Perez-Guzman v. Lynch, No. 13-70579 (9th Cir. 2016)
Annotate this CasePetitioner, a native and citizen of Guatemala, seeks review of the BIA's affirmance of the IJ's decision declining to consider his application for asylum and denial of withholding of removal and protection under the Convention Against Torture (CAT). The parties agree that the court must remand to the BIA on petitioner's claims for withholding of removal and protection under CAT in light of intervening circuit precedent. The court held that Congress has not clearly expressed whether 8 U.S.C. 1231(a)(5), enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) prevents an individual subject to a reinstated removal order from applying for asylum under 8 U.S.C. 1158. However, the court concluded that the Attorney General’s regulation preventing petitioner from applying for asylum under these circumstances is a reasonable interpretation of the statutory scheme, and is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Accordingly, the court remanded for the BIA to reconsider petitioner's withholding and CAT claims.
Court Description: Immigration. The panel granted in part and denied in part a petition for review of a decision of the Board of Immigration Appeals. The panel held that the Attorney General’s regulation, 8 C.F.R. § 1208.31, precluding an individual subject to a reinstated removal order from applying for asylum, is a reasonable interpretation of the statutory scheme and is therefore entitled to deference at step two of the framework established under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The panel also remanded the petitioner’s withholding of removal and Convention Against Torture claims in light of intervening authorities, including Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), and Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013). The panel concluded that Congress has not directly spoken to the interplay between 8 U.S.C. § 1158(a)(1) (permitting “[a]ny alien” to apply for asylum “irrespective of such alien’s status”) and 8 U.S.C. § 1231(a)(5) (barring aliens subject to reinstated removal orders from “any relief under” chapter 12 of title 8 of the U.S. Code, which includes the asylum statute). At Chevron step two, however, the agency’s reconciliation of these two provisions through 8 C.F.R. § 1208.31(e) was reasonable, and hence entitled to deference. PEREZ-GUZMAN V. LYNCH 3 The panel also held that the petitioner’s procedural challenges to § 1208.31(e), under the Administrative Procedure Act, were untimely because they were not brought within six years after adoption of the regulation.
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