Cite as 24 I&N Dec. 346 (BIA 2007) Interim Decision #3589
In re C-W-L-, Respondent
Decided October 31, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien who is subject to a final order of removal is barred by both statute and regulation
from filing an untimely motion to reopen removal proceedings to submit a successive asylum
application under section 208(a)(2)(D) of the Immigration and Nationality Act, 8 U.S.C.
§ 1158(a)(2)(D) (2000), based on changed personal circumstances.
FOR RESPONDENT: Theodore N. Cox, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Evalyn Douchy, Assistant Chief
Counsel
BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; GRANT and HESS, Board
Members.
HURWITZ, Acting Vice Chairman:
This case is before us on remand from the United States Court of Appeals
for the Second Circuit pursuant to a February 4, 2006, Stipulation and Order
for Dismissal. Based on the parties’ stipulated remand order, the court vacated
our March 8, 2005, decision denying as untimely the respondent’s
December 28, 2004, motion to reopen our decision of March 6, 2003.1
This
remand provides an opportunity to address “whether the [respondent], as an
alien with a final order of removal, may file a successive asylum application
under [section 208(a)(2)(D) of the Immigration and Nationality Act,] 8 U.S.C.
§ 1158(a)(2)(D) based on changed personal circumstances.” Both parties have
filed briefs on remand. The motion will be denied.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a male native and citizen of China who entered the United
States without a valid entry document in February 1990. He was issued a
Notice to Appear (Form I-862) on June 16, 1997. The respondent was married
We construed the respondent’s “Motion to File Successive Asylum Application” as a
motion to reopen.
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in June 1998 to a lawful permanent resident alien of the United States. The
couple has three United States citizen daughters born July 21, 1999,
November 29, 2000, and November 30, 2003.
On March 21, 2001, an Immigration Judge denied the respondent’s
application for asylum and withholding of removal based on his fear of
persecution on account of (1) his past interactions with birth control officials2
and (2) the birth of his two children in the United States. We affirmed the
Immigration Judge’s decision on March 6, 2003. On December 20, 2004, the
respondent filed a “Motion to File Successive Asylum Application
Pursuant to 8 C.F.R. § 208.4,” arguing that because of the birth of his third
child in the United States, he could show a well-founded fear of persecution,
i.e., involuntary sterilization, in China on account of his opposition to coercive
population control policies.
In his motion, the respondent specifically argued that he need not file a
motion to reopen in order to submit his successive asylum application for our
consideration, and that none of the typical time and numerical limitations on
such motions applied to him. We denied this motion as untimely on March 8,
2005, and noted that none of the exceptions to the timeliness requirements for
motions to reopen applied. Specifically, we noted that the untimeliness of the
motion to reopen was not excused by “changed circumstances arising in
the country of nationality.” Section 240(c)(7)(C)(ii) of the Act, 8 U.S.C.
§ 1129a(c)(7)(C)(ii) (2000); see also 8 C.F.R. § 1003.2(c) (2005). The
respondent appealed this decision to the Second Circuit, which issued the
above-noted remand order.
The respondent’s argument is premised on the assertion that section
208(a)(2)(D) of the Act, 8 U.S.C. § 1158(a)(2)(D) (2000), standing alone, is
a basis for filing an additional asylum application, notwithstanding the fact that
he is currently under an order of removal and is barred by section
240(c)(7)(C)(ii) from filing an additional asylum application, except where
accompanied by a timely motion to reopen or justified by changed country
conditions. Because the Act’s various provisions on when, where, and how to
file an asylum application cannot be read in harmony to permit the
respondent’s interpretation, we must reject his argument and deny his motion.
We note that the respondent’s claimed past interactions with birth control officials were
on behalf of his aunt, who was allegedly forced to submit to an involuntary abortion. The
Immigration Judge found that the respondent’s testimony as to his past scuffles with birth
control officials was not credible. We affirmed this finding, which was not the subject of
any appeal. There is accordingly no claim of past persecution at issue in this case.
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II. ANALYSIS
On remand, we must consider the relationship between sections
208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act and the corresponding regulations
that implement those sections of the statute. Our interpretation of the Act is
governed by settled principles of statutory construction. Generally, as a first
step, we must look to the actual language used in the statute. It is well settled
that the “‘starting point must be the language employed by Congress’” and that
we must assume “‘that the legislative purpose is expressed by the ordinary
meaning of the words used.’” INS v. Phinpathya, 464 U.S. 183, 189 (1984)
(quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)); see also
INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); Matter of Ruiz-Romero,
22 I&N Dec. 486 (BIA 1999). To resolve the question before us, we must
therefore look to the language and design of the statute as a whole. K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). In so doing, we must give
effect, if possible, to all parts of a statute. Kungys v. United States, 485 U.S.
759 (1988).
We also are bound by the implementing regulations that correspond to the
relevant portions of the statute that control the issue presented here. Matter of
Ponce de Leon, 21 I&N Dec. 154, 158 (BIA 1996; A.G., BIA 1997). These
regulations have the force of law. United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 265 (1954). Regulations, like statutes, must be
interpreted to give effect to the entire regulatory scheme. See Matter of
Villarreal-Zuniga, 23 I&N Dec. 886, 889 (BIA 2006). In this context, we note
that the purpose of the regulations, like statutory provisions, is evidenced by
the words chosen by the Attorney General. See Matter of Artigas, 23 I&N
Dec. 99, 100 (BIA 2001). “This Board and the Immigration Judges ‘must give
effect to the unambiguously expressed intent’ of the Attorney General.” Id.
(quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843 (1984)). If the statute is silent or ambiguous with respect
to the specific issue addressed by the regulation, the question becomes
whether the agency regulation is a permissible construction of the statute.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at
843. An agency’s interpretation of its own regulations is entitled to
“controlling weight unless it is plainly erroneous or inconsistent with the
regulation.” See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,
414 (1945).
We turn now to the statutory provisions that control this case, namely
sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the Act. The authority for an
348Cite as 24 I&N Dec. 346 (BIA 2007) Interim Decision #3589
alien to file an asylum claim lies in section 208(a) of the Act.3
As the
respondent acknowledges, the Act provides that an alien may file only one
claim for asylum, which must be filed within 1 year of his or her arrival in the
United States. See sections 208(a)(2)(B)-(C) of the Act.4 Exceptions to this
general rule state that the 1-year filing deadline and the prohibition on refiling
after the denial of an asylum application do not apply “if the alien
demonstrates to the satisfaction of the Attorney General either the existence
of changed circumstances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in filing an
application within the period specified.” Section 208(a)(2)(D) of the Act. The
regulations provide a noninclusive list of examples of changed circumstances
for purposes of section 208(a)(2)(D). See 8 C.F.R. § 1208.4(a)(4)(i) (2007).5
Section 240(c)(7)(C)(ii) of the Act was originally enacted as part of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div.
C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”). This legislation
was intended, in part, to curb abuse of the asylum process and other parts of
removal proceedings.6 Section 240(c)(7) applies to situations like the one at
bar, where an alien seeks to reopen proceedings in which he previously was
ordered removed from the United States. It provides that “[a]n alien may file
3 The regulations implementing the Act provide that an asylum application may be filed
affirmatively or defensively. 8 C.F.R. § 1208.4(b) (2007). An affirmative application is
filed with the Department of Homeland Security prior to the initiation of removal
proceedings, whereas a defensive application is filed after the initiation of proceedings.
4
Specifically, the Act notes that the general rule permitting an alien to file an asylum
application does not apply if the alien did not file the application “within 1 year after the date
of the alien’s arrival in the United States,” or if the alien “has previously applied for asylum
and had such application denied.” Sections 208(a)(2)(B)-(C) of the Act.
5 These examples include changed country conditions, changes in the applicant’s
circumstances that materially affect his or her eligibility for asylum, changes in United States
law, or activities that the applicant becomes involved in outside the country of feared
persecution. 8 C.F.R. §§ 1208.4(a)(4)(i)(A)-(B).
6 We have observed that in revamping the immigration statutes, including provisions
regarding asylum, Congress intended to curb the practice by which “aliens extended their
stays in this country to accrue time to gain immigration benefits.” See Matter of
Mendoza-Sandino, 22 I&N Dec. 1236, 1243 (BIA 2000) (observing that conferees on the
IIRIRA noted that various forms of relief available under the immigration laws were
“exploited” by aliens seeking to extend their time in the United States); see also Wang v.
Board of Immigration Appeals, 437 F.3d 270, 274 (2d Cir. 2006) (noting the “iron[y]” of a
situation where aliens illegally in the United States “were permitted to have a second and
third bite at the apple” by claiming fear of persecution in China on account of the birth of
United States citizen children).
349 Cite as 24 I&N Dec. 346 (BIA 2007) Interim Decision #3589
only one motion to reopen proceedings under this section,” except for motions
to reopen relating to battered spouses, children, and parents. Section
240(c)(7)(A) of the Act. The motion to reopen must be filed within 90 days
of the date of entry of a final administrative order of removal. See section
240(c)(7)(C) of the Act. With regard to asylum applications, neither the
90-day motion filing deadline nor any other time limit applies when the
purpose of the motion to reopen is to make an asylum claim “based on
changed country conditions arising in the country of nationality or the country
to which removal has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the previous
proceeding.” Section 240(c)(7)(C)(ii) of the Act.
The regulations generally track and provide guidance on implementing the
statutory language of both sections 208(a)(2)(D) and 240(c)(7)(C)(ii) of the
Act. For example, with regard to asylum claims, the regulations confer
jurisdiction over an asylum claim on the Immigration Court or the Board,
depending upon the stage of the proceedings. An asylum application filed
“[d]uring exclusion, deportation, or removal proceedings” may be filed with
the “Immigration Court having jurisdiction over the underlying proceeding.”
8 C.F.R. § 1208.4(b)(3)(i). However, “[a]fter completion of exclusion,
deportation, or removal proceedings” the regulations make clear that an
asylum application may only be filed with the Immigration Court in
conjunction with a “motion to reopen pursuant to 8 CFR part 1003 where
applicable.” 8 C.F.R. § 1208.4(b)(3)(ii) . Specifically, the regulations provide
that to request further relief, a motion to reopen must be filed with the last
body that issued an administratively final order of removal. 8 C.F.R. § 1003.2
(setting forth provisions allowing the Board to reopen proceedings); 8 C.F.R.
§ 1003.23(b)(1) (2007) (prohibiting reopening by an Immigration Judge where
jurisdiction is vested with the Board). The regulations expressly provide that
the time and numerical limitations on motions to reopen will not bar asylum
or withholding of removal applications where the application is based on
changed country conditions. 8 C.F.R. §§1003.2(c)(3)(ii), 1003.23(b)(4)(i).
The respondent moved to file a new asylum application with the Board
based on the birth of his third child some 21 months after the entry of a final
administrative order of removal. Yet he filed no motion to reopen
proceedings, a prerequisite to our taking up any issue arising in his case, given
the entry of the removal order against him. The plain terms of the statute and
regulations set forth above do not permit us to consider the “successive”
asylum application, because it is not based on “changed country conditions,”
as required by section 240(c)(7)(C)(ii) of the Act. Section 208(a)(2)(D), on
which the respondent relies for his premise that changes in personal
circumstances justify the new asylum application, simply does not apply to a
situation where an asylum applicant has already been ordered removed.
350Cite as 24 I&N Dec. 346 (BIA 2007) Interim Decision #3589
Accord Chen v. Gonzales, 498 F.3d 758 (7th Cir. 2007). The respondent’s
motion, insofar as it can be construed as a motion to reopen, is untimely, and
the late motion is not supported by changed country conditions. See Zheng v.
U. S. Dep’t of Justice, 416 F.3d 129, 130 (2d Cir. 2005). Moreover, even if
the respondent might later argue that the Immigration Court is a proper
tribunal to first adjudicate a motion to file a successive asylum application,7
the regulations require that all asylum applications filed with the Immigration
Court after the close of removal, deportation, or exclusion proceedings be
accompanied by a properly filed motion to reopen. 8 C.F.R. § 1208.4(b)(3)(ii).
To hold that section 208(a)(2)(D) of the Act is an independent basis for
filing an asylum application at any time, including when a final order of
removal is in place, would render section 240(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 this Board and the Immigration Courts. See
Williams v. Taylor, 529 U.S. 362, 404-05 (2000). It would be highly unlikely
that Congress would have intended to provide an alien under a final order of
removal with a avenue for relief–such as a successive asylum claim based
solely on a change in personal circumstances–but no procedural basis for its
exercise. The only way for us to acquire jurisdiction over a petition for further
relief (such as a “successive asylum application”) is through a properly filed
motion to reconsider or reopen.8
Such a motion would, of course, only be
cognizable if we were the last body to enter or affirm the final administrative
decision ordering removal. See 8 C.F.R. § 1003.2(a) (requiring a party to file
a written motion to reopen “any case in which a decision has been made by the
Board”); see also Matter of Susma, 22 I&N Dec. 947 (BIA 1999); Matter of
Mladineo, 14 I&N Dec. 591 (BIA 1974). Similarly, if the Immigration Court
had been the last tribunal to enter or affirm an order of removal, it would not
have jurisdiction under the Act to entertain the respondent’s successive asylum
application without a motion to reopen. 8 C.F.R. § 1208.4(b)(3).
We are not persuaded by the respondent’s resort to regulatory history to
support his interpretation of the statute. In his brief, the respondent indicates
that the Department of Justice’s initial proposed rule implementing section
208(a)(2) of the Act (imposing the 1-year deadline and a numerical limit on
asylum applications), expressly stated that “[c]hanged circumstances arising
after the denial of the application . . . shall only be considered as part of a
motion to reopen.” Inspection and Expedited Removal of Aliens; Detention
and Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 Fed. Reg. 444, 463 (proposed Jan. 3, 1997) (to have been
7 Cf. Chen v. Bureau of Citizenship and Immigration Servs., 203 Fed. Appx. 403, 405 (2d
Cir. 2006).
The circumstances permitting an alien to file a motion to reconsider are not present here.
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codified at 8 C.F.R. § 208.4(a)(2)(i)). The interim rule adopted after the notice
and comment period eliminated the express requirement of a motion to reopen,
a change that, the respondent argues, means that a motion to reopen is never
required to accompany any new asylum application filed because of changed
personal circumstances. See Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 Fed. Reg. 10,312, 10,316 (Mar. 6, 1997).9
We must disagree with the respondent’s interpretation, as it conflicts with
the plain terms of the statute and regulations. “A provision that may seem
ambiguous in isolation is often clarified by the remainder of the statutory
scheme . . . because only one of the permissible meanings produces a
substantive effect that is compatible with the rest of the law.” United Sav.
Ass’n of Texas v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 371
(1988). The 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. At best, the
cited regulatory provisions implementing section 208(a)(2)(D) of the Act are
silent 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. We
cannot read into the regulatory history a jurisdictional grant that conflicts with
the clear terms of the statute and regulations. There is another preferable
explanation for the Department’s rulemaking history described above that does
not nullify the statutory language governing motions to reopen removal
proceedings. Simply, the language at section 208(a)(2)(D) and 8 C.F.R.
§ 1208.4 that permits an updated or successive asylum application based on
9 In comments explaining the change, the Department stated the following:
Regarding the changed circumstances exception in section 208(a)(2)(D) [of the Act],
the Department has . . . decided to provide a better definition of this exception by
indicating that the definition may include either changed conditions in the home
country or changes in objective circumstances relating to the applicant in the United
States, including changes in applicable U.S. law, that create a reasonable possibility that
the applicant may qualify for asylum. Because of inconsistency between the
formulation of changed circumstances in section 208(a)(2)(D) and the formulation in
section 240(c)(5)(ii) of the Act, which permits an alien to file a motion to reopen
beyond the time limit normally applicable to such a motion, the Department has
decided to drop the requirement that, for purposes of the prohibition in section
208(a)(2)C) [sic], such exception may only be raised through a motion to reopen.
62 Fed. Reg. at 10,316.
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changed personal circumstances applies in conjunction with section
240(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.
This interpretation is in line with the Department’s contemporaneous
comments accompanying the interim rule implementing IIRIRA–the same
interim rule cited by the respondent. In fact, as to the proposed regulations,10
a commenter “suggested that the time and numerical limitations for motions
to reopen should be broader than changed country conditions.” 62 Fed. Reg.
at 10,321. In response, as noted above, the Department noted that it had
decided to “drop the requirement that the changed circumstances exception to
the one year filing deadline in section 208(a)(2) of the Act be raised only
through a motion to reopen” and concluded that “the standard for reopening
an asylum case provided in 8 C.F.R. § 3.23(b)(4) is entirely consistent with the
asylum reopening standard provided in IIRIRA.” Id. This commentary makes
clear that the statutory bars that are exempted by sections 208(a)(2)(D) are
separate from, and apply principally at an earlier stage of proceedings than, the
90-day reopening provisions in both the statute and regulations. Matter of
G-C-L-, 23 I&N Dec. 359 (BIA 2002) (withdrawing from our previous policy
set forth in Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998), of granting
untimely motions to reopen by applicants claiming eligibility for asylum based
solely on coercive populations control policies after the Act was amended to
classify certain victims of such policies as refugees). The 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.
As a whole, published Federal court decisions that have squarely
addressed the issue appear to defer to our decision to deny so-called “motions
to file successive asylum applications,” although some courts have, in dicta,
left open the question whether changed personal circumstances could be a
sufficient reason to allow an alien to file successive asylum applications
after a final order of removal. Compare Chen v. Gonzales, supra, at 760,
Wang v. Board of Immigration Appeals, 437 F.3d 270, 274 (2d Cir. 2006), and
Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005), with He v. Gonzales,
2007 WL 2472546, at *4, n.9 (9th Cir. Sept. 4, 2007), Chen v. Gonzales, 490
F.3d 180, 184 (2d Cir. 2007), Haddad v. Gonzales, 437 F.3d 515, 518-19 (6th
Cir. 2006), and Guan v. Board of Immigration Appeals, 345 F.3d 47, 49 (2d
Cir. 2003). The latter cited cases, considering the possibility that successive
10 The relevant sections of the regulations were renumbered after publication of the interim
rule and are now at 8 C.F. R. §§ 1003.2(c) and 1003.23(b).
353 Cite as 24 I&N Dec. 346 (BIA 2007) Interim Decision #3589
asylum applications are allowed under relevant statutes and regulations, do not
address the basis for the Board’s jurisdiction–or that of the Immigration
Court–to consider a successive asylum application in proceedings that are
administratively final when the standards for reopening are not met, nor the
basis for a statutory interpretation that would permit disregard of section
240(c)(7)(C) of the Act and its implementing regulations.
III. CONCLUSION
We conclude that the respondent’s successive asylum application cannot be
considered by us, 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. Neither the Board nor the Immigration Judge has
jurisdiction to consider a new asylum claim in proceedings that are
administratively final and where the standards for reopening are not satisfied.
Accordingly, the respondent’s “Motion to File Successive Asylum
Application” must be denied. To the extent that the respondent intends a
motion to reopen for the purpose of filing a successive asylum application, that
motion will also be denied as untimely and not supported by “changed country
conditions arising in the country of nationality or the country to which removal
has been ordered.” Section 240(c)(7)(C)(ii) of the Act.
Finally, although the respondent argues that a remand is appropriate because
his wife’s petition for an alien relative has been approved, he would have to
move to reopen proceedings before we can consider any application for relief
on this basis, since he is currently under a final order of removal. As discussed
above, such a motion to reopen would be untimely. Furthermore, without
evidence of a currently available visa, the respondent has not shown that he is
eligible for any relief from removal based on approval of a petition for an alien
relative visa filed on his behalf. Consequently, reopening on this basis would
be inappropriate, even if a timely motion were filed. Accordingly, the
respondent’s motion will be denied.
ORDER: The motion is denied
354