Rsf v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RSF, No. 17-70533
Petitioner, Agency No. A089-097-721
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 14, 2019
Submission Deferred February 15, 2019
Resubmitted December 12, 2019
San Francisco, California
Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
RSF, a citizen and native of El Salvador, seeks review of the Board of
Immigration Appeals (“BIA”) finding that she is ineligible to apply for asylum
under Department of Homeland Security (“DHS”) regulations. Because the parties
are familiar with the facts, we do not repeat them here. We have jurisdiction under
8 U.S.C. § 1252(a), and we deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We are bound by our decision in Perez-Guzman v. Lynch, 835 F.3d 1066
(9th Cir. 2016). In Perez-Guzman, this court concluded DHS regulations were a
reasonable interpretation of asylum statute § 1158(a)(1) and reinstatement bar
§ 1231(a)(5) under Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842 (1984), where those regulations prevented individuals
subject to reinstated removal orders from applying for asylum but permitted them
to seek withholding. 835 F.3d at 1073-82.
RSF contends Perez-Guzman does not control because courts are not bound
by prior decisions that did not consider the issue presented in a later case.
However, a Ninth Circuit “panel is not free to disregard the decision of another
[Ninth Circuit] panel . . . simply because . . . the arguments have been
characterized differently or more persuasively by a new litigant.” United States v.
Ramos-Medina, 706 F.3d 939 (9th Cir. 2013). With one exception, RSF’s appeal
does not present a different issue than those raised in Perez-Guzman—it presents
different arguments regarding the same issue.
RSF's surviving challenge is that DHS regulations unreasonably limit the
availability of § 1158(a)(2)(D) “to lawbreakers only.” When reviewing a legal
question involving the interpretation of the Immigration Nationality Act (“INA”)
and its corresponding regulations, we follow the deferential procedures prescribed
in Chevron. Valadez-Munoz v. Holder, 623 F.3d 1304, 1308 (9th Cir. 2010). Under
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Chevron, we first examine the statute to determine whether Congress has directly
spoken to the question at issue. Valencia v. Lynch, 811 F.3d 1211, 1214 (9th Cir.
2016) (citing Chevron, 467 U.S. at 842-43). If the statutory provision is silent or
ambiguous, we then consider whether the agency’s interpretation is “‘based on a
permissible construction of the statute.’” Id. at 1215 (quoting Chevron, 467 U.S. at
843). The court defers to the agency’s interpretation so long as it is not “‘arbitrary,
capricious, or manifestly contrary to the statute.’” Garcia v. Holder, 659 F.3d
1261, 1266 (9th Cir. 2011) (quoting Chevron, 467 U.S. at 844).
RSF fails to show that limiting the application of § 1158(a)(2)(D) renders
the DHS regulations unreasonable under Chevron’s second step. There are
multiple categories of asylum applicants who could take advantage of the changed
circumstances exception within § 1158(a)(2)(D) other than those who ignored
removal orders, such as previously removed noncitizens who apply for asylum
without entering the United States.
PETITION DENIED.
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