Joseph v. Holder (7th Cir. Aug. 27, 2009)
WOOD Sykes Williams
Roome Joseph was a derivative asylum applicant on her parents' failed asylum application; her family returned to Pakistan after losing the case. She had Americanized, however, and did not want to return to Pakistan. She married an American; her family arranged a marriage for her in Pakistan, and planned to force her to marry upon her return. She sought reopening from the Board. The Board held that the new threat was not a changed circumstance arising in her country of origin. The Board Member interpreted 8 C.F.R. § 1003.2(c)(3)(ii) as applying only to “a dramatic change in the political, religious or social situation” and to exclude so-called “personal circumstances.” In so doing, the Board member relied on Raza v. Gonzales, 484 F.3d 125 (1st Cir. 2007), and Mabasa v. Gonzales, 455 F.3d 740 (7th Cir. 2006). The CtApp reversed.
1. First, addressing the level of deference required, the CtApp analyzed Auer v. Robbins, 519 U.S. 452 (1997) (establishing deference rules for agency interpretations of its own regulations), United States v. Mead Corp., 533 U.S. 218 (2001) (regarding deference appropriate to non-binding, non-precedential decisions), and Skidmore v. Swift, 323 U.S. 134, 140 (1944).
Just as varying degrees of deference are appropriate for regulations or other forms of guidance issued by agencies, so too are different levels of deference appropriate for interpretations of regulations offered by agencies. When the agency speaks formally, Auer holds that the agency’s interpretation is controlling unless it is plainly erroneous or inconsistent with the regulation. An off-the-cuff response to an interpretive question from the first person who answers the telephone would be quite a different matter. Here, we have a decision by a single Board member, which puts us in a middle ground between the two poles we have just described. Just like the ruling letters in Mead, it is unpublished and nonprecedential.
However, noting its decision in Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. 2006), which seemed to find Chevron deference appropriate to nonprecedential Board decisions, the Court did not make a clear statement about whether it was actually applying full Auer deference, or something less.
With respect to that question, we turn back to Auer. For the case before us, the question under Auer is whether the individual BIA member has interpreted the regulation in a way that is inconsistent with its language or that is plainly erroneous.
[CR: it appears that the CtApp might have meant to say that it did not need to decide whether to apply Auer deference, because the interpretation failed even under full Auer deference; but the decision is unclear on this point.]
2. The CtApp then held that the plain meaning of the reopening regulations does not limit reopening to dramatic changes in the country of origin, and does not exclude changes which are personal in nature. "The plain language of the regulation also does not restrict the concept of “changed circumstances” to some kind of broad social or political change in the country, such as a new governing party, as opposed to a more personal or local change." It addressed contrary case law, which was based on Chinese individuals who had children in the U.S., and found that that was directed toward a different concern.
In [Cheng Chen v. Gonzales, 498 F.3d 758 (7th Cir. 2007)], a Chinese man who had been deported to China did not leave the United States but instead married and fathered two children here. He then tried to use this as the basis for claiming changed circumstances in China, asserting that he would be subject to forcible sterilization for violating China’s one child policy were he to return.
This court rejected his argument because the changed circumstances did not arise in China but instead arose from his actions in the United States. It was irrelevant that his claim involved family affairs or “personal circumstances.” But it is easy to imagine a different scenario under which the BIA would have been required to consider his argument. For example, suppose China had no limitation on the number of children one could have and Chen had fathered two children here in the United States. If, after he is ordered deported, China suddenly institutes a one-child policy and threatens forced sterilization for those who have not complied, no matter where in the world their children were born, circumstances in the country of nationality would indeed have changed. This is so even though the policy addresses a supposedly “personal” circumstance. The difference is that the change would have arisen in China, not in the United States.
The consideration animating the decision in Cheng Chen is that “[i]t makes no sense to allow an alien who manages to elude capture by the immigration authorities for years after he has been ordered to leave the country, and has exhausted all his legal remedies against removal, to use this interval of unauthorized presence in the United States to manufacture a case for asylum.” Id. at 760. This is a worthwhile concern, but it does not apply to Joseph. She has in no way manufactured her case for changed circumstances; she alleges instead that she either faces a would-be suitor who might abduct her and force her to marry in Pakistan, a hostile family that might return to Pakistan to abduct her and physically abuse her, or a country in which she faces severe harassment—possibly rising to the level of persecution to which the authorities would turn a blind eye—as a single Christian woman without familial support. None of these is a manufactured circumstance, and all arise in Pakistan.
N.B.: NIJC and pro bono attorney Steven Mueller, of Mayer, Brown, represent Ms. Joseph.