for Review from the Board of Immigration Appeals
E. Andrade, Andrade Legal, Boise, Idaho, for Petitioner.
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.
Barr, Lichter Immigration, Denver, Colorado, Charles Roth and
Zeren Zwick, National Immigrant Justice Center, Chicago,
Illinois, filed a for Amici Curiae.
EBEL and LUCERO, Circuit Judges.
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).
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 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.
International Agreements and Statutes
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).
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
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.
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 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
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. In order to expedite the removal process
for these repeat offenders and deter illegal reentry,
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 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).
Apparent Conflict and Attorney General's
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.
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. 8 C.F.R. §
1208.31(e) (When the 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)). 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).
the Attorney General's restriction on asylum makes a
difference to an applicant because asylum "affords
broader benefits" than 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).
this statutory and regulatory regime in mind, we turn to the
facts of the case before us.