); see also Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999) (“Unlike the broad class of
arriving aliens who are subject to expedited removal, . . . aliens [with reinstated
removal orders] are ineligible for asylum.” (emphasis added)).4 Thus, when an alien
with a reinstated removal order credibly expresses a reasonable fear of persecution,
that alien is placed in “withholding-only” proceedings, with no opportunity to apply
for asylum. AR 861. This withholding-only rule is consistent with the United States’
nonrefoulement obligation, as well as the statutory prohibition on deporting aliens to
a country wherein the alien would suffer persecution on the basis of certain personal
characteristics. 8 U.S.C. § 1231(b)(3)(A).
Unfortunately, the Attorney General’s restriction on asylum makes a
difference to an applicant because asylum “affords broader benefits” than
returned to his home country. See 8 C.F.R. § 1208.31(c). That form of relief is
materially similar to withholding of removal under 8 U.S.C. § 1231(b)(3)(A), but
because it is not implicated here, we do not address it.
4
These regulations were originally promulgated as 8 C.F.R. §§ 208.31(e),
208.31(g)(2)(i), but were recodified in 2003 with a “1” preceding each section.
Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed.
Reg. 9824 (Feb. 28, 2003). For convenience, we refer to the recodified sections
throughout this opinion.
7
withholding of removal. Cardoza-Fonseca, 480 U.S. at 428 n.6. Asylum status
offers protection from deportation to any country, 8 C.F.R. § 208.22, a pathway to a
green card and U.S. citizenship, id. § 209.2, the ability to travel outside the United
States without being barred from reentry, id. § 223.1, and derivative asylum status for
spouses and children, id. § 208.21. Withholding of removal, however, offers none of
those benefits—it only protects the applicant from removal to a country of risk, and
does not even foreclose the possibility of deportation to a safe third country. See id.
§ 208.22; see also Garcia v. Sessions, 856 F.3d 27, 32 (1st Cir. 2017) (describing
difference in benefits between asylum and withholding of removal).
With this statutory and regulatory regime in mind, we turn to the facts of the
case before us.
B. Factual Background
R-S-C is an indigenous Guatemalan woman who has come to the United States
without inspection three times to escape persecution in her home country. In
Guatemala she was raped on numerous occasions, sodomized, physically beaten and
strangled, kidnapped, and extorted—all while local law enforcement authorities did
nothing to prevent these abuses. She suffered this persecution, in substantial part,
because she was an indigenous Guatemalan woman in a country that routinely
condoned and encouraged severe mistreatment of its own indigenous women.
After the local Guatemalan police refused to protect her from some of these
reported abuses, R-S-C first fled to the United States in January 2014 without
8
inspection and was apprehended by border officials. R-S-C told them that she “had
fear, and that [she] had come fleeing because [others] wanted to kill [her].” AR 205.
She testified that the officers did not believe her, and that they accused all
Guatemalans of being “liars.” Id. Without referring her to an asylum officer to
investigate her claimed fear of persecution, the border officials summarily deported
R-S-C. She was ordered removed on January 13, 2014.
R-S-C stated that upon return to Guatemala she was drugged, raped, and left
for dead on a riverbank. Shortly thereafter, she again made her way to the United
States and arrived in early April 2014 without inspection. After being apprehended
by immigration officials, she asked them to “please help [her] because [she] was
fearful of returning to [her] country.” AR 213. According to R-S-C, an officer called
her a “liar” based on her failure to bring along her children to the United States. AR
214. Again without referring her to an asylum officer for an interview, border
officials deported R-S-C on April 9, 2014.
R-S-C testified that when she returned to Guatemala, violent threats and
extortion against her continued. So she fled to the United States again, this time
accompanied by her eight-year-old son. She arrived in the United States without
inspection on July 7, 2014, at or near Hidalgo, Texas, and was apprehended by
immigration authorities on or about that same day. On July 23, 2014, the Department
of Homeland Security (DHS) notified R-S-C of its intent to reinstate the prior
January 13, 2014 removal order, thereby triggering the relief bar of 8 U.S.C.
§ 1231(a)(5). R-S-C signed a form declining to contest DHS’s determination that she
9
was subject to reinstatement. She did, however, express again her fear of returning to
Guatemala. This time, immigration officials referred R-S-C to an asylum officer for
an interview about her claimed fear of persecution.5
The asylum officer found that R-S-C did not have a reasonable fear of
persecution if returned to Guatemala. An immigration judge, however, subsequently
reviewed and vacated that decision and placed R-S-C in “withholding-only”
proceedings. Nevertheless, because of asylum’s superior benefits (e.g., the pathway
to citizenship, the ability to travel internationally, and the chance to apply for asylum
status for a spouse and children), R-S-C asked the immigration judge to award
asylum rather than withhold of removal. After a hearing, the immigration judge
issued a decision on January 5, 2015, awarding R-S-C withholding of removal but
ignoring R-S-C’s request for asylum. R-S-C appealed to the Board of Immigration
5
Federal law requires immigration officials to refer an alien for an interview with an
asylum officer whenever that alien expresses a fear of persecution upon return to her
country of origin. 8 U.S.C. § 1225(b)(1)(A)(ii). However, R-S-C does not appear to
challenge the original January 13, 2014 removal order itself as void on the ground
that she was unlawfully deported without such an interview. Even if she did attack
the validity of that removal order, we most likely would not have jurisdiction to
entertain such a challenge. See 8 U.S.C. § 1231(a)(5) (“the prior order of
removal . . . is not subject to being reopened or reviewed”); see also Garcia-Marrufo
v. Ashcroft, 376 F.3d 1061, 1063-64 (10th Cir. 2004) (“[O]ur jurisdiction is limited
to considering whether the reinstatement order was properly entered—we cannot
consider the propriety of the underlying removal order.”). Nor does R-S-C argue that
the reinstatement decision—which we do have jurisdiction to review—is defective on
the ground that it relies on a removal order that itself was constitutionally tainted.
See Garcia, 856 F.3d at 50-52 (Stahl, J., dissenting) (explaining how, under the U.S.
Constitution’s Suspension Clause and 8 U.S.C. § 1252(a)(2)(D), jurisdiction exists to
attack the constitutionality of a reinstatement decision predicated on a removal order
that was entered in violation of Due Process).
10
Appeals (BIA) on the asylum issue, arguing that even illegal reentrants with
reinstated removal orders are eligible for asylum. The BIA disagreed, and dismissed
the appeal. R-S-C now petitions this Court for review.
II. DISCUSSION
We first address R-S-C’s threshold argument that the reinstatement provision
does not apply to her because she did not illegally reenter the United States. Finding
no merit to that contention, we proceed to answer the principal question presented in
this appeal. Because Congress did not clearly resolve the conflict between
§ 1158(a)(1) and § 1231(a)(5) through the statutory text, we assess whether the
Attorney General’s interpretation is reasonable. Because the withholding-only rule is
consistent with a reasonable construction of the statutory scheme, it is entitled to
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).
A. Applicability of the Reinstatement of Removal Provision to R-S-C
The reinstatement of removal provision is triggered when an alien “reenter[s]
the United States illegally” after having been previously removed. 8 U.S.C.
§ 1231(a)(5) (emphasis added). R-S-C argues on appeal that the reinstatement statute
and its attendant regulations do not apply to her request for relief because she did not
“reenter” the United States “illegally” within the meaning of the statute. In effect,
she is challenging the immigration officer’s determination that she illegally reentered
11
the United States. She contends that her July 7, 2014 arrival at or near Hidalgo,
Texas was not an “entry” into the United States because she was merely attempting to
present herself to immigration officials to apply for asylum. And even if that did
constitute an entry, it was not “illegal” because her country of origin, Guatemala,
does not have an in-country processing program for refugee applicants to the United
States, so arrival at the U.S. border was the only way to seek relief.
The problems with this argument are two-fold. First, R-S-C expressly
declined to contest the determination that she reentered the United States illegally.
Before her prior removal order was reinstated, R-S-C was given notice on a form that
stated: “You illegally reentered the United States on or about July 7, 2014 at or near
Hidalgo, TX.” AR 866 (emphasis added). R-S-C affixed her signature next to a
declaration that she “d[id] not wish to make a statement contesting this
determination.” Id. She could have, at that time, explained that she was looking for
the nearest immigration officer in order to make her case for asylum, see, e.g.
Cardova-Soto v. Holder, 659 F.3d 1029, 1031 (10th Cir. 2011) (alien submitted
sworn statement contesting determination that she illegally reentered the United
States), but she intentionally relinquished her right to do so.
Second, even if R-S-C’s legal arguments are correct—i.e., that earnestly
seeking out an immigration official to apply for asylum is not an illegal reentry
within the meaning of the reinstatement statute—the administrative record here does
not support that version of the facts. The INA restricts our review of R-S-C’s
petition only to the administrative record, see 8 U.S.C. § 1252(b)(4)(A), and
12
“administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary,” id. § 1252(b)(4)(B). There is
simply no evidence in this record suggesting that R-S-C presented herself at the
border in search of an immigration officer to file an asylum application. See
Anderson v. Napolitano, 611 F.3d 275, 279 (5th Cir. 2010) (denying a petition for
review of a reinstatement decision based on the alien’s failure to point out evidence
that undermines the immigration officer’s determination of illegal reentry). To be
sure, the record suggests that R-S-C came into the custody of immigration authorities
in Hidalgo, TX on or about the same day that she entered the United States—but that
fact alone could just as well be a testament to the skilled efforts of U.S. border patrol
agents who quickly apprehended a recently-entered alien.
Without evidence that R-S-C was affirmatively seeking out an immigration
officer to apply for asylum, even if that were legally sufficient to transform an entry
without inspection into a lawful entry, we must regard the immigration officer’s
determination as “conclusive.” 8 U.S.C. § 1252(b)(4)(B). This is especially true
when R-S-C intentionally abandoned her right to make a statement contesting that
determination. Accordingly, we decline to set aside the reinstatement decision on the
ground that R-S-C did not illegally reenter the United States.
B. Statutory Conflict Between the Asylum and Reinstatement Provisions
We turn now to the principal question presented: Can an illegal reentrant with
a reinstated removal order apply for asylum? In answering this question, we proceed
13
along Chevron’s two-step framework. First, we examine “whether Congress has
directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. In light
of the apparent conflict between the asylum and reinstatement provisions, we
conclude that the statutory command is ambiguous. Second, because “the statute is
silent or ambiguous with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible construction of the statute.”
Id. at 843. “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)
(emphasis added). In this case, because the Attorney General’s withholding-only rule
is consistent with a reasonable interpretation of the statutory scheme, it warrants
Chevron deference.6
6
Every federal court of appeals to have considered this issue has determined that the
reinstatement provision bars aliens with reinstated removal orders from obtaining
asylum, either because Congress clearly said so by the plain terms of the statute or
because the Attorney General’s reasonable regulations warrant Chevron deference.
See Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016)
(resolving the issue on the plain terms of the statute); Ramirez-Mejia v. Lynch, 794
F.3d 485, 489-91 (5th Cir. 2015) (same); Herrera-Molina v. Holder, 597 F.3d 128,
138-39 (2d Cir. 2010) (same); Garcia v. Sessions, 856 F.3d 27, 35-41 (1st Cir. 2017)
(deferring to Attorney General’s reasonable interpretation); Cazun v. Att’y Gen.
U.S., 856 F.3d 249, 254-61 (3d Cir. 2017) (same); Perez-Guzman v. Lynch, 835 F.3d
1066, 1074-77, 1079-82 (9th Cir. 2016) (same). In the cases that did not apply
Chevron deference, the courts did not substantively analyze the effect of the asylum
provision, 8 U.S.C. § 1158(a)(1), but rather “mentioned it only in passing[.]” Perez-
Guzman, 835 F.3d at 1074 (citations omitted) (addressing the earlier cases that
declined to apply Chevron deference). They focused instead on the seemingly
absolute language of the reinstatement provision, which bars aliens subject to its
terms from receiving “any relief.” 8 U.S.C. § 1231(a)(5).
14
1. Chevron Step One—Congress Did Not Clearly Resolve the Question
The statutory text does not clearly indicate whether illegal reentrants with
reinstated removal orders are eligible to apply for asylum. Section 1158(a)(1)
entitles “any alien . . . irrespective of such alien’s status” to apply for asylum.
(emphasis added). Section 1231(a)(5), by contrast, provides that a specific class of
aliens—those who illegally reentered the United States and whose prior removal
orders have been reinstated—are “not eligible and may not apply for any relief under
this chapter[.]”7 (emphasis added). It is apparent that these two provisions are at
odds with one another. The parties both attempt to explain how their preferred
provision unambiguously controls over the other, but we are not persuaded. For
several reasons, this intra-statutory conflict obscures any clear command from
Congress on whether aliens subject to reinstated removal orders may apply for
asylum.
First, and most obviously, each provision appears to encompass the other.
Section 1158(a)(1)’s language referring to “any alien . . . irrespective of such alien’s
status” logically includes aliens with reinstated removal orders. (emphasis added).
At the same time, § 1231(a)(5)’s reference to “any relief” naturally encompasses
asylum as a particular form of prohibited relief. (emphasis added). The statutory
7
“[U]nder this chapter” refers to Chapter 12 of Title 8 of the U.S. Code. The
provisions on asylum, set forth at 8 U.S.C. § 1158, are located within the same
Chapter 12, so there is no dispute that the rules for asylum are “under this chapter,”
as referenced in § 1231(a)(5).
15
text of each subsection thus appears to incorporate the other, and Congress has
offered no reliable indicator of which provision takes precedence over the other.
R-S-C counters that the reference to “any alien . . . irrespective of such alien’s
status” communicates an unmistakable command, while the phrase “any relief” is
ambiguous, so the clear should trump the vague. The argument goes as follows. The
asylum subsection, by its own terms, unquestionably applies to all aliens. By
contrast, the reinstatement provision is equivocal because the apparent prohibition on
applying for “any relief” does not truly foreclose all forms of immigration relief.
That is because even an alien subject to reinstatement may nevertheless apply for
withholding of removal. 8 U.S.C § 1231(b)(3)(A). Thus, the undefined and qualified
reference to “any relief” cannot take precedence over the clear statement that “any
alien . . . irrespective of such alien’s status” may apply for asylum.
We reject this argument for several reasons. At the outset, the absence of any
statutory definition for the term “relief” supports, rather than detracts from, our
conclusion that Congress has failed to address the precise issue in this case.
Furthermore, the fact that “any relief” has a caveat elsewhere in the statute does no
more to undermine the breadth of the reinstatement provision than the enumerated
exceptions to asylum eligibility undercut the scope of the asylum guarantee. See
§ 1158(a)(2)(A)-(C) (exceptions to asylum eligibility). In other words, both
provisions are “qualified in certain respects when read in context.” Perez-Guzman,
835 F.3d at 1074 (9th Cir.); accord Cazun, 856 F.3d at 255-56 (3d Cir.). We
16
therefore decline to give the asylum subsection controlling weight based upon this
theory.8
Second, we find no clarity in the well-established principle that, when two
statutes conflict, the “specific governs the general.” Nitro-Lift Techs., LLC v.
Howard, 568 U.S. 17, 21 (2012). We often apply this interpretive canon because “the
more specific of two conflicting provisions ‘comes closer to addressing the very
problem posed by the case at hand and is thus more deserving of credence.’” Perez-
Guzman, 835 F.3d at 1075 (9th Cir.) (quoting Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 183 (2012)). But the provisions at
issue here are each more specific than the other in different respects. Section
1158(a)(1) speaks narrowly to a specific form of immigration relief—asylum—but
applies broadly to all aliens. Meanwhile, § 1231(a)(5) addresses a specific subset of
aliens—those with reinstated removal orders—but mandates a broad denial of all
forms of relief. Further, the statute does not clearly indicate whether our specific-
general inquiry should focus on the type of relief or instead the class of affected
aliens. We therefore cannot say that Congress has unambiguously addressed the
8
It may seem odd that, under § 1231(b)(3)(A), the Attorney General must grant
withholding of removal to qualifying aliens, including to aliens subject to the all-
inclusive relief bar in § 1231(a)(5). The government attempts to square this
incongruity in the statutory scheme by offering its own version of what “relief”
should mean in the context of the reinstatement provision, arguing that withholding
of removal is a form of protection, not “relief.” We reject this proposed definition,
which is unmoored from the text of the statute. The mandatory withholding-of-
removal subsection need not be categorized under a different label (such as
“protection”) in order to make sense of the statutory scheme because withholding of
removal operates effectively as an exception to the reinstatement provision’s general
relief bar.
17
dilemma that arises when an illegal reentrant with a reinstated removal order seeks
asylum relief. See Cazun, 856 F.3d at 256 (3d Cir.) (observing the same issue with
respect to these provisions); Perez-Guzman, 835 F.3d at 1075-76 (9th Cir.) (same).
Third, the absence of any “reinstatement exception” within the asylum section
does not clearly indicate that asylum is insulated from the reach of the reinstatement
of removal provision. R-S-C argues that if Congress intended asylum eligibility to be
unavailable to a certain class of aliens (e.g., those with reinstated removal orders), it
would have included that exception in the asylum section where all the other
exceptions to asylum eligibility are located. 8 U.S.C. § 1158(a)(2) (exceptions to
asylum eligibility); see also § 1158(b)(2) (exceptions to when the Attorney General
may exercise his discretion to award asylum to eligible aliens). But this demands too
much of Congress. If Congress wants to preclude the availability of all relief for a
particular class of aliens, it should not be required to hunt through the INA and to
insert a specific exception for each form of relief (e.g., asylum, voluntary departure,
adjustment of status, cancellation of removal, etc.)—it should be sufficient to state
categorically, as it did here, that a specific subset of aliens are barred from receiving
any relief, which naturally encompasses the forms of relief set forth elsewhere in the
statute.
For these reasons, we cannot say that the statutory text itself resolves the
question presented. Congress clearly addressed the issues of asylum eligibility and
reinstated removal orders separately, but Congress has not “directly spoken to the
precise question at issue” here, Chevron, 467 U.S. at 842, which is whether an illegal
18
reentrant with a reinstated removal order may apply for asylum. Without any clear
answer from the statutory scheme, we turn to the Attorney General’s interpretation of
the INA to determine whether it is reasonable.
2. Chevron Step Two—The Attorney General’s Withholding-Only Rule Is
Entitled to Deference
At Chevron’s second step, we analyze whether “the implementing agency’s
construction is reasonable,” and if so we must “accept the agency’s construction of
the statute.” Brand X Internet Servs., 545 U.S. at 980. Before proceeding to analyze
that question, however, we address R-S-C’s threshold argument that the Attorney
General perceived the withholding-only rule as compelled by statute. We reject that
contention and further determine that the withholding-only rule is consistent with a
reasonable construction of the statutory scheme. Thus it is entitled to Chevron
deference.
i. Whether the Attorney General Perceived That the Withholding-
Only Rule Was Compelled By Statute
R-S-C and amici curiae argue that Chevron deference does not apply here
because the Attorney General failed to perceive any ambiguity in the statutory
scheme and instead viewed the withholding-only principle as compelled by Congress.
An agency receives Chevron deference only when it exercises delegated interpretive
authority—and an agency exercises no such authority when it treats a statute as
unambiguous. Am. Fed’n of Gov’t Emps., Local 1592 v. Fed. Labor Relations Auth.,
19
836 F.3d 1291, 1295-96 (10th Cir. 2016) (citation omitted); see also Negusie v.
Holder, 555 U.S. 511, 523 (2009) (concluding that the BIA did not “exercise[] its
Chevron discretion to interpret the statute in question” when the BIA adopted a rule it
believed was compelled by Supreme Court precedent interpreting a similar statute).
When promulgating the withholding-only regulations at issue in this case, the
Attorney General did not expressly acknowledge the tension between § 1158(a)(1)
and § 1231(a)(5). See Regulations Concerning the Convention Against Torture, 64
Fed. Reg. 8478 (Feb. 19, 1999); Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 Fed. Reg. 10,312 (Mar. 6, 1997).
But the Attorney General’s silence on this statutory interplay does not mean
the Attorney General missed the ambiguity. Without some affirmative indication in
the regulatory record that the Attorney General believed the withholding-only rule
was compelled by Congress, we will not assume as much. See Am. Fed’n of Gov’t
Emps., Local 1592, 836 F.3d at 1295-96 (remanding for reconsideration of an agency
rule when the agency explicitly stated that its interpretation was compelled by
statutory text). This is in accord with our sibling circuits which have held that the
regulatory record’s silence on this precise issue does not mean the Attorney General
believed his hands were tied by Congress. See Garcia, 856 F.3d at 38 n.10 (1st Cir.);
Perez-Guzman, 835 F.3d at 1079 n.8 (9th Cir.). Accordingly, we reject this threshold
argument and proceed to consider whether the withholding-only regulations warrant
Chevron deference.
20
ii. Whether the Withholding-Only Rule Receives Chevron Deference
The Attorney General’s regulations are consistent with a reasonable
interpretation of the statutory scheme. Thus, they are entitled to deference. At the
outset, we note that our analysis is colored by the Supreme Court’s instruction that
“judicial deference in the immigration context is of special importance” because of
the foreign-affairs implications inherent in immigration policy. Negusie, 555 U.S. at
517 (citation omitted). Whether to allow certain aliens to apply for asylum could
“affect our relations with the alien’s native country or its neighbors[,]” so we take
care to step cautiously in this field. Id. (quoting INS v. Aguirre-Aguirre, 526 U.S.
415, 425 (1999)) (alteration omitted). With this in mind, we conclude that the
Attorney General’s interpretation is permissible for several reasons.
First and foremost, it is reasonable for the Attorney General to conclude that
§ 1231(a)(5) means just what it says: that certain aliens are not eligible for “any
relief.” It is also reasonable to conclude that the reference to “any relief” naturally
means all forms of relief (other than mandatory withholding of removal), including
asylum. Given that the Attorney General’s interpretation aligns with this statutory
language, we are inclined to find that it is at least reasonable, even if it conceivably
conflicts with another part of the INA statute.
Second, although we determined that the specific-general canon of statutory
interpretation does not conclusively indicate which provision should take precedence,
it is not unreasonable for the Attorney General to decide that the reinstatement
21
subsection is more specific in the relevant respect. Section 1231(a)(5) addresses a
specific class of affected aliens (those subject to reinstatement of removal), whereas
§ 1158(a)(1) focuses on a particular form of relief (asylum). Because immigration
cases are presented to the Attorney General as individual persons, not forms of relief,
it is reasonable for the Attorney General to focus on the section of the INA that
carves out a subset of persons for special treatment, rather than another section that
establishes rules for a particular kind of relief that apply across the board.
Third, the Attorney General could reasonably conclude that the reinstatement
provision operates with stronger force than the asylum section. Section 1231(a)(5)
speaks in mandatory terms, requiring the Attorney General to deny relief to aliens
with reinstated removal orders. § 1231(a)(5) (“alien is not eligible and may not apply
for any relief” (emphasis added)). Conversely, § 1158(b) makes the award of asylum
subject to the discretion of the Attorney General. § 1158(b) (“the Attorney General
may grant asylum to an alien who has applied” (emphasis added)); see also Aguirre-
Aguirre, 526 U.S. at 420 (“[T]he decision whether asylum should be granted to an
eligible alien is committed to the Attorney General’s discretion.”). As one of our
sibling circuits has recognized in addressing this issue, “[i]t would be strange to find
that granting asylum is discretionary, but that the Attorney General must allow [a
petitioner with a reinstated removal order] to apply, even in the face of contradictory
text.” Cazun, 856 F.3d at 260 (3d Cir.).
Fourth, the asylum section expressly authorizes the Attorney General to
“establish additional limitations and conditions, consistent with [section 1158], under
22
which an alien shall be ineligible for asylum . . . .” § 1158(b)(2)(C) (emphasis
added). This delegation of authority means that Congress was prepared to accept
administrative dilution of the asylum guarantee in § 1158(a)(1). By contrast,
Congress did not water down the reinstatement mandate. Under § 1231(a)(5), the
Attorney General has no discretion to decide that some kinds of relief are immune
from the eligibility bar after a removal order is reinstated. Thus, the Attorney
General could have reasonably concluded that the reinstatement provision reflects a
stronger congressional command than the asylum section.9
Finally, the Attorney General’s determination reasonably furthers IIRIRA’s
purpose in strengthening the reinstatement provision. Before IIRIRA, the INA
subjected “only a limited class of illegal reentrants” to reinstatement of removal (e.g.,
“anarchists” and “subversives”), but “even those affected could seek some varieties
of discretionary relief[.]” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34 (2006)
(quotation marks, citation omitted). But in IRRIRA, Congress replaced this more
lenient regime with the current reinstatement provision, which “toed a harder line” by
9
R-S-C makes much of the caveat that the Attorney General’s “additional
limitations” must be “consistent with [section 1158],” which is the section
establishing asylum eligibility and rules for awarding asylum. § 1158(b)(2)(C)
(emphasis added). She argues that carving out a subset of aliens who may not apply
for asylum is not consistent with the § 1158(a)(1)’s guarantee of asylum eligibility
for “any alien . . . irrespective of such alien’s status[.]” We reject this reading of the
statutory text. It would mean that the Attorney General could not impose any
limitations on asylum eligibility because any regulation that “limits” eligibility
necessarily undermines the statutory guarantee that “any alien . . . irrespective of
such alien’s status” may apply for asylum. Thus, R-S-C’s preferred construction
would render § 1158(b)(2)(C) meaningless, disabling the Attorney General from
adopting further limitations while the statute clearly empowers him to do so.
23
applying its mandate to “all illegal reentrants . . .and [by] generally foreclos[ing]
discretionary relief from the terms of the reinstated order.” Id. at 35. This statutory
sequence suggests that Congress intended to fortify the effect of the reinstatement
provision, and the Attorney General’s interpretation is faithful to that statutory
purpose. See Cazun, 856 F.3d at 260 (3d Cir.); Garcia, 856 F.3d at 40 (1st Cir.).10
Despite the foregoing considerations, R-S-C offers two theories for why the
Attorney General’s interpretation is nevertheless unreasonable. First, she argues that
any ambiguity should be construed in compliance with international law. See Murray
v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (federal statutes
“ought never to be construed to violate the law of nations if any other possible
construction remains”). Article 34 of the Refugee Convention, to which the United
States acceded in 1968, provides that signatory nations “shall as far as possible
facilitate the assimilation and naturalization of refugees.” Protocol Relating to the
Status of Refugees, 19 U.S.T. 6223, 6267 (Nov. 6, 1968). Article 28 further provides
that signatories “shall issue to refugees . . . travel documents for the purpose of travel
outside their territory, unless compelling reasons of national security or public order
otherwise require[.]” Id. In the United States, asylum status complies with these
10
Legislative history confirms the point. Members of the House Judiciary
Committee were frustrated with the “cumbersome” procedures for removing illegal
aliens, and believed “[t]he asylum system [was being] abused by those who seek to
use it as a means of ‘backdoor’ immigration.” H.R. Rep. No. 104-469(I), at 107,
available at 1996 WL 168955. The Committee also expressed a special frustration
about illegal reentry and the lack of consequences for aliens who repeatedly cross the
border. Id. at 155. These statements add further support to the position reflected in
the withholding-only rule that Congress wanted the reinstatement provision to have
real teeth.
24
standards—it offers a path to citizenship and enables the alien to travel abroad
without fear of being turned away upon reentry. Withholding of removal, however,
does not provide such benefits. R-S-C thus contends that the Attorney General’s
withholding-only interpretation is out of step with international law, and so is
unreasonable.
But the conflict with international law is not so obvious. As the Supreme
Court has noted, Article 34’s assimilation principle is “precatory; it does not require
the implementing authority actually to grant asylum to all those who are eligible.”
INS v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987). Furthermore, Article 28’s travel
guarantee is qualified by an exception permitting signatories to restrict travel for
reasons of national security or public order. It is not unreasonable for the Attorney
General to conclude that strictly enforcing IIRIRA’s relief bar advances U.S. national
security or the public order. See Garcia 856 F.3d at 41-43 (1st Cir.) (finding that the
withholding-only rule did not violate the Refugee Convention).11
More fundamentally, the Attorney General’s denial of asylum eligibility flows
naturally enough from the statutory scheme, and it is conceivable that Congress was
willing to accept a collision with international law in order to address what it
perceived was a severe illegal-immigration problem. “Mindful that Congress has the
power to legislate beyond the limits posed by international law,” Serra v. Lappin, 600
11
It also warrants noting that the Refugee Convention’s nonrefoulement principle—
which prohibits the deportation of aliens to countries where the alien will experience
persecution—is given full effect by the Attorney General’s withholding-only rule.
25
F.3d 1191, 1198 (9th Cir. 2010) (internal quotation marks, citation omitted), it is not
unreasonable for the Attorney General to conclude that, for reasons related to
national security and public order, Congress wanted harsh consequences for illegal
reentrants regardless of any potential inconsistency with the Refugee Convention.
Second, R-S-C asks us to apply the immigration equivalent of the rule of lenity
to resolve this interpretive question in her favor. See Cardoza-Fonseca, 480 U.S. at
449 (referring to the “longstanding principle of construing any lingering ambiguities
in deportation statutes in favor of the alien” (emphasis added) (citations omitted)).
This principle of leniency is animated by the harsh penalty of deportation—it has
nothing to do with denying aliens extra benefits while lawfully present in the United
States. See INS v. Errico, 385 U.S. 214, 225 (1966) (“We resolve the doubts in favor
of [the alien] because deportation is a drastic measure and at times the equivalent of
banishment or exile[.] It is the forfeiture for misconduct of a residence in this
country.” (emphasis added) (internal citation omitted) (quoting Fong Haw Tan v.
Phelan, 333 U.S. 6, 10 (1948))). R-S-C does not face removal to another country
because her removal has been withheld pursuant to § 1231(b)(3)(A). Instead, she
faces the denial of the incremental benefits that accompany asylum status, including
the right to travel internationally, a pathway to citizenship, and derivative asylum
status for her children. Because these concerns do not trigger the leniency principle,
we do not fault the Attorney General for adopting a stricter approach which bars
asylum eligibility to illegal reentrants with reinstated removal orders—especially
26
when that rule otherwise seems to reflect a reasonable interpretation of the statutory
scheme.12
CONCLUSION
The INA does not clearly answer the question whether an illegal reentrant with
a reinstated removal order may apply for asylum. The Attorney General, however,
has reasonably interpreted the ambiguous statutory scheme in concluding that such an
alien is not eligible for asylum relief. We therefore defer to the Attorney General’s
interpretation, and DENY the petition for review.13
12
R-S-C raises additional less developed arguments in favor of her preferred
interpretation of the statutory scheme. We find them without merit, or otherwise not
sufficient to unsettle the reasonable interpretation adopted by the Attorney General.
13
We grant Petitioner's Motion for Leave to Proceed on Appeal Without Prepayment of
Costs or Fees (non-PLRA).
27