Yoselin Martinez Cazun v. Attorney General United State , 856 F.3d 249 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-3374
_____________
YOSELIN LINET MARTINEZ CAZUN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No.: A206-498-210)
Immigration Judge: Honorable Walter A. Durling
Argued on September 22, 2016
Before: MCKEE, Chief Judge *, HARDIMAN and
RENDELL, Circuit Judges
(Opinion filed: May 2, 2017)
Matthew J. Archambeault
Corpuz & Archambeault
1420 Walnut Street
Suite 1188
Philadelphia, PA 19102
Charles Roth
Keren Zwick (ARGUED)
National Immigrant Justice Center
208 South LaSalle Street
Suite 1300
Chicago, IL 60604
Counsel for Petitioner
Jefferson B. Sessions III
United States Attorney General
Benjamin C. Mizer
Principal Deputy Assistant Attorney General
Shelley R. Goad
Assistant Director
Laura Halliday Hickein
Thomas W. Hussey
Carmel A. Morgan (ARGUED)
*Judge McKee was Chief Judge at the time this appeal was
argued. Judge McKee completed his term as Chief Judge on
September 30, 2016.
2
Civil Division
United States Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Rebecca A. Sharpless
Caroline McGee, Law Student
Immigration Clinic
University of Miami School Law
1311 Miller Drive, Suite E257
Coral Gables, FL 33146
Dree K. Collopy
Benach Collopy, LLP
1333 H Street, NW
Suite 900 West
Washington, DC 20005
Counsel Amicus for Petitioner
3
OPINION
RENDELL, Circuit Judge:
Yoselin Linet Martinez Cazun, a native and citizen of
Guatemala, entered the United States illegally in 2014. She
was detained and removed under an expedited removal order.
Later that year, she attempted to re-enter the United States,
was detained again, and her previous removal order was
reinstated. When she attempted to apply for asylum, the
Board of Immigration Appeals (“BIA”) held that she was
statutorily ineligible to apply because her previous order of
removal had been reinstated. Cazun appeals that ruling.
This case thus presents a question that many of our
sister circuits have already answered in the negative: may an
alien subject to a reinstated removal order apply for asylum?
Because we find that Congress has not spoken clearly on the
issue in the relevant statute, we will give Chevron deference
to the agency’s reasonable statutory interpretation that aliens
subject to reinstated removal orders are ineligible to apply for
asylum.
I. Background
A. Factual Background
In March 2014, Cazun fled her native Guatemala
following threats against her life by unknown persons. Upon
arrival in the United States, Cazun was detained by
4
immigration authorities. Because Cazun expressed a fear of
returning to Guatemala, an asylum officer interviewed her.
The asylum officer made a negative credible fear
determination, and an Immigration Judge (“IJ”) affirmed that
decision. Thus, an expedited order of removal was issued to
Cazun, and she returned to Guatemala.
Upon Cazun’s return to Guatemala, her circumstances
grew more dire. The head of a drug trafficking gang
threatened, tortured, and sexually assaulted her.1 To escape,
Cazun fled again to the United States, this time with her two-
year-old son. On her attempted re-entry, Cazun was detained
by Border Patrol.
After determining that Cazun had already been
removed from the United States once before, the Department
of Homeland Security (“DHS”) notified Cazun that it
intended to reinstate her previously entered removal order.
Through this reinstatement process, the DHS would simply
re-execute her previous removal order and deport her rather
than initiating an entirely new removal process. But before
deportation, Cazun expressed fear of returning to Guatemala,
so she was interviewed by an asylum officer.2 The asylum
1
The drug trafficker apparently targeted Cazun because
of a debt owed him by the father of Cazun’s child. Cazun was
not married to the father of her child, but she lived with him.
2
Although an asylum officer conducted the interview,
the only purpose of the interview was to determine Cazun’s
eligibility for withholding of removal and protection under
the Convention Against Torture, not her eligibility for
asylum.
5
officer made a negative reasonable fear determination, and an
IJ affirmed that decision.
Subsequently, but still before deportation, Cazun
consulted counsel and urged that she had been unable to
reveal the full details of her suffering in her previous
interview due to the psychological trauma she had endured in
Guatemala. Consequently, she obtained a new interview with
an asylum officer. At this interview, Cazun described being
sexually assaulted, tortured, and facing threats against her life
and the life of her son. The asylum officer concluded that
Cazun’s testimony was credible and that it established a
reasonable fear of persecution. But because Cazun’s previous
removal order had been reinstated, she was placed in hearings
before an IJ to determine her eligibility for withholding of
removal and Convention Against Torture (CAT) protection
only.
The IJ granted Cazun withholding of removal and
protection under the regulations implementing obligations
under the CAT, but would not consider Cazun’s asylum
request.3 He stated that under current statutes and regulations,
3
Aliens may prefer to seek asylum rather than
withholding of removal or CAT protection for several
reasons. First, unlike other forms of relief, asylum provides a
pathway to lawful permanent resident status and, ultimately,
citizenship. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428
n.6 (1987). Second, withholding of removal and CAT
protection only prevent removal of an alien to the specific
country from which she fled; asylum prevents removal from
the United States altogether. See id. Third, withholding of
removal status comes with several restrictions, including
6
Cazun was ineligible to apply for asylum due to her reinstated
removal order. 4
Cazun appealed to the BIA, which agreed with the IJ
that Cazun was ineligible for asylum. The BIA based its
decision on 8 U.S.C. § 1231(a)(5), which states that aliens
like Cazun who are subject to a reinstated removal order are
“not eligible and may not apply for any relief under [8 U.S.C.
Ch. 12].” A.R. 3. The BIA further cited applicable
regulations of the Attorney General that allow “an alien
fearing persecution to apply for withholding of removal only.”
A.R. 3. (emphasis added) (citing 8 C.F.R. §§ 1208.31(e),
1208.31(g)(2); 1241.8(e)). Cazun timely appealed the BIA’s
ruling to this Court, urging that she is eligible for asylum
pursuant to the asylum provision, and it should apply
notwithstanding her reinstated removal order.
potential limitations on the ability to work and travel
internationally. 8 C.F.R. § 274a.12(a)(10); 8 C.F.R. § 241.7.
Finally, the standard for asserting a successful asylum
claim is less demanding than the standard for withholding of
removal or CAT protection. Compare Cardoza-Fonseca, 480
U.S. at 430–32 (“well-founded fear” standard applies to
asylum applications), with 8. C.F.R. § 1208.16(b)(1)(iii)
(applicant for withholding of removal must prove she “more
likely than not” will suffer harm if returned to native
country), and 8 C.F.R. § 1208.16(c)(2) (applicant for CAT
protection must establish she “more likely than not” would be
tortured if returned to native country).
4
Cazun’s young son, who was not subject to a
reinstated removal order, was granted asylum.
7
B. Statutory Background
The issue presented by Cazun’s appeal arises from two
separate but related statutes: 8 U.S.C. § 1158, the asylum
statute, and 8 U.S.C. § 1231(a)(5), the reinstatement bar. 5
i. Asylum Statute
The initial version of § 1158 was enacted by the
Refugee Act of 1980, affording “an alien” the right to apply
for asylum “irrespective of immigration status.” See Refugee
Act of 1980, Pub. L. No. 96-212, § 208 (codified as amended
at § 1158). “The purpose of the [Act] . . . was ‘to provide a
permanent and systematic procedure for the admission to this
country of refugees of special humanitarian concern to the
United States.’” Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir.
1996) (quoting Pub. L. No. 96-212, tit. I, § 101(b), 94 Stat.
102 (1980)).
In 1996, Congress altered the statutory scheme, 6
enacting the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, Div. C,
110 Stat. 3009. IIRIRA preserved and in many ways
replicated the initial version of § 1158. In its updated form, §
1158(a)(1) instructed that “[a]ny alien who is physically
5
For ease of reference, unless otherwise noted, statutory
sections referenced in the remainder of this opinion come
from Title 8 of the United States Code.
6
Congress had previously amended the statute in 1990
to forbid individuals convicted of aggravated felonies from
being granted asylum. See Immigration Act of 1990, Pub. L.
No. 101-649, § 515.
8
present in the United States . . . irrespective of such alien’s
status, may apply for asylum in accordance with this section.”
Despite this seemingly broad guarantee, Congress
carved out exceptions for several classes of aliens making
them statutorily ineligible to apply for asylum: those who
could be safely resettled into another country, see §
1158(a)(2)(A), those who failed to timely apply, see §
1158(a)(2)(B), and those previously denied asylum, see §
1158(a)(2)(C). However, even in the face of these exceptions,
§ 1158(a)(2)(D) created an exception to the exceptions:
despite a previous denial of asylum or tardy asylum
application, an alien could apply if she could demonstrate
“changed circumstances which materially affect [her]
eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application.”
ii. Reinstatement
IIRIRA also altered the effect of a previously entered
removal order. Before IIRIRA, previous removal orders were
not reinstated against aliens who re-entered the country.
Instead, these aliens were placed in the same removal
proceedings as other aliens who had not previously been
removed. Reinstatement of a previous removal order was
reserved for only a subset of individuals. See Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 33–35 (2006).
But in IIRIRA, Congress hardened the effect of a
reinstated removal order. As the Supreme Court noted, in
enacting this provision Congress “toed a harder line” with
respect to reinstatement. Id. at 34. The Act broadened the
applicability of reinstatement, and it “explicitly insulate[d]
9
the removal orders from review, and generally foreclose[d]
discretionary relief from the terms of the reinstated order.” Id.
at 34–35.
The new reinstatement provision reads:
If the Attorney General finds that an alien has
reentered the United States illegally after having been
removed or having departed voluntarily, under an
order of removal, the prior order of removal is
reinstated from its original date and is not subject to
being reopened or reviewed, the alien is not eligible
and may not apply for any relief under this chapter,
and the alien shall be removed under the prior order at
any time after reentry.
§ 1231(a)(5) (emphasis added). “[T]his chapter” refers to
Chapter 12 of Title 8 of the U.S. Code, which contains both
the asylum statute and the reinstatement bar.
iii. Attorney General’s Interpretation of the
Statutory Scheme
Three years after Congress enacted IIRIRA, the
Attorney General promulgated 8 C.F.R. § 1208.31(e),7
instructing that “[i]f an asylum officer determines that an
7
Though the regulation was originally promulgated as 8
C.F.R. § 208.31(e), it was recodified in 2003 as 8 C.F.R. §
1208.31(e). Aliens and Nationality; Homeland Security;
Reorganization of Regulations, 68 Fed. Reg. 9824 (Feb. 28,
2003). We use this updated numbering throughout the opinion
for consistency.
10
alien [subject to a reinstated removal order] has a reasonable
fear of persecution or torture, the officer shall so inform the
alien and issue a . . . [r]eferral to [an] Immigration Judge, for
full consideration of the request for withholding of removal
only.” (emphasis added).
The Attorney General clarified that under the
regulations aliens subject to reinstated removal orders were
“ineligible for asylum” but “may . . . be entitled to
withholding of removal” or CAT protection. Regulations
Concerning the Convention Against Torture, 64 Fed. Reg.
8478, 8485 (Feb. 19, 1999). This distinction between
withholding of removal and asylum for those subject to
reinstated removal orders “allow[ed] for the fair and
expeditious resolution of . . . claims without unduly
disrupting the streamlined removal process applicable to . . .
aliens [subject to reinstated removal orders].” Id. at 8479.8 In
brief, the Attorney General determined that the statutory
scheme forbade aliens subject to reinstated removal orders
from applying for asylum, but allowed such aliens
withholding of removal. The BIA relied on this interpretation
in deciding Cazun’s case.
8
The Attorney General identified § 1158 as one of the
statutes giving the agency authority to promulgate regulations
to govern asylum and withholding procedures. Id. at 8487.
11
II. Discussion9
The issue before us is whether an alien whose removal
order is reinstated is statutorily ineligible to apply for asylum.
We must reconcile two apparently conflicting provisions of
the INA, both enacted on the same day. On the one hand, §
1158(a)(1) allows “any alien” “irrespective of such alien’s
status” to apply for asylum. On the other hand, § 1231(a)(5)
instructs that an alien subject to a reinstated removal order “is
not eligible and may not apply for any relief under this
chapter.”
We are not the first court to consider the effect of a
reinstated removal order. To date, four Courts of Appeals
have addressed this question. Each has concluded that
individuals subject to reinstated removal orders may not
apply for asylum, though the courts have parted ways in their
rationales.10 Three of these courts have found the
9
We have jurisdiction pursuant to § 1252. The Board’s
jurisdiction arose under 8 C.F.R. §§ 1003.1(b)(3) & 208.31(e)
(2014).
10
Perez-Guzman v. Lynch, 835 F.3d 1066, 1082 (9th Cir.
2016) (statutory scheme was ambiguous and Chevron
deference was warranted because the Attorney General’s
interpretation was reasonable); Jiminez-Morales v. U.S. Att’y
Gen., 821 F.3d 1307, 1310 (11th Cir. 2016) (plain text of §
1231(a)(5) supported conclusion that aliens subject to
reinstated removal orders cannot apply for asylum); Ramirez-
Mejia v. Lynch, 794 F.3d 485, 491 (5th Cir. 2015), reh’g en
banc denied, 813 F.3d 240 (5th Cir. 2016) (“Section
1231(a)(5)’s plain language, relevant regulations, and
analogous case law all compel the conclusion that aliens
12
reinstatement bar clear on its face.11 But these courts
“mention[] [the asylum provision] only in passing, or not at
all.”12 Only the Ninth Circuit explicitly considered the
interplay between the asylum provision and the reinstatement
bar. Following the analytic path set forth in Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), that Court determined that the statutory scheme was
ambiguous, and that the Attorney General’s interpretation
forbidding aliens subject to reinstated removal orders from
applying for asylum to be reasonable. Perez-Guzman v.
Lynch, 835 F.3d 1066, 1077, 1082 (9th Cir. 2016), reh’g and
reh’g en banc denied (9th Cir. 2017). We agree.
Using the same Chevron framework that the Ninth
Circuit employed, we first assess whether “Congress has
directly spoken to the precise question at issue.” Chevron,
467 U.S. at 842. If we can discern congressional intent using
the plain text and traditional tools of statutory construction,
our inquiry ends: we give effect to Congress’s intent. See id.
at 843. If, however, the statute remains ambiguous, we defer
to the agency’s reasonable interpretation of the statutory
scheme, even if the interpretation is not what we would
whose removal orders are reinstated may not apply for
asylum.”); Herrera-Molina v. Holder, 597 F.3d 128, 138–39
(2d Cir. 2010) (plain text, Attorney General’s regulations, and
precedent all supported conclusion that aliens subject to
reinstated removal orders could not apply for asylum).
11
Jiminez-Morales, 821 F.3d at 1310; Ramirez-Mejia, 794
F.3d at 491; Herrera-Molina, 597 F.3d at 138–39 (2d Cir.
2010).
12
Perez-Guzman, 835 F.3d at 1074 (citations omitted).
13
otherwise choose. See Nat’l Cable & Telecomm. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 980 (2005).
A. Chevron Step One
In discerning congressional intent, we look first to the
plain text of the statute. CSX Trans., Inv. v. Ala. Dep’t of
Revenue, 562 U.S. 277, 283 (2011). In this case, the text does
not indicate clear and unambiguous congressional intent.
Both provisions at play use broad language to characterize
their mandates: that “any” alien can apply for asylum, §
1158(a)(1), but that aliens subject to reinstated removal orders
are barred from “any relief,” § 1231(a)(5). “Read naturally,
the word ‘any’ has an expansive meaning . . . .” United States
v. Gonzales, 520 U.S. 1, 5 (1997). It means “one or some
indiscriminately of whatever kind.” Id. (quoting Webster’s
Third New International Dictionary 97 (1976)).
But despite use of the word “any,” neither section is as
broad as it first seems. As to § 1158(a)(1), despite claiming
that “any” alien may apply for asylum, the section then lists
specific groups of aliens who may not in fact apply.
§1158(a)(2)(A)–(C). So, it is not “any” alien who can apply,
but only certain classes of aliens. As to §1231(a)(5), although
the section bars “any relief” under the chapter, precedent and
the Attorney General’s own interpretation clarify that
withholding from removal and CAT protection—both forms
of relief 13 —are actually still available to individuals in
13
Despite both sides’ arguments to the contrary, neither
statute nor caselaw supports any argument that either asylum
or withholding of removal is not in fact “relief” in this case.
See, e.g., Yusupov v. Att’y Gen. of United States, 518 F.3d
14
reinstatement proceedings. See Fernandez-Vargas, 548 U.S.
at 35 n.4; 8 C.F.R. §§ 1208.31(e), 1208.16(c)(4). Here, the
plain language of the statute offers no insight into Congress’s
intent as to how we should interpret the interplay between the
two sections at issue.
Nor can we discern Congress’s clear intent using
“traditional tools of statutory construction.” Chevron, 467
U.S. at 843 n.9. To start, both sides rely on the canon
generalia specialibus non derogant, that the specific governs
the general in interpreting a statutory scheme. See Nitro-Lift
Techs., L.L.C. v. Howard, 133 S. Ct. 500, 504 (2012). The
logic behind this canon is quite simple: when there are two
conflicting provisions, we can assume that “Congress has
enacted a comprehensive scheme and has deliberately
targeted specific problems with specific solutions.” Radlax
Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,
2071 (2012) (quoting Varity Corp. v. Howe, 516 U.S. 489,
519 (1996) (Thomas, J., dissenting)). Thus, the more specific
section targets the specific question at issue and that section
should control our interpretation.
185, 188 n.1 (3d Cir. 2008) (referring to withholding of
removal as “relief”); Ghebrehiwot v. Att’y Gen. of United
States, 467 F.3d 344, 351 (3d Cir. 2006) (same); Johnson v.
Gonzales, 416 F.3d 205, 211 (3d Cir. 2005) (referring to
asylum as relief); see also § 1229(a)(c)(7)(C)(ii) (referring to
asylum as relief); United States v. Denedo, 556 U.S. 904, 909
(defining the “familiar meaning” of “relief” as “any ‘redress
or benefit’ provided by a court (quoting Black’s Law
Dictionary 1317 (8th ed. 2004)).
15
Here, however, the canon does not help us resolve the
question definitively, because each subsection is more
specific in certain respects and more general in others.
Section 1158(a)(1) speaks with specificity as to a type of
relief Cazun seeks: asylum. But § 1231(a)(5) speaks with
specificity as to a subset of aliens: those, like Cazun, subject
to reinstated removal orders. While Judge Hardiman makes
several persuasive arguments as to why he finds the
reinstatement bar the more specific provision, Concurrence
Typescript at 6–9, we are not convinced that this canon
renders the statutory scheme clear at Chevron’s first step,
especially given the asylum bar’s explicit applicability to
aliens “irrespective of [their] status.”14
14
Cazun briefly argues that the rule of lenity, or its
immigration corollary, supports her favored interpretation.
See Cardoza-Fonseca, 480 U.S. at 449. But we have never
found that such a rule of construction clarifies an ambiguous
statute, especially one with two conflicting provisions, such
that it does away with the need to proceed to Chevron’s
second step. Cf. Babbitt v. Sweet Home Chapters of Cmtys.
for Great Ore., 515 U.S. 687, 704 n.18 (1995). Indeed, we
use the immigration rule of lenity “as a canon of last resort”
when interpreting statutory ambiguities. Valansi v. Ashcroft,
278 F.3d 203, 214 n.9 (3d Cir. 2002). “It cannot be the case . .
. that the doctrine of lenity must be applied whenever there is
an ambiguity in an immigration statute because, if that were
true, it would supplant the application of Chevron in the
immigration context.” Ruiz-Almanzar v. Ridge, 485 F.3d 193,
198 (2d Cir. 2007). To the contrary, deference is especially
applicable in the immigration context. See INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999). We also note that the
policy concerns animating the rule of lenity—executive
16
Nor does legislative history clarify Congress’s intent
on the matter. “IIRIRA’s amendments to the INA show
Congress intended to add more detail to the existing asylum
scheme while simultaneously expanding the scope and
consequences of the reinstatement of an earlier removal
order.” Perez-Guzman, 835 F.3d at 1076. Because Congress
enacted the two conflicting provisions on the same day,
cherry picking statements from legislative history tends to
ignore congressional intent on the opposing provision.
Legislative history is of little use in helping us resolve this
question.
Cazun offers a number of other arguments to support
her position that the statute is clear on its face. None are
convincing. First, she emphasizes a minor textual change
Congress made when it recrafted the INA in 1996. The
original text of the asylum provision had stated that “an” alien
could apply for asylum irrespective of status; the updated text
provided that “any” alien could do so. Compare § 1158(a)
(1980), with id. § 1158(a)(1) (1996). We think this change is
of little interpretive significance, because on the same day
that Congress made the change it forbade those subject to
reinstated removal orders from obtaining “any” relief.
Certainly this minor alteration does not clearly express
Congress’s intent on the matter.
Second, Cazun suggests that making aliens subject to
reinstated removal orders ineligible for asylum risks running
afoul of treaty obligations under the United Nations Protocol
encroachment on legislative powers and notice to defendants
accused of crimes, see Esquivel-Quintana v. Lynch, 810 F.3d
1019, 1023 (6th Cir. 2016)—are not implicated in this case.
17
Relating to the Status of Refugees (“Protocol”), 15 or that
treaty obligations should at least inform our reading of the
statute. But, given the availability of withholding of removal
and CAT protection, there is no treaty obligation in conflict
with the Government’s reading. See Ramirez-Mejia v. Lynch,
813 F.3d 240, 241 (5th Cir. 2016) (denying rehearing en
banc). 16
15
The United States agreed to comply with the
substantive provisions of Articles 2 through 34 of the 1951
United Nations Convention Relating to the Status of Refugees
(“Convention”) in 1968. Cardoza-Fonseca, 480 U.S. at 429
(citing 19 U.S.T. 6223, 6259–6276, T.I.A.S. No. 6577
(1968)). The Protocol incorporated the Convention.
Marincas, 92 F.3d at 197.
16
Cazun points to three specific Articles from the
Protocol to support her proposed interpretation. None
convince us as to Congress’s clear intent. First, she highlights
Article 34, which urges nations to assimilate refugees. But
this Article is merely “precatory.” Cardoza-Fonseca, 480
U.S. at 441.
Second, she turns to Article 28, which requires
signatories to afford refugees travel documents. She contends
that the travel restrictions placed on recipients of withholding
violate this Article, so she must be granted the right to apply
for asylum. But we have noted that the Protocol is “not self-
executing, nor does it confer any rights beyond those granted
by implementing domestic legislation.” Al-Fara v. Gonzales,
404 F.3d 733, 743 (3d Cir. 2005). And even assuming that
this Article should influence our interpretation, it does not
provide the support Cazun contends. Her reasoning that
withholding of removal “effectively trap[s her] within the
United States,” Pet. Br. at 33, misstates the relief’s effect. As
18
Finally, Cazun argues that our reasoning in Marincas
v. Lewis, 92 F.3d 195 (3d Cir. 1996), counsels that we find
the INA to be clear and unambiguous here. In that case, we
considered whether the Refugee Act of 1980 required that
stowaways receive the same asylum proceedings as non-
stowaway aliens. One provision of the INA commanded that
the Attorney General establish “a procedure”—singular—for
aliens to apply for asylum “irrespective of [the] alien’s
status.” § 1158(a) (1980). But an earlier-enacted provision
instructed that stowaways, a specific class of aliens, were not
entitled to an exclusion hearing, where the asylum
determination took place. Marincas, 92 F.3d at 198. Thus, the
BIA reasoned such stowaway applicants for asylum were not
entitled to the same adversarial adjudication before an IJ that
other aliens received at an exclusion hearing. See id. at 199–
200. Instead, the BIA concluded that stowaways applying for
a recipient of withholding of removal and CAT protection,
Cazun remains free to leave the United States: she simply
cannot return to the United States without approval from
immigration authorities.
Third, Cazun points to Article 31(1), which forbids
countries from imposing “penalties” “on account of [an
applicant’s] illegal entry or presence.” She argues that the
reinstatement bar constitutes such a penalty. Again, even
assuming this Article should influence our interpretation,
neither the text of the Article nor its history clearly indicates
that the reinstatement bar, which does not imprison or fine
aliens, is the sort of criminal “penalty” forbidden. See James
C. Hathaway, The Rights of Refugees Under International
Law, 405, 408, 411 (2005). In short, this non-self-executing
treaty provides no basis for finding that Congress spoke
clearly on the issue at hand.
19
asylum should receive only a non-adversarial interview
before an INS employee. See id. at 199–200.
We rejected the BIA’s distinction between stowaways
and other aliens with respect to asylum proceedings. We
found that, regarding the question we faced there, “the plain
meaning of the Refugee Act is clear and unambiguous” at the
first step of Chevron. Id. at 200. Because the statute required
“a uniform” procedure for an alien to apply for asylum
“irrespective of such alien’s status,” we found that Congress
did not intend to allow one procedure for stowaways and
another for other aliens. See id. at 201. However, we noted
that stowaways’ hearings could be limited to the issue of
asylum, and that their hearings need not reach any other
exclusion issue.
Cazun likens her case to Marincas: one provision of
the INA singles out her group—those subject to reinstated
removal orders—for less favorable immigration procedures
than other aliens, while another provision envisions equal
asylum procedures for all aliens.
Cazun’s analogy fails, however, for several reasons.
First, as Cazun herself agreed at oral argument, in Marincas
we considered a different statute altogether than the one we
analyze today. There, we interpreted the Refugee Act of
1980, not IIRIRA. Although the language of the asylum
provision remained largely unchanged by IIRIRA, the
statutory scheme as a whole shifted dramatically. Therefore,
Marincas’s interpretation of the asylum provision enacted in
1980 does little to clarify what Congress intended when it
enacted IIRIRA, which included the broad reinstatement bar,
sixteen years later.
20
Second, even setting this difference aside, common
principles of statutory interpretation distinguish Cazun’s case
from Marincas. When interpreting statutes, we work to “fit, if
possible, all parts [of a statute] into an harmonious whole.”
Food & Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (quoting FTC v. Mandel Bros., Inc.,
359 U.S. 385, 389 (1959)). In Marincas, we were able to so
harmonize the statutory scheme without doing serious
damage to either of the provisions at issue. For although we
held that stowaways were entitled to the same adversarial
hearing as other aliens, we nonetheless reasoned that the
stowaway’s hearing could be limited to the issue of asylum
eligibility: consistent with the stowaway provision’s dictates,
the asylum hearing need not reach any other issue of
exclusion. Marincas, 91 F.3d at 201. Thus, our ruling
harmonized the seemingly contradictory provisions, and we
were able to preserve the “basic thrust” of the stowaway
provision. Id. Here, Cazun offers no similar way for us to
preserve both § 1158(a) and § 1231(a)(5).
Finally, at the core of our reasoning in Marincas was a
commitment to discerning congressional intent. We found
strong support for the idea that “Congress clearly intended a
single, uniform procedure be established” with respect to
asylum proceedings. Id. So when we interpreted the weighty
asylum provision alongside a somewhat cursory, technical
provision regarding stowaways, it was not difficult to
conclude that Congress intended that the asylum provision
should control. But here, we must square the asylum
provision that affords relief with the reinstatement bar that
takes such relief away. We know that Congress intended the
reinstatement bar to be taken seriously, see Fernandez-
21
Vargas, 548 U.S. at 33–35, and that the provision should be
given considerable weight in interpreting the provisions. Thus
we cannot say, as we did in Marincas, that Congress clearly
intended that one provision or the other should control.
Because of these differences, we cannot reconcile the
provisions so as to find the INA “clear and unambiguous”
here.17
The Attorney General’s arguments that the text is clear
and unambiguous fare no better than Cazun’s. For while the
Government focuses on language barring aliens from “any
relief,” it ignores the affirmative asylum provision, which
applies on its face to “any alien . . . , irrespective of such
alien’s status.” Accordingly, because the statute does not
clearly indicate congressional intent, we proceed to the
second step of Chevron.
B. Chevron Step Two
At the second step of Chevron, we defer to the
agency’s interpretation of the statute as long as that reading is
reasonable. Brand X Internet Servs., 545 U.S. at 980.
Deference to the executive branch is “especially appropriate
in the immigration context” where officials must make
complex policy judgments. See Aguirre-Aguirre, 526 U.S. at
425; Yosupov, 518 F.3d at 197. We must therefore decide
whether 8 C.F.R. § 1208.31(e)—which prevents individuals
17
In addition, two other factors supported our analysis in
Marincas that are not at issue today: a concern for basic due
process rights once an applicant was entitled to an asylum
proceeding, 92 F.3d at 203–04, and the Board’s seemingly
inconsistent statutory interpretations, id. at 201–02.
22
subject to reinstated removal orders from applying for
asylum—is a reasonable interpretation of the statutory
scheme.18
It was reasonable for the agency to conclude that the
statutory reinstatement bar foreclosing “any relief under this
chapter” means just what it says: no asylum relief is available
18
As a threshold matter, we reject Cazun’s argument that
the interpretation does not merit Chevron deference because
the agency did not appreciate the statutory ambiguity at issue.
She cites out-of-circuit cases for the proposition that an
agency failing to appreciate statutory ambiguity deserves no
deference. Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier
Safety Admin., 471 F.3d 1350 (D.C. Cir. 2006); Cajun Elec.
Power Coop., Inc. v. F.E.R.C., 924 F.2d 1132 (D.C. Cir.
1991).
But even those non-binding cases do not support her
position. Despite some language in Cajun Electric Power
Coop., Inc. supporting Cazun’s argument, that case involved
interpretation of a contract, not a statute. 924 F.3d at 1135.
And in Peter Pan Bus Lines, Inc., the agency mistakenly felt
compelled to reach the conclusion it did. 471 F.3d at 1354;
see also Negusie v. Holder, 555 U.S. 511, 521 (2009)
(refusing to apply Chevron deference where agency
mistakenly deemed its interpretation “mandated” by
precedent). Here, Cazun seems to infer from the Attorney
General’s lack of discussion about the asylum statute that the
agency felt similarly compelled to arrive at the conclusion it
did. But this inference is unsubstantiated. On the contrary, the
agency’s explanation demonstrated that it relied on its own
expertise to balance Congress’s goals of efficiency and
fairness in the screening process. See 64 Fed. Reg. at 8485.
23
to those subject to reinstated removal orders. Certainly this
interpretation was not unreasonable: two Courts of Appeals
have explicitly adopted the same interpretation without even
finding the statutory scheme ambiguous. Jiminez-Morales,
821 F.3d at 1310; Ramirez-Mejia, 794 F.3d at 489–91.19
Even independent of these courts’ conclusions, at least
four factors lend support to the agency’s interpretation. First,
as discussed at length in Judge Hardiman’s concurrence, the
reinstatement bar is, at least in some respects, more specific
than the asylum provision. It applies to a far narrower group
of aliens—those subject to reinstated removal orders—than
the asylum provision, which applies to all aliens. From a
purely textual standpoint, this in and of itself might compel us
to agree with the Attorney General were we forced to decide
the issue without resorting to Chevron.
Second, the Supreme Court has already emphasized
congressional intent as to IIRIRA in Fernandez-Vargas, 548
U.S. at 33: Congress meant to strengthen the effect of the
reinstatement bar. See also H. R. Rep. No. 104-469(I), at 155
(1996) (“[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.”). The agency’s interpretation is
faithful to that intent. For aliens who re-enter our shores
illegally despite previous removal and instructions not to
return, the Attorney General’s interpretation takes asylum off
19
While the Second Circuit concluded in Herrera-Molina
that aliens subject to reinstatement removal orders could not
apply for asylum, that case did not explicitly interpret the
reinstatement bar. 597 F.3d at 138–39.
24
the table while allowing other forms of relief that fulfill
humanitarian commitments.
Third, the Supreme Court has emphasized that the
Attorney General can deny asylum in the agency’s discretion
even when an alien meets the criteria for asylum. Cardoza-
Fonseca, 480 U.S. at 423–24; see also § 1158(d)(5)(B). It
would be strange to find that granting asylum is discretionary,
but that the Attorney General must allow Cazun to apply,
even in the face of contradictory statutory text.
Finally, the agency has expertise making complex
policy judgments related to asylum, withholding of removal,
and CAT protection. Deference regarding questions of
immigration policy is especially appropriate. See Aguirre-
Aguirre, 526 U.S. at 425.
All this is not to say that the agency’s position is
flawless. To start, the Attorney General’s interpretation bars
from asylum those like Cazun whose compelling claims arose
after their first removal order was issued. This is at least in
tension with the text of § 1158(a)(2)(D), which allows aliens
who can demonstrate changed circumstances to apply for
asylum even when a previous application was rejected.
Further, the Attorney General’s reading seems
counterintuitive as applied to someone in Cazun’s situation.
An alien like Cazun who complies with a removal order is
barred from asserting an asylum claim on illegal reentry. But
aliens ordered to be removed who evade deportation are not
similarly barred: those aliens never left the country, so their
first removal order remains in effect and is not subject to
reinstatement. Thus, such non-compliant aliens avoid the
25
reinstatement bar and may apply for asylum in the face of
changed circumstances, while those who comply with the
removal order but reenter illegally cannot.
However, these points are not fatal to the
Government’s case. For while the Government’s reading
leaves vulnerable those like Cazun whose claims for asylum
arose after they were previously removed, as the Government
urged in briefing and oral argument, reinstatement of a
removal order is not automatic. See § 1231(a)(5); Perez-
Guzman, 835 F.3d at 1081 (“[T]he government has discretion
to forgo reinstatement and instead place an individual in
ordinary removal proceedings.” (citing Villa-Anguiano v.
Holder, 727 F3d 873, 878 (9th Cir. 2013))). The agency may
rely on this flexibility when deciding whether to reinstate a
previous removal order. Exercising this discretion in cases
like Cazun’s speaks to the “wisdom of the agency’s policy,
rather than whether it is a reasonable choice within a gap left
open by Congress.” Chevron, 467 U.S. at 866. 20 As a result,
we will defer to the agency’s expertise on complex matters of
immigration policy such as the one before us today. See
Aguirre-Aguirre, 526 U.S. at 425.
III. Conclusion
20
To the extent that prosecutorial discretion is denied to
aliens such as Cazun, we note that the reinstatement bar
applies only to “an alien who has reentered the United States
illegally.” § 1231(a)(5) (emphasis added). Thus, aliens
subject to removal orders may continue to apply for asylum
by lawfully approaching a port of entry without illegally
crossing the border.
26
In summary, the agency’s interpretation of the
ambiguous statute is reasonable. When Congress enacted
IIRIRA, it set the agency adrift between an interpretive Scylla
and Charybdis. No reading—including Cazun’s—could
harmonize the statutory scheme perfectly. But because the
Attorney General’s reading, bolstered by its own expertise, is
reasonable, we will defer to it and uphold the decision of the
BIA.
27
Yoselin Linet Martinez Cazun v. Attorney General United
States, No. 15-3374
HARDIMAN, Circuit Judge, concurring in the judgment.
Under Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council,
Inc., 467 U.S. 837 (1984), we do not defer to an agency’s
construction of a statute when “Congress has directly spoken
to the precise question at issue.” Id. at 842. At issue in this
appeal is whether Yoselin Cazun may apply for asylum even
though she is the subject of a reinstated removal order. To
answer that question we must analyze two provisions of the
Immigration and Naturalization Act: 8 U.S.C. § 1158 (the
“asylum provision”) and § 1231(a)(5) (the “reinstatement
bar”). The asylum provision permits “[a]ny alien” to apply for
asylum, while the reinstatement bar precludes aliens subject
to reinstated removal orders from applying for “any relief.”
Based on the text, history, and structure of the statute, I would
hold that the reinstatement bar precludes Cazun from
applying for asylum. This interpretation fulfills our duty to
“fit, if possible, all parts [of this statute] into an harmonious
whole.” FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000) (citation omitted).
Three of our sister courts agree that the INA precludes
aliens like Cazun from applying for asylum. See Jimenez-
Morales v. Att’y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016)
(holding an alien with a reinstated removal order “is not
eligible for and cannot seek asylum”); Ramirez-Mejia v.
Lynch, 794 F.3d 485, 490 (5th Cir. 2015) (holding the
reinstatement bar, “read plainly, broadly denies all forms of
redress from removal, including asylum”), pet’n for reh’g en
banc denied, 813 F.3d 240 (5th Cir. 2016); Herrera-Molina v.
Holder, 597 F.3d 128, 138–39 (2d Cir. 2010) (accepting
1
regulations applying restrictions to aliens subject to
reinstatement removal orders as correct statutory
interpretations); see id. at 137 (discussing “the availability of
suspension of deportation or asylum” and noting “the terms of
[the reinstatement bar] preclude such relief”). But see Perez-
Guzman v. Lynch, 835 F.3d 1066, 1076–77 (9th Cir. 2016)
(finding the statute ambiguous and deferring to the Agency).
And while I agree with the Ninth Circuit in Perez-Guzman
and with the Majority that the Agency’s interpretation here is
reasonable, I would join the Eleventh, Fifth, and Second
Circuits in finding that it is compelled by the statute.
I
The provisions at issue in this appeal were codified in
1996 as part of the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208,
Div. C, 110 Stat. 3009 (1996). IIRIRA recodified the asylum
provision at § 1158 and enacted for the first time the
reinstatement bar codified at § 1231(a)(5), which prohibits
illegal reentrants from applying for “any relief” under the
statute.
The asylum provision as recodified in IIRIRA retained
its original scope and was reformatted in two sections. One
section provides that “[a]ny alien . . . , irrespective of such
alien’s status, may apply for asylum” if present in the
country, and the other section lists some exceptions to the
general provision. § 1158(a)(1)–(2).
IIRIRA also implemented a more efficient process for
the reinstatement of removal orders. Before 1996, those who
entered the United States illegally after having been deported
typically were placed in a new round of regular deportation
2
proceedings. Fernandez-Vargas v. Gonzales, 548 U.S. 30,
33–34 (2006). IIRIRA streamlined the system by reinstating
prior orders of removal as of their original start date, thus
hastening the removal process.1 As such, aliens with
reinstated orders may be removed “at any time after the
reentry,” without new administrative hearings or any
opportunity for review. § 1231(a)(5). Most important for
purposes of this appeal, reinstated orders disqualify those who
reenter after prior removal from obtaining “any relief under
this chapter.” Id.
As the Supreme Court noted, the reinstatement bar
“toed a harder line” by “appl[ying] to all illegal reentrants.”
Fernandez-Vargas, 548 U.S. at 34–35 (emphasis added). This
“harder line,” id. at 34, punishes and deters the criminal act of
reentering the country illegally, see 8 U.S.C. § 1326. See
generally In re Briones, 24 I. & N. Dec. 355, 370–71 (B.I.A.
2007) (“[O]ne of the chief purposes of the IIRIRA . . . was to
overcome the problem of recidivist immigration violations by
[inter alia] escalating the punitive consequences . . . of illegal
reentry.” (citing IIRIRA §§ 105(a)(2), 301(b)(1), 303(a),
305(a)(3), (b)(3), 324(a), 326, 332, 353(b), which “expedite
the detection, deterrence, and punishment of recidivist
immigration violators”)).
The Immigration and Naturalization Service
implemented the reinstatement bar by promulgating
regulations that established expedited removal proceedings
for illegal reentrants subject to a prior removal order, 8 C.F.R.
1
IIRIRA also consolidated deportation and exclusion
proceedings into one “removal” proceeding. See 8 U.S.C.
§ 1227. The reinstatement provision further streamlines this
removal process for aliens with reinstated removal orders.
3
§ 241.8(a), (c), and precluded those aliens from filing asylum
applications, id. § 208.31(e) (allowing reasonable fear
proceedings “for full consideration of the request for
withholding of removal only” (emphasis added)).
II
At Chevron Step One, we use “traditional tools of
statutory construction” to ascertain whether “Congress had an
intention on the precise question.” Hanif v. Att’y Gen., 694
F.3d 479, 483 (3d Cir. 2012) (citation omitted). In doing so,
we “consider the text and structure of the statute in question.”
United States v. Geiser, 527 F.3d 288, 292 (3d Cir. 2008).
Cazun and the Government agree that the statute is
clear, but they disagree about whose position it supports.
Cazun claims she should prevail because the asylum
provision states that “[a]ny alien” may apply for asylum,
“irrespective of such alien’s status.” 8 U.S.C. § 1158(a)(1).
For its part, the Government argues that Cazun is ineligible
for asylum because she is subject to a reinstated removal
order and the reinstatement bar says she is “not eligible and
may not apply for any relief” under Chapter 12 of Title 8 of
the United States Code, which includes the asylum provision.
8 U.S.C. § 1231(a)(5).
We previously found both sections at issue to be clear
when read independently. We held in Marincas v. Lewis that
“under the plain meaning of [the asylum provision], Congress
clearly and unambiguously intended that the Attorney
General establish a uniform asylum procedure that is to be
applied irrespective of an alien’s status.” 92 F.3d 195, 201 (3d
Cir. 1996) (disallowing unequal procedures for alien
stowaways). Marincas does not control this appeal, however.
4
As my colleagues note, Maj. Op. at 19–21, Marincas did not
analyze the reinstatement bar because it had not yet taken
effect. After our decision in Marincas, in a case dealing with
the reinstatement bar, we assumed in dicta that “asylum is not
available to aliens who face reinstatement of a prior order of
removal [under] 8 U.S.C. § 1231(a)(5).” Gonzalez-Posadas v.
Att’y Gen., 781 F.3d 677, 680 (3d Cir. 2015). Because neither
Marincas nor Gonzalez-Posadas analyzed the interplay
between the asylum provision and the reinstatement bar, this
appeal requires us for the first time to “attempt to harmonize”
two statutory provisions that seem, at first blush, to conflict
with one another. N.J. Air Nat’l Guard v. Fed. Labor
Relations Auth., 677 F.2d 276, 282 (3d Cir. 1982); see also
Morton v. Mancari, 417 U.S. 535, 551 (1974) (“The courts
are not at liberty to pick and choose among congressional
enactments, and . . . it is the duty of courts, absent a clearly
expressed congressional intention to the contrary, to regard
each as effective.”).
A
Our effort to harmonize these provisions begins with
the text of the statute. CSX Transp., Inc. v. Ala. Dep’t of
Revenue, 562 U.S. 277, 283 (2011). As the Majority notes,
both provisions use the word “any,” which typically has an
“expansive meaning.” Maj. Op. at 14 (citing United States v.
Gonzales, 520 U.S. 1, 5 (1997)). Yet “neither section is as
broad as it first seems.” Id.
After stating that any alien, irrespective of status, may
apply for asylum, the asylum provision then lists several
exceptions preventing certain aliens from doing so in specific
circumstances. See § 1158(a)(2). It is thus clear that some
aliens may not apply for asylum. In a similar way, after the
5
reinstatement bar states that aliens with reinstated removal
orders may not apply for any relief, the statute goes on to
allow them to seek withholding of removal to certain
countries. See § 1231(b)(3)(A). Thus, that section does not
bar all types of relief. So neither provision is absolute, and
both may be limited by other provisions. Therefore, we must
turn to canons of construction and the statute’s structure to
see whether the two provisions can be harmonized.
B
Cazun and the Government both invoke the
“specificity” canon of statutory construction. Maj. Op. at 15.
Simply put, this means that a “narrow, precise, and specific”
statutory provision is not overridden by another provision
“covering a more generalized spectrum.” Radzanower v.
Touche Ross & Co., 426 U.S. 148, 153 (1976); see also
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 183 (2012) (explaining that
because the more specific text “comes closer to addressing
the very problem posed by the case at hand[, it] is thus more
deserving of credence”).
Instead of challenging this canon of construction, the
parties each claim that their favored provision is more
specific than the other one. Although both parties provide
reasonable arguments, 2 I am convinced that the reinstatement
2
Justice Scalia and Mr. Garner recognize that in some
cases, “it is difficult to determine whether a provision is a
general or specific one.” Scalia & Garner, supra, at 187.
Sometimes two provisions may be seen as more specific each
in their own way. See id. at 187–88 (citing Radzanower, 426
U.S. at 159 (Stevens, J., dissenting)).
6
bar is more specific than the asylum provision. While the
asylum provision establishes general rules for asylum
applications, the reinstatement bar deals specifically with a
particular subset of illegal aliens: those who are subject to
reinstated removal orders. As such, it is most naturally read as
an exception to the “general permission,” Scalia & Garner,
supra, at 183, to apply for asylum. By making relief
unavailable to certain aliens, the reinstatement bar nullifies
every relief provision to which it applies with respect to
certain persons no longer eligible for that relief.
Cazun argues that the reinstatement bar is a “blunt
instrument” that is less detailed, and thus less specific, than
the asylum provision. Cazun Br. 17–18. I disagree. The
reinstatement bar’s application to all of Chapter 12 does not
defeat its specificity. When Congress raised the age at which
Americans could receive full Social Security benefits, see
Social Security Amendments of 1983, Pub. L. No. 98-21,
§ 201, 97 Stat. 65 (1983) (codified at 42 U.S.C. § 416(l)(1)),
the law affected millions of people. But its broad applicability
did nothing to dilute its specificity. In a similar way, the
reinstatement bar applies to a large but specific group of
people (aliens with reinstated removal orders) and deprives
them of relief for which they would otherwise qualify—in
this case, asylum.
As the Majority suggests, the asylum provision can
also be seen as specific insofar as it deals with just one of
many types of relief. Maj. Op. at 16; see also Perez-Guzman,
835 F.3d at 1075–76. But focusing the specificity inquiry on
the type of relief available as opposed to the type of person
affected creates tensions in the statute that my interpretation
does not.
7
First, the reinstatement bar creates an exception from
the general availability of multiple forms of relief (of which
asylum is one), whereas the asylum provision simply
establishes rules for asylum applications and makes them
generally available to “[a]ny alien,” subject to exceptions. If
asylum (and every other form of relief) were deemed more
specific than the reinstatement bar, all forms of relief found in
Chapter 12 would be unaffected by the reinstatement bar,
essentially nullifying that section in violation of another
canon of construction: “the cardinal principle that we do not
cripple statutes by rendering words therein superfluous.”
Rojas v. Att’y Gen., 728 F.3d 203, 209 (3d Cir. 2013); see
also id. at 210 (“It is our duty to give effect, if possible, to
every clause and word of a statute.” (quoting Duncan v.
Walker, 533 U.S. 167, 174 (2001))).
Second, creating a requirement that all forms of relief
in Chapter 12 must cross-reference the reinstatement bar in
order for it to apply, as Cazun recommends, would run afoul
of the statutory scheme. Cazun claims that because the
asylum provision enumerates some exceptions, see
§ 1158(a)(2), (b)(2)(A), but does not reference the
reinstatement bar among them, Congress did not intend to
make illegal reentrants ineligible for asylum. But if the
reinstatement bar applied only to types of relief that cross-
referenced it, it would never apply. See Gov’t Br. 29 (noting
that none of the forms of relief under the INA specifically
refers to reinstatement of removal). Such an interpretation not
only would render the reinstatement bar superfluous, it would
also contravene the Supreme Court’s observation that the
reinstatement bar “generally forecloses discretionary relief
from the terms of the reinstated [removal] order,” Fernandez-
Vargas, 548 U.S. at 35.
8
Indeed, the Supreme Court already recognized that
Congress limited at least some types of relief via the
reinstatement bar when it “held that aliens subject to
reinstatement orders are ineligible for adjustments of status[] .
. . [even though] the adjustment-of-status provision[ did] not
mention reinstatement orders.” Ramirez-Mejia, 794 F.3d at
490 (describing Fernandez-Vargas, 548 U.S. at 46–47, and 8
U.S.C. § 1255 (adjustment-of-status provision)). It so held
despite the fact that the adjustment-of-status provision—like
the asylum provision—does not reference the reinstatement
bar among its other enumerated exceptions. Provisions like
the reinstatement bar, which by their terms create exceptions
from many other sections, need not list every section to which
they apply, nor must they be explicitly cross-referenced in the
excepted provisions. Congress may choose to limit one
section of a statute via another section without an explicit
cross-reference to or amendment of the section to be limited.
See id. (“The judiciary’s role is not to question the method of
an amendment but only to interpret its effect.”).
C
Cazun’s remaining counterarguments are also
unavailing.
The reinstatement bar speaks to the more specific
problem Congress meant to address even if Cazun is correct
that in some years those who are subject to reinstatement
removal orders outnumber those who apply for asylum. As
with the Social Security example mentioned previously, the
numerosity of the class sheds no light on the specificity of the
statute. Moreover, not every alien who submits an asylum
application is subject to a reinstated removal order, which is
reflected by every successful asylum applicant since 1996.
9
Thus, there are necessarily fewer asylum applications from
aliens with reinstated orders than the total number of asylum
applications. The class of aliens who seek asylum despite
reinstated removal orders, then, is still narrower than the class
of aliens who seek asylum generally.
The policy concerns created by Cazun’s changed
circumstances should not sway our opinion either. Congress
decided to “toe[] a harder line” with respect to “illegal
reentrants,” Fernandez-Vargas, 548 U.S. at 34–35, and to
discourage initial illegal entry by removing some options
upon illegal reentry. And the fact that withholding of removal
is available to Cazun and those like her mitigates somewhat
the concerns about “dire humanitarian consequences,” Perez-
Guzman, 835 F.3d at 1081. And as my colleagues note,
asylum seekers may declare themselves at the border without
illegally reentering the country after they have been removed.
See Maj. Op. at 26 n.20.
Congress’s focus on illegal reentry would also explain
the disparate treatment of aliens successfully removed
previously (even if changed circumstances result) from those
who have not yet been removed. See Maj. Op. at 25–26. It is
only the former group that commits the action which triggers
reinstated removal orders: “reenter[ing] the United States
illegally after having been removed or having departed
voluntarily.” § 1231(a)(5).
III
Because the statute is not “silent or ambiguous” as to
whether aliens with reinstatement orders of removal may
apply for asylum, I would enforce the statute as written rather
than defer to the Agency’s interpretation. Chevron, 467 U.S.
10
at 843. Section 1231(a)(5)—the reinstatement bar—
specifically prevents the subclass of aliens of which Cazun is
a member from applying for any relief under Chapter 12 of
Title 8, which includes asylum. Nothing about this section is
ambiguous, nor is there an implication that Congress intended
a “legislative delegation to [the Agency] on [the] particular
question” of the effect of reinstated removal orders. Chevron,
467 U.S. at 844. Unlike the “definitional issue” in Chevron,
id. at 858, in which the lack of definition of “stationary
source” meant that “Congress did not actually have an intent
regarding the applicability of [the relevant environmental]
concept to the permit program,” id. at 845, Congress here has
expressed its intent to disqualify illegal reentrants from
applying for asylum, among other forms of relief.
The Majority opinion eloquently describes the facts,
the question of statutory interpretation presented, and the
various legal arguments made by both sides. I agree with my
colleagues that the Agency’s interpretation of IIRIRA is
reasonable, and would join them in full if I believed this
question should be decided under Step Two of Chevron. I
concur only in the judgment, however, because I think we
should end our analysis at Step One.
It is true that the apparent conflict in this case presents
a difficult question of statutory interpretation, but our
traditional tools of statutory construction answer it. Unless we
find silence or ambiguity after employing these tools, we
must answer even difficult interpretative questions. See
Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2214 (2014)
(Roberts, C.J., concurring in judgment) (“[D]eference is [not]
warranted because of a direct conflict between [two] clauses .
. . . [Statutory] conflict is not ambiguity . . . .”). The
reinstatement bar singles out a subclass of aliens—illegal
11
reentrants subject to reinstated removal orders—and deprives
them of various forms of relief available under Chapter 12,
including asylum.
More than merely reasonable, the Agency’s view that
Cazun is ineligible for asylum is compelled by the statute. For
that reason, I concur in the judgment.
12