Yan Yang v. Barr
Opinion of the Court
We are asked to determine whether the Immigration and Nationality Act's ("INA") exception for late filing applies only to changed circumstances underpinning a successful claim, or whether the changed circumstances permit an application for asylum on multiple bases, including bases that are unrelated to the changed circumstances. We hold that the plain language of the statute unambiguously permits an applicant to raise multiple claims in her asylum application, even if the changed circumstance relates only to one proffered basis for asylum. Accordingly, we grant the petition for review and remand the application to the Board of Immigration Appeals ("BIA") for the limited purpose of granting Yang's application for asylum.
BACKGROUND
Yan Yang was born in China in 1973. In September 1992, Yang met her husband, Shen Zhonghua, while she was working in a garment factory in Shenzhen. On July 6, 1994, Yang and Zhonghua returned to his hometown of Wutong Town to register their marriage with the government. Yang and her husband were both required to submit to a mandatory physical examination at a hospital before the local government would register their marriage. This exam revealed that Yang was "pregnant without prior authorization" since she and Zhonghua were not yet married. Certified Administrative Record ("CAR") at 536. Yang was immediately forced to have an abortion.
Yang entered the United States on a tourist visa on June 3, 2002, but remained in the United States after her temporary visa expired and gave birth to her U.S.-citizen son in October 2004. In July 2012, Yang began attending a Christian church and was baptized into the church on September 23, 2012.
On her own initiative, prior to any removal proceedings, Yang affirmatively filed an application for asylum on October 17, 2012 on two bases: her forced abortion in China and her recent conversion to Christianity. Though asylum applications must be filed within one year of the applicant's arrival in the United States,
On December 11, 2012, however, she was served with a Notice to Appear charging her with removability for overstaying her visa. On March 11, 2015, the Immigration Judge ("IJ") denied her application for asylum. The IJ determined that the exception for "changed circumstances" applied only to Yang's religious asylum claim, *30effectively severing the application into its two separate claims. The IJ found that Yang was credible on all counts, but that there was insufficient evidence of persecution of Christians in China to grant the asylum application on that basis. The IJ did not consider Yang's asylum claim based on her forced abortion because the IJ determined that the claim was not timely filed, but the IJ found Yang's story credible and granted her withholding of removal on the basis of that claim. On September 20, 2016, the IJ's decision was affirmed in all respects by the BIA.
DISCUSSION
"When the BIA does not expressly adopt the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, this Court may consider both the IJ's and the BIA's opinions for the sake of completeness." Zaman v. Mukasey,
The government urges us to defer to the BIA's decision insofar as that decision has the "power to persuade." Skidmore v. Swift & Co.,
*31I. Plain Language of the Statute
"Our analysis begins with the text" of Section 1158(a)(2)(D), "and we look to both the language itself and the specific context in which that language is used." Merit Mgmt. Grp., LP v. FTI Consulting, Inc., ___ U.S. ___,
A. "An application for asylum"
In our first look at the plain language of the statute, we observe that the relevant section clearly states that "[a]n application for asylum of an alien may be considered. . . if the alien demonstrates . . . changed circumstances which materially affect the applicant's eligibility for asylum."
This reading of the plain language is reinforced by the specific context in which this provision appears. In aid of this effort, we examine the section headings and organizational structure of the relevant section of the INA. "Although section headings cannot limit the plain meaning of a statutory text, they supply cues as to what Congress intended." Merit Mgmt.,
Indeed, the relevant section of the INA is titled "Authority to apply for asylum."
(1) In general. - Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) [regarding the inspection of arriving aliens].5
The exclusion from consideration of subsequent asylum applications and applications filed after the one-year deadline does not apply in two specific circumstances:
An application for asylum of an alien may be considered notwithstanding [the bars for late filings or successive filings], 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 in [the paragraph establishing the one-year filing deadline].
The key observation for purposes of this appeal is that the exception is to the bar to considering applications, not claims. Recall that the "Exceptions" subsection is part of the larger section titled "Authority to apply for asylum" and that the language of the relevant provision titled "Changed circumstances" addresses only the "application for asylum," as opposed to the specific claim or claims within an application. Even if we were to substitute the word "request" for "application," as the dissent speculates Congress intended, the observation remains the same: the exception is to the bar to considering "requests," not claims. An individual may make one "request" for asylum because she fears religious persecution and because she was forced to have an abortion. Indeed, there is simply no basis for a claim-specific limitation in the statutory text itself, which refers only to applications for asylum. Or, more technically, the dependent clause *33containing the statutory bars derogates from the main clause providing for the consideration of an application for asylum, with no additional limiting language. Rather than grapple with this textual clarity, the dissent fixates on the context of the statute and its view of the statute's true purpose to call into question the "logic" of the majority view. But in doing so, and to generate ambiguity, the dissent puts its interpretation of legislative history before plain text.
Indeed, an examination of "the broader statutory structure," Merit Mgmt.,
B. "Materially affect the applicant's eligibility for asylum"
The government argues that "changed circumstances must relate to the applicant's eligibility for asylum" and asserts that this paraphrase of the statutory language demands that we deny Yang's petition for review. We disagree. To state the matter very directly, though an asylum applicant is indisputably required to demonstrate a changed circumstance that "materially affect[s] the applicant's eligibility for asylum," Section 1158(a)(2)(D), the plain language of this requirement is simply that the changed circumstance must "materially affect" an applicant's eligibility for asylum. And surely that is precisely what occurred in this case. The IJ determined that Yang had in fact demonstrated such a changed circumstance, because it is impossible to be religiously persecuted on the grounds of Christian faith before becoming a Christian.
Despite the dissent's worry that "all an asylum seeker need do" to avoid the one-year bar is "allege changed circumstances," not every "changed circumstance" will render an applicant eligible for asylum; indeed, very few will. But so long as the applicant can demonstrate a change in circumstance that materially affects her eligibility to apply for asylum, there is simply nothing in the plain statutory language to suggest-let alone demand-that only that claim may be reviewed. As the Ninth Circuit noted in Vahora v. Holder, on which the dissent relies, the changed *34circumstances exception to the one-year filing requirement was "intended to be broad," not limited.
Because we have carefully read the statutory text and find the meaning of the statutory language clear and unambiguous, we have no need to look further. Our search for meaning thus begins and ends with the statutory language itself. See Marvel Characters, Inc. v. Simon,
II. Yang's Application for Asylum
As dictated by the statutory language governing asylum applications, Yang's untimely application fell within the "time limit" exception to the general rule permitting foreign nationals physically present in the United States to apply for asylum. Yang, however, successfully argued before the IJ and the BIA that her application also fell within the "changed circumstances" exception to the exception, because she had recently converted to Christianity. Yang's asylum application presented two possible bases for asylum: religious persecution and her forced abortion in China. The IJ bifurcated Yang's asylum application and determined that her forced abortion claim was "time-barred" while her religious persecution claim was timely. CAR at 45-46. The IJ thus considered "only her religion-based asylum claim." CAR at 46.
In doing so, the IJ found that "the respondent testified credibly and adequately corroborated her testimony" regarding both her forced abortion and her religious conversion. CAR at 45. The IJ also found that "the respondent has not demonstrated a well-founded fear of future persecution on account of her religion" and thus denied her asylum claim. CAR at 47. The IJ, however, granted Yang withholding of removal under
As Cao recounts, in 1996 Congress amended the definition of "refugee" in the INA to make forced abortions and other population control measures an explicit ground for asylum:
For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo *35involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion . . . .
Apart from the timeliness issue, the government has raised no other challenge to Yang's application for asylum on the basis of her forced abortion in China. Because we have determined that it was error for the IJ to bifurcate Yang's asylum application and that the "changed circumstances" of her religious conversion made her entire asylum application timely filed, and because the IJ determined Yang was credible on the forced abortion claim, Yang's application for asylum must therefore be granted
CONCLUSION
The plain language of the statute compels our conclusion today that the "changed circumstances" exception to the one-year deadline for an asylum application refers to the entire asylum application, rather than the individual claim. We observe that this reading of the statutory language merely provides an opportunity for an application to be considered by the IJ. The applicant is still required to demonstrate asylum eligibility before that status will be granted.
Yang's petition for review is thus GRANTED and her underlying asylum application is REMANDED to the BIA for the limited purpose of granting the application.
For reasons explained in Section II, the government abandoned any additional challenges to Yang's eligibility for asylum on the basis of her forced abortion in China. Having decided the one issue on appeal, there is no other issue to be decided.
The applicant must file her application within a "reasonable period" in light of the changed circumstances.
Regarding the issue before us on appeal, there are no decisions from other circuit courts of appeals that directly address it, and there are no precedential BIA opinions on it. Indeed, the BIA has been inconsistent in its non-precedential interpretations of § 1158(a)(2)(D). Compare CAR at 45-46, with In re Chen & Wu, Nos. A089 918 765 & A089 918 766 (B.I.A. Apr. 13, 2012).
Section 1158 of the INA addresses asylum and is divided into five sections: Authority to apply for asylum (subsection a), Conditions for granting asylum (subsection b), Asylum status (subsection c), Asylum procedure (subsection d), and Commonwealth of the Northern Mariana Islands (subsection e). The relevant provision to this appeal appears in subsection a, titled "Authority to apply for asylum."
The immediately preceding section of the INA-Section 1157-addresses refugees. The "In general" portion of Section 1158 appears designed at least in part to clearly distinguish asylees from refugees and to codify the right to apply for asylum.
These exceptions are titled "Safe third country," "Time limit," and "Previous asylum applications," respectively.
The final portion of the "Exceptions" section addresses unaccompanied minors and specifies that the safe third country and time limit bars "shall not apply" to those applicants.
Dissenting Opinion
The majority takes comfort in the language of
The changed-circumstances exception is a measure of legislative grace; it excuses the one-year limit where recent changes materially affect the alien's asylum eligibility. But "eligibility" is a discrete matter. It is particular to the facts and circumstances of each claim for asylum. The majority's reading of the statute, in contrast, extends that act of grace to cover all claims so long as any one claim meets the changed-circumstances exception, and it does so based on a strained reading of the phrase "application for asylum."
The majority's interpretation is, at best, one of two plausible interpretations. When that is the case, the statute is ambiguous, and we may consider other interpretive tools-including Congressional intent. Natural Resources Defense Council, Inc. v. Muszynski,
An application for asylum of an alien may be considered, notwithstanding [time limitations], 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 *36or extraordinary circumstance relating to the delay in filing an application within the [statutory time frame].
The majority concludes that "application" refers to the physical document that a putative asylee submits to the Department of Homeland Security. Supra at 33 ("the asylum application itself contemplates that an applicant may apply for asylum on multiple bases, listing various possible claims for asylum . . . and instructing the applicant to `check the appropriate box(es)' to explain why they are applying for asylum or withholding of removal" (quoting Dep't of Homeland Security Form I-589, https://www.uscis.gov/i-589)). The problem is that is not how the statute uses the word.
"[I]dentical words and phrases within the same statute should normally be given the same meaning." FCC v. AT & T, Inc.,
I do not, nor could I, dispute that the physical form that an asylum seeker must submit instructs the applicant to indicate the claim or claims upon which she is seeking asylum. Supra at 33 (referencing Dep't of Homeland Security Form I-589, https://www.uscis.gov/i-589). In the narrowest sense, then, "an application for asylum" is not claim-specific: the form expressly invites an applicant to check as many boxes as she sees fit to assert multiple claims on various grounds. The form may allow multiple claims in one application, but there are at least three problems with reading the statute in this way.
First, there is no textual reason to assume that Congress was referring to a physical document when it used the phrase "application for asylum." Indeed, the more natural reading is to give the word "application" the same meaning in this section of the statute as it has in other sections. Substitute the word "application" with the word "request" in section 1158(a)(2)(D) and the text reads: "A request for asylum of an alien may be considered notwithstanding [time limitations], if the alien demonstrates . . . the existence of changed circumstances. . . ."
*37or "request" is a strong textual signal that, in order to evade the one-year bar, an asylum-seeker must demonstrate that her untimely claim has been materially affected by changed circumstances.
Second, giving the phrase "application for asylum" the meaning that the majority ascribes to it ignores that § 1158(a)(2)(D) explicitly references § 1125(b), which, in turn, describes the process for inspection of applicants for admission and which assumes that the process is claim-specific. See § 1225(b)(1)(B)(v) (defining "credible fear of persecution" in the context of an "application for asylum" as "a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title" (emphasis added)).
Third, the statute uses the phrase "eligibility for asylum," which refers to a determination that an applicant "is a refugee within the meaning of section 1101(a)(42)(A)."
[A]ny person who is outside [his or her home country] and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Refugee claims are issue-specific: a person may be a racial refugee, a religious refugee, a nationality-based refugee, a social refugee, or a political refugee. To obtain refugee status, a person must establish that she has a complete claim based on at least one of those categories; a half-baked claim based on religious persecution does not cross the finish line with an extra push from a somewhat-persuasive showing of political persecution. See Osorio v. I.N.S.,
Specifically, give "eligibility" its dictionary definition: "qualified to participate or be chosen." Eligible, Merriam-Webster, https://www.merriam-webster.com/dictionary/eligible (July 18, 2018). Thus, a person is "eligible for asylum" if the person is "qualified to be chosen for refugee status." A person cannot be "qualified to be chosen for refugee status" unless she can show changed circumstances in her home country that materially affect her successful showing that she is a refugee. This reading of the statute makes sense-it provides a safe haven from the one-year time bar for applicants who, after being in the United States for more than a year, realize that they cannot return to their home country because they have since become refugees and going back now would be dangerous.
A final point on ambiguity. The majority treats asylum determinations as a two-step process, which they say stems from the statute's organizational structure. Step one relates to an alien's ability to file an application, while step two involves the merits of that application. Thus, they conclude, because the one-year bar appears in the statutory section entitled "Authority to apply for asylum," the exceptions to the bar *38must only come into play at step one-the filing of an application. Supra at 33. I acknowledge that structurally, this makes some sense.
But that reading creates a structural problem as well. The majority does not address the fact that, under their interpretation, the one-year bar (the rule) is swallowed by the exception (changed circumstances): all an asylum seeker need do to escape the one-year bar for a stale asylum claim is allege changed circumstances for an unrelated claim. As an organizational matter, this is problematic. "Congress. . . does not, one might say, hide elephants in mouseholes." Whitman v. Am. Trucking Assns., Inc.,
The majority may disagree that my interpretation of the statute is the correct reading, but it is at least a plausible interpretation. Indeed, the majority acknowledges that "the BIA has been inconsistent in its non-precedential interpretations of § 1158(a)(2)(D)." Supra at 30 n.3. The agency has issued two decisions interpreting the statute; one supports the majority view and the other mine. Compare In re Chen & Wu, A089918765 & A089918766 (B.I.A. April 13, 2012) (unpublished) (concluding that "[t]he plain language of [§ 1158(a)(2)(D)] requires the [alien] to demonstrate changed circumstances that materially affect her eligibility for asylum" and that "[e]ligibility for asylum is not dependent on a specific underlying basis of the asylum claim") with In re Yang, A205621131, at 7-8 (B.I.A. March 11, 2015) (unpublished) (reproduced at CAR 45-45) (reaching the opposite conclusion). That the BIA has been inconsistent in unpublished decisions, though not binding on us, is a good signal that the statute has more than one plausible reading. In short, the statute is ambiguous. Muszynski,
Moreover, even if the majority were correct about the plain language of the statute, I would still be forced to dissent. In the "rare and exceptional circumstances. . . where the application of the statute as written will produce a result demonstrably at odds with the intentions of its drafters," Congressional intent controls. Demarest v. Manspeaker,
In general, the purpose of a statute of limitations is to encourage the timely resolution of disputes before evidence is "obscured by the passage of time." See United States v. Morgan,
But Congress was also mindful that life is not static. Country conditions can change with an election, a coup, or social instability; and people can experience life-changing conversions of conscience and faith. These kinds of changes are what Congress had in mind when it passed the changed-circumstances exception. Senator Hatch, a major proponent of the one-year bar and the changed-circumstances exception, noted that the legislation was intended to address "situations like those in which the situation in the alien's home country may have changed, the applicant obtains more information about likely retribution he or she might face if the applicant returned home, and other situations that we in Congress may not be able to anticipate at this time." 142 Con. Rec. S11838-40 (Sept. 30, 1996) (statement of Sen. Hatch). The exception, therefore, was designed to capture cases where an immigrant's situation changed in an unpredictable way, making his or her return unsafe. It built in a measure of fairness to asylum seekers by acknowledging the unpredictable nature of prejudice and oppression and ensuring that should an immigrant's personal convictions or home-country conditions change, the time limit will give way even if those changes arise after the one-year bar expires. It was, in other words, intended to create a narrow exception, not to override the one-year bar any time an asylum seeker has multiple claims.
The facts of this case illustrate the failing of the majority's reading of the statute. The Immigration Judge ("IJ") found that Yang established changed circumstances based on her conversion to Christianity. The issue for Yang, however, is that the IJ also found that she was not entitled to asylum on the basis of her conversion claim because "[t]he evidence does not support a well-founded fear of persecution in China on account of [Yang's] religion." CAR at 62. Yang's Form I-589 contains two claims: forced abortion and religious persecution. She is excused for not filing her religious persecution claim within one year of entry into the United States because her conversion occurred years later, but that changed circumstance had no "material[ ] [e]ffect [on] her eligibility for asylum" predicated on her forced abortion. There is no factual or legal connection between Yang's forced abortion in 1994 and her conversion to Christianity in 2012. Yang had a strong asylum claim for forced abortion when she arrived in the United States in 2002, but for some reason she did not raise it until 2012; no circumstances related to this claim have changed.
The obvious purpose of the time bar was to prevent cases where an immigrant enters the United States and only files for asylum years later. The majority's view of the statute abrogates that choice made by Congress. It holds that any claim that is dependent on changed circumstances also revives claims that would be time barred if they were raised solely on their own. The reason for excusing one claim is extended to cover another for which there is no excuse. What is the logic in combining a long since time-barred claim with a distinct, unrelated claim that is predicated on changed conditions affecting only that "new" claim? Why would Congress do that? The majority has not offered any explanation for why Congress would revive stale claims like Yang's, and it has failed to do so for good reason. There is none.
I realize that my view of this statute would deny Yang asylum despite her credible testimony. The IJ did, however, grant her withholding of removal based on the *40forced abortion, and she will therefore remain in the United States with her son, should she so desire. Citizenship will not be an option for Yang, but she will not be deported. Yang's circumstances warrant empathy. The INA, however, already contains a safety valve to protect people in her position. See
See also § 1255(a) (an immigrant's status may be adjusted by the Attorney General if "(1) the alien makes an application for such an adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed" (emphasis added));
Concurring Opinion
In response to the Court's careful textual analysis of § 1158(a)(2)(D), my colleague in dissent asks, "Why would Congress do that?" Dissent Op. at 39. We could just as easily ask, why not? No rule of interpretation makes congressional mercy an oxymoron. Nor is there a canon that permits us to ignore the plain language of an immigration statute like § 1158(a)(2)(D) just because those words happen to favor noncitizens.
The Government and the dissent suggest that relying on the usual or literal meaning of the text of § 1158(a)(2)(D) leads to a result at odds with the "obvious purpose" of Congress. Dissent Op. at 38, 39. They in effect resort to the canon of absurdity, without using the word. Yet we reserve that rarest of canons for the truly absurd, that is, "where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result and where the alleged absurdity is so clear as to be obvious to most anyone." Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA,
The dissent offers yet another reason to avoid the plain language of § 1158(a)(2)(D), divining ambiguity where there is none to justify its turn to legislative history. After acknowledging that the Court's interpretation of the text is plausible, Dissent Op. at 35, the dissent asserts that Congress "has given [the word `application'] a broad, ordinary meaning: an application is a `request,'" Dissent Op. at 36. Defining "application" to mean "request," the dissent contends, supports an alternative plausible interpretation. Namely, substituting the term "request" for the term "application" in § 1158(a)(2)(D) "makes § 1158(a)(2)(D) claim-specific." Dissent Op. at 36.
But the idea that Congress intended "application" to mean "request" in § 1158 rests on an interpretive flaw, ignores the actual statutory use of both terms, and upends our long-held view that "[a]s a general matter, the use of different words within the same statutory context strongly suggests that different meanings were intended." United States v. Maria,
Of course, the Court's interpretation of § 1158(a)(2)(D) would persevere even if one were to read "application" and "request" to mean the same thing. I agree entirely with the Court, therefore, that rewriting § 1158(a)(2)(D) to refer to a "request" rather than an "application" would not make the provision claim-specific. A "request" for a specific thing, like an "application" for a specific thing, may have more than one underlying basis. If in a criminal case you "request" a hearing to dismiss the indictment against you, the request can cover a variety of different grounds: Fifth or Sixth Amendment, say, as well as an alleged statutory violation, and so on. The Court correctly points out that, in the same way, Yang may have made one "request" for asylum on multiple bases.
So whether the terms "request" and "application" mean very slightly different things or the same thing, that would not lead to two different plausible interpretations of the clear text in this case.
Reference
- Full Case Name
- Yan YANG, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
- Cited By
- 2 cases
- Status
- Published