Rsf v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2019
• Docket: 17-70533
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RSF, No. 17-70533

Petitioner, Agency No. A089-097-721

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 14, 2019 Submission Deferred February 15, 2019 Resubmitted December 12, 2019 San Francisco, California

Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.

RSF, a citizen and native of El Salvador, seeks review of the Board of

Immigration Appeals (“BIA”) finding that she is ineligible to apply for asylum

under Department of Homeland Security (“DHS”) regulations. Because the parties

are familiar with the facts, we do not repeat them here. We have jurisdiction under

8 U.S.C. § 1252(a), and we deny the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We are bound by our decision in Perez-Guzman v. Lynch, 835 F.3d 1066

(9th Cir. 2016). In Perez-Guzman, this court concluded DHS regulations were a

reasonable interpretation of asylum statute § 1158(a)(1) and reinstatement bar

§ 1231(a)(5) under Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842 (1984), where those regulations prevented individuals

subject to reinstated removal orders from applying for asylum but permitted them

to seek withholding. 835 F.3d at 1073-82.

RSF contends Perez-Guzman does not control because courts are not bound

by prior decisions that did not consider the issue presented in a later case.

However, a Ninth Circuit “panel is not free to disregard the decision of another

[Ninth Circuit] panel . . . simply because . . . the arguments have been

characterized differently or more persuasively by a new litigant.” United States v.

Ramos-Medina, 706 F.3d 939 (9th Cir. 2013). With one exception, RSF’s appeal

does not present a different issue than those raised in Perez-Guzman—it presents

different arguments regarding the same issue.

RSF's surviving challenge is that DHS regulations unreasonably limit the

availability of § 1158(a)(2)(D) “to lawbreakers only.” When reviewing a legal

question involving the interpretation of the Immigration Nationality Act (“INA”)

and its corresponding regulations, we follow the deferential procedures prescribed

in Chevron. Valadez-Munoz v. Holder, 623 F.3d 1304, 1308 (9th Cir. 2010). Under

2 Chevron, we first examine the statute to determine whether Congress has directly

spoken to the question at issue. Valencia v. Lynch, 811 F.3d 1211, 1214 (9th Cir.

2016) (citing Chevron, 467 U.S. at 842-43). If the statutory provision is silent or

ambiguous, we then consider whether the agency’s interpretation is “‘based on a

permissible construction of the statute.’” Id. at 1215 (quoting Chevron, 467 U.S. at

843). The court defers to the agency’s interpretation so long as it is not “‘arbitrary,

capricious, or manifestly contrary to the statute.’” Garcia v. Holder, 659 F.3d

1261, 1266 (9th Cir. 2011) (quoting Chevron, 467 U.S. at 844).

RSF fails to show that limiting the application of § 1158(a)(2)(D) renders

the DHS regulations unreasonable under Chevron’s second step. There are

multiple categories of asylum applicants who could take advantage of the changed

circumstances exception within § 1158(a)(2)(D) other than those who ignored

removal orders, such as previously removed noncitizens who apply for asylum

without entering the United States.

PETITION DENIED.