[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 13, 2009
No. 08-10259 THOMAS K. KAHN
________________________ CLERK
Agency No. A73-765-967
YI-QIN CHEN,
a.k.a. Yi-Chin Dhen,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 13, 2009)
Before BLACK and MARCUS, Circuit Judges, and BUCKLEW,* District Judge.
*
Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
PER CURIAM:
Chinese native and citizen Yi-Qin Chen is an alien under a final order of
removal entered in 1995. In 2006, Chen filed a motion to file a successive asylum
application based on changed circumstances under 8 U.S.C. § 1158(a)(2)(D).
Chen asserted that even though she was ordered removed in 1995, she was not
required to file a motion to reopen based on changed country conditions under 8
U.S.C. § 1229a(c)(7)(C)(ii) in order to file a successive asylum application. She
contended the birth of two children in the United States, in addition to a third child
born in China, would subject her to persecution if returned to China under the
country’s one-child policy, and, therefore, she was eligible for asylum and
withholding of removal based on these changed personal circumstances. The
Immigration Judge (IJ) denied Chen’s motion, and the Board of Immigration
Appeals (BIA) affirmed the IJ’s denial. Chen petitions this Court for review of the
BIA’s order dismissing her appeal from the IJ’s order denying her motion to file a
successive asylum application.1
1
While Chen’s motion to file a successive asylum application was pending before the
BIA, she filed a motion to remand her case to the IJ to present claims of withholding of removal
under the United Nations Protocol Relating to the Status of Refugees (Protocol) and the United
Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (CAT). The BIA construed the motion to remand as an untimely motion to reopen,
and it declined to address her claims under the Protocol and the CAT because she had not shown
changed circumstances in her country of nationality under 8 C.F.R. § 1003.2(c)(3)(ii). Chen
appeals the denial of the motion to remand; however, she raises no argument on appeal regarding
2
The issue whether an alien who is subject to a final order of removal is
required to satisfy the requirements for a motion to reopen in order to file a
successive asylum application is one of first impression in this Circuit. The BIA
held in In re C-W-L-, 24 I. & N. Dec. 346 (BIA 2007), that an alien who has been
ordered removed must file a motion to reopen to pursue a successive asylum
application. We now discuss the applicable statutory and regulatory provisions
and the BIA’s decision in C-W-L- to determine whether to defer to the BIA’s
decision.
I. STATUTES AND REGULATIONS
The Immigration and Nationality Act (INA) provides an alien may file an
application for asylum “within [one] year after the date of the alien’s arrival in the
United States[,]” as long as the alien has not “previously applied for asylum and
had such application denied.” 8 U.S.C. § 1158(a)(1), (a)(2)(B), (a)(2)(C).
However,
[a]n application for asylum of an alien may be considered,
notwithstanding [the time and number restrictions], if the alien
demonstrates to the satisfaction of the Attorney General either the
existence of changed circumstances which materially affect the
whether the BIA erred in analyzing her motion to remand as an untimely motion to reopen, nor
does she point to any error in the BIA’s determination that she failed to show changed
circumstances in her country of nationality sufficient to reopen the proceedings. See 8 C.F.R.
§ 1003.2(c)(3)(ii). As a result, we deny her petition as to the motion to remand.
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applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application . . . .
8 U.S.C. § 1158(a)(2)(D). The regulations define such “changed circumstances”
as including, but not limited to:
(A) Changes in conditions in the applicant’s country of nationality . . .
[or]
(B) Changes in the applicant’s circumstances that materially affect the
applicant’s eligibility for asylum, including changes in applicable
U.S. law and activities the applicant becomes involved in outside the
country of feared persecution that place the applicant at risk . . . .
8 C.F.R. § 1208.4(a)(4)(i).
At the same time, the INA provides an alien who is subject to a final order
of removal may file one motion to reopen her removal proceedings “within 90
days of the date of entry of a final administrative order of removal.” 8 U.S.C.
§ 1229a(c)(7)(A), (c)(7)(C)(i). However,
[t]here is no time limit on the filing of a motion to reopen if the basis
of the motion is to apply for relief under [8 U.S.C. §§ 1158 or
1231(b)(3)] and is based on changed country conditions arising in the
country of nationality or the country to which removal has been
ordered . . . .
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii) (providing the
restrictions on filing a motion to reopen shall not apply to motions “based on
4
changed circumstances arising in the country of nationality or in the country to
which deportation has been ordered”).
The Department of Justice’s (DOJ’s) initial proposed regulation
implementing the provision allowing for successive asylum applications provided
“[c]hanged circumstances arising after the denial of the application but before the
alien’s departure or removal from the United States shall only be considered as
part of a motion to reopen . . . .” 62 Fed. Reg. 444, 463 (proposed Jan. 3, 1997).
However, “[b]ecause of inconsistency between the formulation of changed
circumstances in [8 U.S.C. § 1158(a)(2)(D)] and the formulation in [8 U.S.C.
§ 1229a(c)(7)(C)], which permits an alien to file a motion to reopen beyond the
time limit normally applicable to such a motion, the Department . . . decided to
drop the requirement that . . . such exception may only be raised through a motion
to reopen.” 62 Fed. Reg. 10,312, 10,316 (Mar. 6, 1997).
In sum, if an alien who is subject to a final order of removal may file a
successive asylum application without satisfying the requirements for a motion to
reopen, then Chen would have to demonstrate changed circumstances, which are
defined more broadly than changed country conditions. See 8 U.S.C.
§ 1158(a)(2)(D); see also 8 C.F.R. § 1208.4(a)(4)(i). However, if the alien must
file a motion to reopen to pursue a successive asylum application, then Chen must
5
show changed country conditions because her motion was filed more than 90 days
after the date of entry of her order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i),
(c)(7)(C)(ii).
II. BIA HOLDING
In C-W-L-, the BIA held an alien who is subject to a final order of removal
must satisfy the requirements for a motion to reopen under 8 U.S.C.
§ 1229a(c)(7)(C)(ii) in order to file a successive asylum application. See 24 I. &
N. Dec. at 354. The BIA reasoned to interpret the successive asylum application
provision as “an independent basis for filing an asylum application at any time,
including when a final order of removal is in place, would render [8 U.S.C.
§ 1229a(c)(7)(C)(ii)] (and 8 C.F.R. § 1003.2(c)(3)(ii)) superfluous and would
negate the effect of regulations granting jurisdiction to [the BIA] and the
Immigration Courts.” Id. at 351.
The BIA also rejected the argument that the regulatory history related to the
DOJ’s proposed rule implementing 8 U.S.C. § 1158(a)(2)(D) meant a motion to
reopen was never required in order to pursue a successive asylum application. Id.
at 351-52. The BIA observed “[t]he cited regulatory history nowhere states that an
alien may file unlimited ‘successive asylum applications’ after the entry of a final
administrative order of removal without filing a motion to reopen.” Id. at 352.
6
Rather, the regulations implementing the successive asylum application provision
were silent at best on the issue of reopening, “most likely because the requirement
of an accompanying motion to reopen once a final order of removal has been
entered is clearly set forth in other parts of the statutory and regulatory scheme.”
Id. Moreover, there was a “preferable explanation” for the regulatory history that
reconciled the competing statutory provisions:
[T]he language at section [1158(a)(2)(D)] and 8 C.F.R. § 1208.4 that
permits an updated or successive asylum application based on
changed personal circumstances applies in conjunction with section
[1229a(c)(7)(C)] and 8 C.F.R. §§ 1003.2(c) and 1003.23(b) to permit
such an application at any time during proceedings before the entry of
a final order of removal or within the 90-day deadline for a motion to
reopen. Outside of those circumstances, changed country conditions
must be shown.
Id. at 352-53. As a result, the BIA held that an alien who is subject to a final order
of removal cannot file a successive asylum application, “except as part of a timely
and properly filed motion to reopen or one that claims that the late motion is
excused because of changed country conditions.” Id. at 354.
III. DISCUSSION
Chen argues the BIA erred in determining she was required to file a motion
to reopen under 8 U.S.C. § 1229a(c)(7)(C)(ii) in order to pursue a successive
asylum application under 8 U.S.C. § 1158(a)(2)(D). Chen asserts the BIA’s
7
holding in C-W-L- is erroneous and not entitled to Chevron2 deference. She
asserts the regulatory history related to the implementation of 8 U.S.C.
§ 1158(a)(2)(D) makes clear the DOJ intentionally omitted the requirement that
the exception for filing a successive application based on changed circumstances
be raised only through a motion to reopen. Chen further asserts the BIA’s
determination that an alien can only file a successive asylum application under 8
U.S.C. § 1158(a)(2)(D) if the alien has not been ordered removed renders the
provision meaningless. Additionally, assuming the BIA’s holding in C-W-L- did
not contravene an act of Congress, Chen maintains it constituted a substantive
change to the regulations which could have only been accomplished through
notice and comment hearings.3
“The BIA’s interpretation of immigration statutes are due Chevron
deference where appropriate.” Yang v. U.S. Att’y Gen., 494 F.3d 1311, 1317 (11th
Cir. 2007), cert. denied, 128 S. Ct. 2466 (2008). “Under Chevron, where
2
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778
(1984).
3
Chen presents no argument on appeal as to whether the BIA erred in denying her
untimely motion to reopen based on changed country conditions. Accordingly, she has
abandoned any argument that she demonstrated changed country conditions sufficient to reopen
her proceedings to file a successive asylum application. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on an issue, that
issue is abandoned.”).
8
Congress in a statute has not spoken unambiguously on an issue, the interpretation
of the statute by an agency entitled to administer it is entitled to deference so long
as it is reasonable.” Mazariegos v. Office of U.S. Att’y Gen., 241 F.3d 1320, 1327
n.4 (11th Cir. 2001) (citation omitted). “The degree of deference is especially
great in the field of immigration.” Id.
Congress did not unambiguously express its intent as to whether an alien
who is subject to a removal order must file a motion to reopen in order to pursue a
successive asylum application. The BIA’s interpretation represents a reasonable
balancing of the permissive language of 8 U.S.C. § 1158(a)(2)(D), which provides
only that the Attorney General may consider a successive asylum application
based on changed circumstances, and 8 U.S.C. § 1229a(c)(7)(C)(ii)’s explicit
restrictions on motions to reopen that apply to aliens who are subject to final
orders of removal. Moreover, the cross-reference to § 1158 in § 1229a(c)(7)(C)(ii)
supports the BIA’s interpretation the two provisions apply in conjunction, and
“[t]he reopening restrictions are best viewed as additional limitations on the ability
of aliens to use either asylum or withholding claims as a means of reopening final
orders of exclusion, deportation, or removal.” See C-W-L-, 24 I. & N. Dec. at 353.
A contrary interpretation of the statute that allowed an alien who is under a final
order of removal to file a successive asylum application based on changed
9
personal circumstances, after the expiration of the 90-day reopening period, would
render superfluous the restrictions that Congress has placed on untimely attempts
to reopen immigration proceedings.
Additionally, the BIA’s explanation for the regulatory history that
reconciles the competing statutory provisions is reasonable and entitled to
deference. The regulatory history does not state an alien may file unlimited
successive asylum applications after the entry of a final order of removal without
filing a motion to reopen. See id. at 352.
We defer to the BIA’s reasonable interpretation of these statutes.4 See
Mazariegos, 241 F.3d at 1327 n.4. Thus, we hold that an alien who has been
ordered removed cannot file a successive asylum application, “except as part of a
timely and properly filed motion to reopen or one that claims that the late motion
is excused because of changed country conditions.” See C-W-L-, 24 I. & N. Dec.
at 354. In doing so, we join seven other circuits in deferring to the BIA’s
4
The BIA’s holding in C-W-L- does not (1) render § 1158(a)(2)(D) meaningless or
(2) constitute a substantive change to the regulations, which could have only been accomplished
through notice and comment hearings. The BIA’s interpretation that §§ 1158(a)(2)(D)
and 1229a(c)(7)(C)(i) apply in conjunction with each other to permit a successive application
before the entry of a final order of removal or within the 90-day deadline for a motion to reopen
is reasonable. Additionally, § 1158(a)(2)(D) is not meaningless as it also applies to an alien who
is in removal proceedings, but has not filed an application for asylum until after one year from
her arrival in the United States. Further, the BIA’s holding is an interpretation and clarification
of the interplay of §§ 1158(a)(2)(D) and 1229a(c)(7)(C)(ii), and notice and comment were not
necessary.
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interpretation. See Liu v. Att’y Gen. of the U.S., 555 F.3d 145, 152 (3d Cir. 2009);
Wei v. Mukasey, 545 F.3d 1248, 1256 (10th Cir. 2008); Zhang v. Mukasey, 543
F.3d 851, 856 (6th Cir. 2008); Jin v. Mukasey, 538 F.3d 143, 152 (2d Cir. 2008);
Chen v. Mukasey, 524 F.3d 1028, 1033-34 (9th Cir. 2008); Zheng v. Mukasey, 509
F.3d 869, 872 (8th Cir. 2007); Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.
2007).
IV. CONCLUSION
Chen’s petition for review is denied. The BIA did not err in dismissing her
appeal from the IJ’s order denying her motion to file a successive asylum
application based on changed personal circumstances.
PETITION DENIED.
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