Jin v. Mukasey (2nd Cir. 08/15/08, docket nos. 05-5485-ag, 05-6367-ag, 06-0004-ag, 06-2998-ag)

WALKER, Cabranes, Sack (concurring)

In this consolidated appeal of 4 cases, the 2d Circuit joined the 3rd, 7th, 8th, and 9th Circuits in agreeing with the Board’s published decision in In re C-W-L, 24 I&N Dec. 346 (BIA 2007) that petitioners, who sought to file successive asylum applications more than 90 days following their final orders of removal, based on changed personal circumstances alone, could not do so without also showing changed country conditions, as required under the INA and regs when filing an untimely motion to reopen in conjunction with an asylum application. 

The court engaged in statutory interpretation, according Chevron deference to the Board’s decision, and found the Board’s interpretation of the law - that an untimely motion to reopen had to accompany a successive asylum application filed more than 90 after the final order to removal – was not arbitrary, capricious, or manifestly contrary to the statute.

Moreover, the court rejected the petitioners’ constitutional claims, finding that the Board’s interpretation violated neither due process nor equal protection. 

Finally, the court rejected the petitioners’ international law claims since neither the UN Protocol nor CAT created enforceable individual rights beyond what had been implemented in statutes and regs, and domestic statutes superseded any other conflicts with customary international law.

(detailed summary below)

Read opininion here:  

In each case, each individual petitioner had been denied asylum and ordered removed, yet each petitioner remained in the U.S. and some years later sought to file a successive asylum application based on changed personal circumstances, namely the birth of additional children in the United States, in contravention of China’s one-child policy. Petitioners’ motions to reopen, which accompanied the successive asylum applications were denied because they had been filed more than 90 days after a final order of removal and petitioners had not demonstrated changed country conditions.

The 2d Circuit, according Chevron deference to the Board’s decision in In re C-W-L, 24 I&N Dec. 346, analyzed the statutory and regulatory scheme to determine whether the Board’s interpretation was arbitrary, capricious, or manifestly contrary to the statute.  In doing so, the court sought to reconcile 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4 – which allow an individual to file a successive asylum application upon the demonstration of either changed personal circumstances or changed country conditions – with 8 C.F.R. § 1208.4(b)(3)(ii) (requiring that an asylum application filed after completion of removal proceedings be filed in conjunction with a motion to reopen) and 8 U.S.C. § 1229a(c)(7)(C)(ii) (allowing an untimely motion to reopen where there are changed country conditions).  The court then joined the 3d, 7th, 8th, and 9th circuits in concluding that the Board’s interpretation, requiring changed country conditions when filing a successive asylum application along with an untimely motion to reopen, was sound (the opinion does not mention whether any court has disagreed with the Board’s interpretation). 

The court’s analysis of the statutory and regulatory scheme:

(1) The court first noted that any tension between the above provisions is easily resolved:

“Any potential tension between 8 U.S.C. § 1208.4(a)(4)’s broad provision that changed country conditions or changed personal circumstances can support a new asylum application under § 1158(a)(2)(D) and the BIA’s determination that only changed country conditions can support a new asylum application filed by an alien under a final removal

order is easily resolved. As the Seventh Circuit noted in Cheng Chen, § 1158(a)(2)(D) “says nothing about the situation in which the applicant has already been ordered removed, the order has become final, and the time for reopening the removal proceeding

has expired.” 498 F.3d at 760.”

(2) Moreover, the petitioners’ interpretation would render § 1229a(c)(7)(C) superfluous by allowing an applicant to bypass more stringent procedural requirements for a motion to reopen by filing a successive asylum application.

(3) Third, the Board’s interpretation was consistent was its general administrative procedures, which require the filing of a motion to reopen following a final order of removal.

(4) Contrary to petitioners’ assertion, the Board’s interpretation does not leave without any avenue of relief aliens whose personal circumstances have genuinely changed more than 90 days afer a final removal order, because they could still file a joint motion to reopen with the government’s consent, and the Board could still open sua sponte.

(5) The regulatory history of 8 C.F.R. § 1208.4 does not ambiguously establish that petitioners were not required to file a motion to reopen with their successive asylum applications but is, at best, silent on the issue of reopening. 

(6) The Board’s interpretation is supported by policy considerations, particularly guarding against allowing aliens to “game the system.”   

“Were we to accept petitioners’ argument that an alien subject to such an order may file, more than ninety days after its entry, a second asylum application without a motion to reopen, and on the basis of only changed personal circumstances, we would be permitting extensive “gaming of the system” because those circumstances could be “entirely of [the alien’s] own making.” Id. Aliens would have every incentive to disregard their removal orders and remain in the United States long enough to change their personal circumstances (e.g., by having children or practicing a persecuted religion) …. Requiring a petitioner to file a motion to reopen in order to file a new asylum application, and therefore to show changed country conditions if the motion is untimely, provides one such restriction against manufacturing a case for asylum.”

The court’s analysis of petitioners’ constitutional challenges:

(1) The court rejected petitioners’ due process challenge, finding first that petitioners had not established any liberty or property interest in asylum warranting 5th Amendment protection, and second, that even if petitioners had a protectable interest, they had already been afforded due process through a full and fair removal hearing and the adjudication of their initial asylum application:

“We hold that an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum.”

“Any alien to whom the BIA’s determination would apply would have already had a full and fair removal hearing (which resulted in a final removal order) as well as the adjudication of their initial asylum application. The alien is afforded additional process by the opportunity to submit and offer evidence on a motion to reopen his earlier proceedings; if the motion is granted, a hearing will be held. 8 U.S.C. §

25 1229a(c)(7)(B).”

(2) The court rejected petitioners’ equal protection claim as well, finding no violation in differing treatment of individuals who remained in the U.S. following a final order of removal and individuals who complied with their removal order but later reentered illegally.  The latter class’s ability to apply for withholding without having to present evidence of changed country conditions, while the former class could not, did not violate equal protection because these two classes are not similarly situated. 

“Aliens who disregard a final removal order and remain in the country illegally are not similarly situated to aliens who have complied with a final order but subsequently reenter the United States and try to seek relief.” 

Moreover, assuming that the two classes were similarly situated, the claim would still fail as the differing treatment passes under rational basis review, which is the proper standard of review since the challenged classification is not protected, and there is no fundamental right at stake.

“There is a rational basis for distinguishing between aliens who comply with their final removal orders and those who do not, and for giving the former greater legal protection than the latter. As the government has argued, “[i]t is surely rational for Congress to treat scofflaws who disobey orders of removal less favorably than aliens who obey such orders.” Supplemental Br. for Resp’t in No. 06-2998-ag at 48. Congress may well have wanted to prevent abuse of the asylum process and to create an incentive for aliens to comply with final orders of removal. Furthermore, Congress could have determined that aliens who complied with their removal orders were less likely upon return to “game the system” by changing their personal circumstances, compared to aliens who deliberately disobeyed their orders and chose to remain in the country.”

The court’s analysis of petitioners’ international law claims:

(1) The court rejected petitioners’ argument that under the U.N. Protocol and CAT, the Board has an obligation to ensure that aliens will not be returned to a country where they are likely to face persecution or torture and thus their rights under international law were violated.  The court found that, since neither the U.N. Protocol nor CAT are self-executing, they do not afford petitioners private enforceable rights beyond those contained in their implementing statutes and regulations (the INA).  Moreover, even if the treaties were self-executing, there is a strong presumption against inferring individual rights from international treaties. 

(2) The court also rejected petitioners’ argument that the BIA’s interpretation violated customary international law, finding that petitioners had offered no evidence that the Board’s interpretation conflicted with principles of customary international law and that, further, even if there were a conflict, U.S. law would trump.

Based on all of the above, the 2d Circuit denied the petitioners for review.

Circuit Judge Sack concurred only to voice his one differing opinion: that when considering a due process challenge, the court need not have decided whether a protectable liberty or property interest was at stake when this question was unsettled and the second part of the analysis, whether existing procedures were adequate, was easily answered in the affirmative.  Rather, the court ought to have disposed of the due process challenge on the second part alone.  

Attorneys for petitioners:

Steven A. Mundie, Baron, Mundie & Shelkin, New York, NY, for petitioner Jin

Joshua Bardavid (Theodore N. Cox, on the brief), New York, NY, for petitioner Zheng

Yee Ling Poon (Robert Duk-Hwan Kim, on the brief), New York, NY, for petitioner Chen

Lorance Hockert, New York, NY, fo petitioner Zeng

Amicus curiae in support of petitioner Zeng:

Mark R. Von Sternberg, C. Mario Russell, Catholic Charities, New York, NY 

Comments

Add New Search

Write comment
Name:
Email:	do not notifynotify
Website:
Title:
UBBCode:	-color-aquablackbluefuchsiagraygreenlimemaroonnavyolivepurpleredsilvertealwhiteyellow -size-tinysmallmediumlargehuge
	Please input the anti-spam code that you can read in the image.

Powered by !JoomlaComment 3.12

Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.