Roome Joseph v. Eric Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2393
R OOME I. JOSEPH,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals.
No. A79-286-874
A RGUED F EBRUARY 24, 2009—D ECIDED A UGUST 27, 2009
Before R OVNER, W OOD and S YKES, Circuit Judges.
W OOD , Circuit Judge. This is the second time that
Roome Joseph has appealed a decision of the Board of
Immigration Appeals (“BIA”) denying her motion to
reopen removal proceedings. The stakes are high for
Joseph, as in Pakistan she faces either a forced marriage
or the prospect of living as a single Christian woman
without familial support, a dangerous path in that country.
2 No. 08-2393
When we first saw this case, we granted Joseph’s petition
for review and remanded to the BIA because it failed
to consider Joseph’s argument that her parents’ threat of
a forced marriage in Pakistan constituted a changed
circumstance that could warrant reopening her removal
proceedings. Joseph v. Gonzales, 240 F. App’x 726, 728
(7th Cir. 2007).
On remand, the BIA denied Joseph’s motion to reopen.
In her new petition for review, Joseph claims that the
BIA again failed to consider her arguments, misconstrued
relevant legal standards, and misinterpreted 8 C.F.R.
§ 1003.2(c)(3)(ii), which creates the relevant exception
for the filing of an untimely motion to reopen. Because
the BIA (acting through a single member) erred in inter-
preting the governing regulation, we grant the petition
for review and remand.
I
The background facts of this case are detailed in our
earlier order, Joseph, 240 F. App’x at 726-27, but we sum-
marize them here. Joseph is a 28-year-old woman
who came to the United States from Pakistan with her
parents (Indrias and Catherine Joseph) and two brothers
(Rabbi and Ravi Joseph) in 1998. Her father went back to
Pakistan in 1999, but the rest of the family remained
in the United States, overstaying their visitor’s visas.
Catherine Joseph then applied for asylum in 2001 based
on the persecution that Christians face in Pakistan, but
her application and subsequent motions to reopen were
eventually denied by the BIA. Joseph’s mother and
No. 08-2393 3
two brothers returned to Pakistan in 2005, but Joseph
stayed in the United States. Joseph’s family have since
fled from Pakistan, first to Sri Lanka and then to Nepal.
Joseph’s relationship with her family is strained at
best. Dating back to 2000, Joseph’s younger brother
Ravi verbally and physically abused her because of her
adoption of American social norms for women and her
eventual marriage in 2004 to an American, Darrin
Affrunti. (Joseph has since divorced.) Ignoring the U.S.
marriage, Joseph’s father informed her that he had ar-
ranged for her to marry a Pakistani man. Joseph believes
that if she refuses, her family would disown her, and she
would be forced to live as a single Christian woman in
Pakistan. To establish what this would mean for her,
Joseph submitted evidence that Christian women in
Pakistan who are abandoned by their families in this
way often face a life of prostitution, violence, and death.
On June 26, 2006, Joseph filed her own motion to re-
open. Ordinarily, such a motion “must be filed no
later than 90 days after the date on which the final ad-
ministrative decision was rendered in the proceeding
sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). Joseph
admitted that her motion was untimely, but she believes
that she can demonstrate “changed circumstances” that
exempt her from the time requirements. 8 C.F.R.
§ 1003.2(c)(3)(ii). The BIA denied Joseph’s motion, but
we granted her petition for review and remanded to the
BIA because it failed to consider her argument that her
parents’ threat of forced marriage constituted a changed
circumstance in Pakistan. On remand, the BIA again
4 No. 08-2393
denied Joseph’s motion to reopen, and Joseph again
petitions this court for review.
II
We must first address the jurisdictional arguments
raised by the Government. This court has jurisdiction
over Joseph’s petition for review of a BIA discretionary
decision under 8 U.S.C. § 1252(a)(1) only if Joseph raises
constitutional issues or questions of law; it lacks juris-
diction as a result of 8 U.S.C. § 1252(a)(2)(B)(ii) if Joseph
does not raise such issues. Kucana v. Mukasey, 533 F.3d 534,
538 (7th Cir. 2008), cert. granted, 129 S. Ct. 2075 (2009).
(Prior to Kucana, we reviewed many of the BIA’s discre-
tionary decisions for an abuse of discretion.) Both sides
agree that there are no constitutional issues in this case,
but the parties disagree about the critical question
whether Joseph has raised issues of law. In Huang v.
Mukasey, 534 F.3d 618 (7th Cir. 2008), we outlined what
constitutes a legal issue:
[A]ll the court can decide is whether the Board com-
mitted an error of law. That will usually be a misinter-
pretation of a statute, regulation, or constitutional
provision. But it could also be a misreading of the
Board’s own precedent, or the Board’s use of the
wrong legal standard, or simply a failure to exercise
discretion or to consider factors acknowledged to
be material to such an exercise.
Id. at 620 (citations omitted). Even if Joseph can assert an
error of law, she faces one additional hurdle. The BIA’s
No. 08-2393 5
decision relied on two grounds for the denial of Joseph’s
motion to reopen: “she has not shown changed circum-
stances in Pakistan or that her application has a likeli-
hood of being granted, if proceedings are reopened.” The
second ground represents the BIA’s conclusion that
Joseph has not put forward a prima facie case that her
asylum case would succeed. See Awad v. Ashcroft, 328
F.3d 336, 341 (7th Cir. 2003). If there are two alternative
grounds for denying relief, and we lack jurisdiction to
review one, then we lack jurisdiction over the whole
case. See Ekasinta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir.
2005). Thus, Joseph must assert errors of law that infect
both grounds on which the BIA relied in order for this
court to retain jurisdiction.
We conclude that she has done so. First, she argues that
the BIA did not exercise its discretion in examining
her arguments. Second, Joseph contends that the BIA
misconstrued both the governing standard of evidence
(well-founded fear) and the applicable doctrine (internal
relocation) that justified its decision. Third, she claims
that the BIA misinterpreted the term “changed circum-
stances” in 8 C.F.R. § 1003.2(c)(3)(ii). These are all legal
issues that structure the BIA’s inquiry and thus affect
both whether she has shown changed circumstances and
whether she has presented a prima facie case. We have
jurisdiction to review these alleged legal errors.
III
We originally remanded this case to the BIA because
the Board abused its discretion by not adequately con-
6 No. 08-2393
sidering Joseph’s arguments about changed circumstances,
specifically the fact that Joseph’s family had arranged
a marriage for her in Pakistan. Joseph, 240 F. App’x at
728. Joseph contends that on remand the BIA did not
exercise the discretion this court ordered it to. The BIA
did, however, at least address Joseph’s argument on
remand, reasoning that conditions in Pakistan had not
changed because “families have pressured their children
to marry for a very long period of time.” Without com-
menting on the soundness of this position, we accept
that the BIA exercised its discretion in examining
Joseph’s argument. This issue is thus not a ground on
which she may rely at this stage.
For her second argument, Joseph focuses on one sen-
tence in the BIA’s decision: “It is not clear that an
educated Christian woman, who has lived in the United
States, could not live independently in Pakistan on her
own, if she chose to do so.” Joseph finds two implicit
legal errors in this sentence. First, she seizes on the word
“clear,” believing that the BIA was referring to the “clear
and convincing” standard of proof, rather than the re-
quired “well-founded fear” standard. INS v. Cardoza-
Fonseca, 480 U.S. 421, 423-24 (1987). Second, she
believes that the BIA may have subtly been referencing
the internal relocation doctrine, which holds that if an
asylum applicant could reasonably relocate to another
part of the country and avoid persecution, she does not
have a well-founded fear. 8 C.F.R. §§ 208.13(b)(2)(ii), (b)(3);
Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008)
(noting that relocation must be both possible and reason-
able). Joseph asserts that the BIA’s analysis was incom-
No. 08-2393 7
plete, as it did not consider whether relocation would
be reasonable.
These critiques read too much into that one sentence.
The BIA’s use of the word “clear” is best read as a
common (and overused) turn of phrase, rather than as a
truncated reference to the wrong standard of proof. With
regard to the internal relocation doctrine, the BIA’s
opinion does not even allude to it or to its elements;
the more logical explanation is that the Board was
merely finding that Joseph had not met her burden in
establishing that she faced danger in returning to
Pakistan, given her educational status. Thus, we find
no legal error here either.
Finally, Joseph argues that the BIA misinterpreted the
regulatory provisions governing her untimely motion to
reopen. The regulatory language states that the time
limits do not apply to a motion to reopen to
apply or reapply for asylum or withholding of deporta-
tion based on changed circumstances arising in the
country of nationality or in the country to which
deportation has been ordered, if such evidence is
material and was not available and could not have
been discovered or presented at the previous hearing.
8 C.F.R. § 1003.2(c)(3)(ii). The single member of the BIA to
whom Joseph’s case was referred interpreted the regula-
tion to cover only “a dramatic change in the political,
religious or social situation” and to exclude so-called
“personal circumstances.” In so doing, the Board member
relied on Raza v. Gonzales, 484 F.3d 125 (1st Cir. 2007), and
Mabasa v. Gonzales, 455 F.3d 740 (7th Cir. 2006). He found
8 No. 08-2393
no evidence of dramatic change in Pakistan and, after
finding that Joseph’s fear of arranged marriage was
something entirely personal to her, concluded that this
was not a proper ground for relief.
The Government argues that this regulatory interpreta-
tion is entitled to Chevron deference. Chevron U.S.A. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984). Chevron, however, deals only with the question
whether an agency acts within its authority when it
formulates a policy and issues a regulation. Id. And no
one is arguing that § 1003.2(c)(3)(ii) itself represents an
impermissible exercise of the Attorney General’s power.
The question before us instead is what deference is ap-
propriate for an interpretation of that regulation. To
answer that question, we turn to Auer v. Robbins, 519 U.S.
452 (1997), in which the Court discussed how much
deference is due to an agency’s interpretation of its own
regulations. See also Coeur Alaska, Inc. v. Southeast Alaska
Conservation Council, 129 S. Ct. 2458, 2468-70 (2009) (follow-
ing Auer); Gonzales v. Oregon, 546 U.S. 243, 257 (2006)
(holding that Auer deference is not due to a regulation
that “does little more than restate the terms of the
statute itself”). In Auer, the Court held that an agency’s
interpretation of its own regulation “is, under our juris-
prudence, controlling unless plainly erroneous or incon-
sistent with the regulation.” 519 U.S. at 461 (internal
quotation marks omitted). We note as well that deference
to the Executive Branch is “especially appropriate in
the immigration context where officials exercise
especially sensitive political functions that implicate
No. 08-2393 9
questions of foreign relations.” INS v. Aguirre-Aguirre,
526 U.S. 415, 425 (1999) (internal quotation marks omitted).
Even when we are talking about interpretations of
statutes, not everything that an agency produces is
entitled to the strongest form of deference. See U.S.
Freightways Corp. v. Commissioner of Internal Revenue, 270
F.3d 1137, 1141 (7th Cir. 2001) (“deference to agency
positions is not an all-or-nothing proposition; more
informal agency statements and positions receive a
more flexible respect”). Accordingly, in United States v.
Mead Corp., 533 U.S. 218 (2001), the Court drew a dis-
tinction between statements from an agency designed
to carry “the force of law,” and less formal actions. Id.
at 226-27.
Mead dealt with ruling letters from agents of the U.S.
Customs service on the topic of tariff classification. These
letters may be issued by any of the 46 port-of-entry Cus-
toms Offices. They contain varying levels of reasoning
and are binding only on the party involved in the trans-
action at issue and not third parties. Furthermore, they
are not subject to notice and comment; they need only to
be made available for public inspection (rather than
published); and they are usually subject to modification
without notice. Id. at 223. The Supreme Court found
that Congress nowhere intended the ruling letters to have
the force of law, and that Customs had notice-and-com-
ment rulemaking power that it could use when it
wanted to adopt the kind of policy that would be
entitled to Chevron deference. Nevertheless, the Court
vacated and remanded because the letters were entitled
10 No. 08-2393
to deference under Skidmore v. Swift, 323 U.S. 134, 140
(1944). See Mead, 533 U.S. at 234 (“Chevron did nothing
to eliminate Skidmore’s holding that an agency’s inter-
pretation may merit some deference whatever its form,
given the ‘specialized experience and broader investiga-
tions and information’ available to the agency, and
given the value of uniformity in its administrative
and judicial understandings of what a national law re-
quires”) (internal citation omitted). Thus, deference to a
ruling letter is appropriate based on “the thoroughness
evident in its consideration, the validity of its reasoning,
its consistency with earlier and later pronouncements,
and all those factors which give it power to persuade, if
lacking power to control.” Skidmore, 323 U.S. at 140.
Just as varying degrees of deference are appropriate
for regulations or other forms of guidance issued by
agencies, so too are different levels of deference appro-
priate for interpretations of regulations offered by agen-
cies. When the agency speaks formally, Auer holds that the
agency’s interpretation is controlling unless it is plainly
erroneous or inconsistent with the regulation. An off-the-
cuff response to an interpretive question from the first
person who answers the telephone would be quite a
different matter. Here, we have a decision by a single
Board member, which puts us in a middle ground between
the two poles we have just described. Just like the ruling
letters in Mead, it is unpublished and nonprecedential.
By the BIA’s own regulations, a single member lacks the
power to create a binding precedent. See 8 C.F.R.
§ 1003.1(g) (noting the conditions, not present here, when
a decision can serve as a precedent).
No. 08-2393 11
The Board uses three-member panels to provide
precedential decisions on important issues, including
the following:
(i) The need to settle inconsistencies among the
rulings of different immigration judges;
(ii) The need to establish a precedent construing the
meaning of laws, regulations, or procedures;
(iii) The need to review a decision by an immigration
judge or the Service that is not in conformity with
the law or with applicable precedents;
(iv) The need to resolve a case or controversy of
major national import;
(v) The need to review a clearly erroneous factual
determination by an immigration judge; or
(vi) The need to reverse the decision of an immigra-
tion judge or the Service, other than a reversal
under § 1003.1(e)(5).
8 C.F.R. § 1003.1(e)(6). The Board takes advantage of the
streamlined procedures found in 8 C.F.R. §§ 1003.1(e)(4),
(e)(5) for routine cases that can be processed quickly. As
the regulation explains, “[a]n order affirming without
opinion, issued under authority of this provision, shall
not include further explanation or reasoning. Such an
order approves the result reached in the decision below;
it does not necessarily imply approval of all of the rea-
soning of that decision, but does signify the Board’s
conclusion that any errors in the decision of the immigra-
tion judge or the Service were harmless or nonmaterial.”
12 No. 08-2393
8 C.F.R. § 1003.1(e)(4)(ii). Cases resolved with a brief
order by the single member are similarly nonprecedential.
See 8 C.F.R. §§ 1003.1(e)(5), (e)(6)(ii) (indicating the need
for three-person panel if a precedent must be established).
We addressed one question about the degree of deference
due to single-member decisions in Gutnik v. Gonzales,
469 F.3d 683 (7th Cir. 2006). There, we held that these
decisions should receive Chevron deference if they
provide some reasoning to which this court can defer.
Id. at 690. Most of our sister circuits have been unwilling
to go that far. See Garcia-Quintero v. Gonzales, 455 F.3d
1006, 1012-13 (9th Cir. 2006) (Skidmore deference only for
single-member decisions); Quinchia v. United States Att’y
Gen., 537 F.3d 1312, 1314 (11th Cir. 2008) (holding that
Chevron deference does not apply to “a non-precedential
decision issued by a single member of the BIA that does
not rely on existing BIA or federal court precedent”);
Rotimi v. Gonzales, 473 F.3d 55, 57 (2d Cir. 2007) (holding
that “[b]ecause there is no indication that the BIA’s
nonprecedential single-member decision was ‘promul-
gated’ under [the BIA’s] authority to ‘make rules
carrying the force of law,’ we do not accord it Chevron
deference”) (citation omitted) (internal quotation marks
omitted). Other circuits have identified the question but
declined to rule on it. See Godinez-Arroyo v. Mukasey,
540 F.3d 848, 850-51 (8th Cir. 2008); Li Fang Lin v. Mukasey,
517 F.3d 685, 695 (4th Cir. 2008); Smriko v. Ashcroft, 387
F.3d 279, 289 n.6 (3d Cir. 2004). We need not resolve that
conflict here, however, because Gutnik was concerned
with the conventional Chevron question about the BIA’s
interpretation of the Immigration and Nationality Act
No. 08-2393 13
(“INA”) itself. 469 F.3d at 689. As we have already
noted, we are concerned with a different question:
whether its interpretation of an uncontested regulation
was sustainable.
With respect to that question, we turn back to Auer.
For the case before us, the question under Auer is
whether the individual BIA member has interpreted the
regulation in a way that is inconsistent with its language
or that is plainly erroneous. See Christensen v. Harris
County, 529 U.S. 576, 588 (2000) (“deference is war-
ranted only when the language of the regulation is am-
biguous”); Bahramizadeh v. United States INS, 717 F.2d 1170,
1173 (7th Cir. 1983) (“An agency may not interpret
its regulations in a manner so as to nullify the effective
intent or wording of a regulation.”).
The regulation on which Joseph’s case turns requires
“changed circumstances arising in the country of national-
ity.” 8 C.F.R. § 1003.2(c)(3)(ii). Nowhere does it signal a
narrower requirement, such as the “dramatic change”
the single member of the Board decided to require.1
The plain language of the regulation does not require
the asylum applicant to point to some kind of upheaval,
such as the ascension of Pervez Musharraf to power in
1999 or the assassination of Benazir Bhutto in Decem-
ber 2007, in order to show changed circumstances. The
1
We express no opinion on the question whether, if the
Board were to issue a regulation with the narrower language
using its notice-and-comment procedures, such a regulation
would be consistent with the INA.
14 No. 08-2393
only requirements are (1) that there be changed circum-
stances, (2) that the circumstances be material and
(3) that the evidence showing changed circumstances “was
not available and could not have been discovered or
presented at the previous hearing.” Id. These last two
requirements of materiality and non-availability weed
out the possibility that applicants will bring frivolous
claims or will fail to be diligent in gathering relevant
information earlier in the process. We note as well that
neither of the court of appeals decisions on which the
Board member relied, Raza and Mabasa, adopted a “dra-
matic change” standard. Raza had nothing to say
on this point, and Mabasa held only that conditions in
Zimbabwe had not changed at all over the relevant
time. 455 F.3d at 744.
The plain language of the regulation also does not
restrict the concept of “changed circumstances” to some
kind of broad social or political change in the country,
such as a new governing party, as opposed to a more
personal or local change.2 The BIA and the Government
rely on Cheng Chen v. Gonzales, 498 F.3d 758 (7th Cir.
2007), to support their contrary contention. But Cheng
Chen dealt with an entirely different issue: whether an
applicant can claim changed circumstances in the
country of deportation based on his own actions in the
2
We similarly express no opinion on the question whether an
appropriate regulation from the Board could, consistently
with the statute, restrict the concept of changed circumstances
to those occurring more generally in the country of nationality.
No. 08-2393 15
United States. In that case, a Chinese man who had been
deported to China did not leave the United States but
instead married and fathered two children here. He
then tried to use this as the basis for claiming changed
circumstances in China, asserting that he would be
subject to forcible sterilization for violating China’s one-
child policy were he to return.
This court rejected his argument because the changed
circumstances did not arise in China but instead arose
from his actions in the United States. It was irrelevant
that his claim involved family affairs or “personal cir-
cumstances.” But it is easy to imagine a different
scenario under which the BIA would have been required
to consider his argument. For example, suppose China
had no limitation on the number of children one could
have and Chen had fathered two children here in the
United States. If, after he is ordered deported, China
suddenly institutes a one-child policy and threatens
forced sterilization for those who have not complied, no
matter where in the world their children were born,
circumstances in the country of nationality would
indeed have changed. This is so even though the policy
addresses a supposedly “personal” circumstance. The
difference is that the change would have arisen in
China, not in the United States.
The consideration animating the decision in Cheng Chen
is that “[i]t makes no sense to allow an alien who
manages to elude capture by the immigration
authorities for years after he has been ordered to leave
the country, and has exhausted all his legal remedies
16 No. 08-2393
against removal, to use this interval of unauthorized
presence in the United States to manufacture a case for
asylum.” Id. at 760. This is a worthwhile concern, but
it does not apply to Joseph. She has in no way manu-
factured her case for changed circumstances; she
alleges instead that she either faces a would-be suitor
who might abduct her and force her to marry in Pakistan,
a hostile family that might return to Pakistan to abduct
her and physically abuse her, or a country in which
she faces severe harassment—possibly rising to the level
of persecution to which the authorities would turn a
blind eye—as a single Christian woman without familial
support. None of these is a manufactured circumstance,
and all arise in Pakistan.
* * *
The BIA committed legal error in adopting an overly
narrow interpretation of 8 C.F.R. § 1003.2(c)(3)(ii) that
runs counter to the plain language of the regulation. We
therefore G RANT the petition for review and R EMAND to
the BIA so that it might consider all of Joseph’s argu-
ments about the changed circumstances she faces in
Pakistan.
8-27-09