June 18, 2018

Tenth Circuit: Attorney General’s Interpretation of the Immigration and Nationality Act’s Reinstatement Provision is Reasonable

The Tenth Circuit Court of Appeals issued its opinion in R-S-C v. Sessions on Wednesday, September 6, 2017.

This case presents a conflict between the provisions of the Immigration and Nationality Act (INA). The asylum section of the INA states that any alien, irrespective of such alien’s status, may apply for asylum. By contrast, the reinstatement provision mandates that a previously deported alien who illegally reenters the United States will have his prior removal order reinstated and is not eligible and may not apply for any relief. The Attorney General has determined that the latter subsection prevails and an illegal reentrant with a reinstated removal order is not eligible for asylum relief.

The Tenth Circuit Court of Appeals was asked to decide whether the Attorney General’s interpretation of the INA is a reasonable interpretation of the statutory scheme.

The background of this case involves R-S-C, a woman originally from Guatemala, who had come to the United States without inspection three times to escape threats and extortion against her in Guatemala. The Tenth Circuit found no merit in the argument that she did not illegally reenter the United States, as she expressly declined to contest the determination that she reentered the United States illegally, and there is no evidence in the record suggesting that she presented herself at the border in search of an immigration officer to file an asylum application, as she had previously claimed.

The Tenth Circuit evaluated whether the Attorney General’s interpretation was reasonable. The court determined this through a two-step framework. First, the Court examined whether Congress has directly spoken to the precise question at issue. The court concluded that the statutory command is ambiguous, as there is conflict between the asylum and reinstatement provisions. The Circuit found that Congress did not clearly resolve the question.

Second, because the statute is silent or ambiguous with respect to the specific issue, the question for the Circuit is whether the Attorney General’s answer is based on a permissible construction of the statute. If so, the court must accept the Attorney General’s construction of the statute. The Circuit rejected an argument that the Attorney General failed to perceive the ambiguity in the statute and felt compelled by Congress when interpreting the statute. The court found that the Attorney General’s silence on the statutory interplay does not mean the Attorney General missed the ambiguity. In rejecting this argument, the court considered whether the interpretation was reasonable, and determined it was, offering five reasons.

First, it is reasonable for the Attorney General to conclude that the reinstatement provision means what it says: that certain aliens are not eligible for “any relief.” It is also reasonable to conclude that the reference to “any relief” naturally means all forms of relief, including asylum.

Second, it is not unreasonable for the Attorney General to decide that the reinstatement provision is more specific than the asylum provision, as the Attorney General focused on the section of the INA that carves out a subset of persons for special treatment, rather than another section that establishes rules for a particular kind of relief that apply across the board.

Third, the Attorney General could reasonably conclude that the reinstatement provision operates with stronger force than the asylum section, as it speaks in mandatory terms, requiring the Attorney General to deny relief to aliens with reinstated removal orders.

Fourth, the asylum provision expressly authorizes the Attorney General to establish additional limitations and conditions, under which an alien shall be ineligible for asylum. By contrast, the Attorney General had no discretion to decide that some kinds of relief are immune from the eligibility bar after a removal order is reinstated. Thus, the Attorney General could have reasonably concluded that the reinstatement provision reflects a stronger congressional command than the asylum section.

Fifth, the Attorney General’s determination reasonably furthers the Illegal Immigration Reform and Immigrant Responsibility Act’s (IIRIRA) purpose in strengthening the reinstatement provision. Congress passed IIRIRA to replace a previous, more lenient, regime. IIRIRA foreclosed discretionary relief from the terms of the reinstated order. This suggests that Congress intended to fortify the effect of the reinstatement provision, and the Attorney General’s interpretation is faithful to that purpose.

In conclusion, the Circuit found that the INA does not clearly answer the question of whether an illegal reentrant with a reinstated removal order may apply for asylum. The Attorney General, however, has reasonably interpreted the ambiguous statutory scheme in concluding that such an alien is not eligible for asylum relief. The court, therefore, defers to the Attorney General’s interpretation.

The Tenth Circuit Court of Appeals DENIED the petition for review.

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