Rony Perez-Guzman v. Loretta E. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONY ESTUARDO PEREZ-GUZMAN, No. 13-70579

AKA Ronnie Perez-Guzman,

Petitioner, Agency No.

A200-282-241

v.

LORETTA E. LYNCH, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 4, 2016

Pasadena, California

Filed August 31, 2016

Before: Raymond C. Fisher, Milan D. Smith, Jr.,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Fisher

2 PEREZ-GUZMAN V. LYNCH

SUMMARY*

Immigration

The panel granted in part and denied in part a petition for

review of a decision of the Board of Immigration Appeals.

The panel held that the Attorney General’s regulation,

8 C.F.R. § 1208.31, precluding an individual subject to a

reinstated removal order from applying for asylum, is a

reasonable interpretation of the statutory scheme and is

therefore entitled to deference at step two of the framework

established under Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). The panel also

remanded the petitioner’s withholding of removal and

Convention Against Torture claims in light of intervening

authorities, including Henriquez-Rivas v. Holder, 707 F.3d

1081 (9th Cir. 2013) (en banc), and Madrigal v. Holder, 716

F.3d 499 (9th Cir. 2013).

The panel concluded that Congress has not directly

spoken to the interplay between 8 U.S.C. § 1158(a)(1)

(permitting “[a]ny alien” to apply for asylum “irrespective of

such alien’s status”) and 8 U.S.C. § 1231(a)(5) (barring aliens

subject to reinstated removal orders from “any relief under”

chapter 12 of title 8 of the U.S. Code, which includes the

asylum statute).

At Chevron step two, however, the agency’s

reconciliation of these two provisions through 8 C.F.R.

§ 1208.31(e) was reasonable, and hence entitled to deference.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PEREZ-GUZMAN V. LYNCH 3

The panel also held that the petitioner’s procedural

challenges to § 1208.31(e), under the Administrative

Procedure Act, were untimely because they were not brought

within six years after adoption of the regulation.

COUNSEL

Eric M. Fraser (argued), Osborn Maledon, P.A., Phoenix,

Arizona, for Petitioner.

Tim Ramnitz (argued); Anthony C. Payne, Senior Litigation

Counsel; Joyce R. Branda, Acting Assistant Attorney

General; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

Keren Zwick (argued), National Immigrant Justice Center,

Chicago, Illinois; Stephen W. Manning, Immigrant Law

Group P.C., Portland, Oregon; Robin L. Goldfaden, Lawyers’

Committee for Civil Rights of the San Francisco Bay Area,

San Francisco, California; for Amicus Curiae American

Immigration Lawyers Association, Lawyers’ Committee for

Civil Rights of the San Francisco Bay Area, and National

Immigrant Justice Center.

4 PEREZ-GUZMAN V. LYNCH

OPINION

FISHER, Circuit Judge:

Rony Estuardo Perez-Guzman (Perez), a native and

citizen of Guatemala, entered the United States without

inspection for the first time in 2011. The Department of

Homeland Security (DHS) apprehended and removed him

after expedited removal proceedings. Perez reentered the

United States in 2012 and was again apprehended by DHS,

which reinstated the earlier removal order. After an asylum

officer found Perez had established a reasonable fear of being

tortured if removed to Guatemala, he was referred to an

Immigration Judge (IJ) for consideration of his applications

for withholding of removal and protection under the

Convention Against Torture (CAT). Because Perez was

subject to a reinstated removal order, the IJ declined to

consider his application for asylum. The IJ denied on the

merits his requests for withholding of removal and protection

under CAT, and the Board of Immigration Appeals (BIA)

affirmed.

The parties agree that we must remand to the BIA on

Perez’s claims for withholding of removal and protection

under CAT in light of intervening circuit precedent. The

issue we consider here is whether an individual subject to a

reinstated removal order is eligible to apply for asylum under

the Immigration and Nationality Act (INA), as amended by

the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (IIRIRA). We hold Congress has not clearly

expressed whether 8 U.S.C. § 1231(a)(5), enacted by IIRIRA,

prevents an individual subject to a reinstated removal order

from applying for asylum under 8 U.S.C. § 1158. We

conclude, however, that the Attorney General’s regulation

PEREZ-GUZMAN V. LYNCH 5

preventing Perez from applying for asylum under these

circumstances is a reasonable interpretation of the statutory

scheme, and is entitled to deference under Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). Accordingly, we remand to the BIA only for

reconsideration of Perez’s withholding and CAT claims.

I. Background

A. Factual Background

Perez alleges that three incidents in his home county of

Guatemala make him eligible for asylum, withholding of

removal and CAT protection. First, Perez was struck by a

stray bullet fired by members of a gang extorting a local

businessman and gave a statement to police about the gang

members involved in the shooting. After they were released

from jail, the gang members visited Perez’s house while he

was away.

Second, Perez discovered his name appeared on a “death

squad kill list” compiled by a group of police officers and

soldiers who engaged in extrajudical law enforcement by

executing suspected gang members, guerillas and other

criminals. Other individuals on the list were later killed,

including Perez’s cousin. Shortly after his cousin’s murder,

Perez fled his hometown.

Finally, Perez was abducted by individuals purporting to

be Guatemalan police officers. The kidnappers blindfolded

Perez, tied him to a chair and beat him before realizing they

had abducted the wrong man. The kidnappers discussed

killing Perez, but released him with the threat that they would

kill him if he reported the attack.

6 PEREZ-GUZMAN V. LYNCH

Perez left Guatemala and entered the United States for the

first time in June 2011, but was stopped by the Border Patrol.

He later testified before the IJ that the Border Patrol agents

never asked him whether he feared returning to Guatemala,

but only “came out with a paper” for him to sign certifying

that he had entered the country illegally. Records of a brief

interview conducted during the expedited removal process,

however, note Perez answered in the negative when asked

whether he feared returning to Guatemala. He was removed

to Guatemala in July 2011.

Perez reentered the United States and was apprehended a

second time in January 2012. DHS reinstated his earlier

removal order. Because Perez expressed a fear of returning

to Guatemala, he was referred to an asylum officer, who

found his fear of persecution or torture was reasonable and

referred him to an IJ for further proceedings.

Before the IJ, Perez sought asylum, withholding of

removal and protection under CAT. The IJ, however,

concluded Perez was ineligible for asylum because he had

previously been removed and DHS had reinstated his earlier

removal order. The IJ also denied Perez’s applications for

withholding of removal and CAT protection, concluding he

had not established a likelihood that he would either be

persecuted on a protected ground or tortured with government

consent or acquiescence if returned to Guatemala. The BIA

affirmed the denial of withholding of removal and CAT

protection on the merits. It explained it would not reach the

merits of Perez’s asylum claim and that “[b]ecause the

Department of Homeland Security . . . reinstated a prior order

of removal in this case, the Immigration Judge’s

PEREZ-GUZMAN V. LYNCH 7

consideration was limited to the applicant’s request for

withholding of removal and CAT protection. See 8 C.F.R.

§ 1208.31(e).”

B. Legal Background

Perez’s claim turns on the interplay between two

provisions of the INA – 8 U.S.C. § 1158, the asylum statute,

and 8 U.S.C. § 1231(a)(5), the reinstatement bar.1

The Refugee Act of 1980 directed the Attorney General

to establish procedures for granting asylum and enacted the

initial version of § 1158, which afforded any alien the right to

apply for asylum irrespective of immigration status. See

Refugee Act of 1980, Pub. L. No. 96-212, § 208, 94 Stat. 102

(codified as amended at 8 U.S.C. § 1158). Although

Congress later amended the statute to prevent individuals

convicted of aggravated felonies from receiving asylum, see

Immigration Act of 1990, Pub. L. No. 101-649, § 515, 104

Stat. 4978, the law governing asylum applications remained

largely unchanged until the enactment of IIRIRA, Pub. L. No.

104-208, Div. C, 110 Stat. 3009 (1996).

In its post-IIRIRA form, § 1158(a)(1) retains its original

scope, stating that “[a]ny alien who is physically present in

the United States . . . irrespective of such alien’s status, may

apply for asylum in accordance with this section.”

§ 1158(a)(1) (emphasis added). A few statutory exceptions

qualify this broad eligibility, barring asylum applications

from individuals who can be resettled in another country, see

§ 1158(a)(2)(A), failed to timely apply, see § 1158(a)(2)(B),

1

Unless otherwise noted, all citations are to title 8 of the United States

Code.

8 PEREZ-GUZMAN V. LYNCH

or previously were denied asylum, see § 1158(a)(2)(C).

Section 1158(a)(2)(D) creates an exception to the exceptions

in subsections (a)(2)(B) and (C), stating in relevant part that

an individual may make a second application for asylum

notwithstanding a previous denial if he shows changed

circumstances affecting his eligibility for asylum. See

§ 1158(a)(2)(D).

IIRIRA also revised the effect of reinstatement, the

summary removal process whereby the government reinstates

and executes an individual’s previous removal order rather

than initiating a new removal proceeding against him. Before

IIRIRA, only a subset of individuals who illegally reentered

the country were subject to reinstatement of their earlier

removal orders; the rest were placed in ordinary removal

proceedings, even on subsequent reentries. See Fernandez-

Vargas v. Gonzales, 548 U.S. 30, 33–35 (2006). In addition,

individuals in the “limited class of illegal reentrants” subject

to reinstatement could still “seek some varieties of

discretionary relief” from their reinstated removal order. Id.

at 34. With IIRIRA, however, Congress replaced the old

reinstatement provisions with “one that toed a harder line,”

and “[u]nlike its predecessor, . . . applie[d] to all illegal

reentrants, explicitly insulate[d] the [reinstated] removal

orders from review, and generally foreclose[d] discretionary

relief from the terms of the reinstated order.” Id. at 34–35

(noting the availability of withholding of removal). This

reinstatement bar, codified at § 1231(a)(5), states

[i]f the Attorney General finds that an alien

has reentered the United States illegally after

having been removed or having departed

voluntarily, under an order of removal, the

prior order of removal is reinstated from its

PEREZ-GUZMAN V. LYNCH 9

original date and is not subject to being

reopened or reviewed, the alien is not eligible

and may not apply for any relief under this

chapter, and the alien shall be removed under

the prior order at any time after the reentry.

§ 1231(a)(5) (emphasis added). “[T]his chapter” refers to

chapter 12 of title 8 of the U.S. Code, which contains both the

asylum statute and reinstatement bar.

Consistent with this section, the Attorney General

promulgated 8 C.F.R. § 1208.31(e),2 which states in relevant

part that “[i]f an asylum officer determines that an alien

[subject to a reinstated removal order] has a reasonable fear

of persecution or torture, the officer shall so inform the alien

and issue a . . . [r]eferral to [an] Immigration Judge, for full

consideration of the request for withholding of removal only.”

8 C.F.R. § 1208.31(e) (emphasis added).3 The notice

published in the Federal Register stated in its summary that

“[f]or persons subject to reinstatement, . . . the rule

establishes a screening mechanism” similar to the one used in

expedited removal proceedings. See Regulations Concerning

the Convention Against Torture, 64 Fed. Reg. 8478, 8478

2

The regulation was originally promulgated as 8 C.F.R. § 208.31(e), but

the administrative regulations governing immigration proceedings were

recodified in 2003 to reflect the transfer of the Immigration and

Nationality Service’s functions to DHS. See Aliens and Nationality;

Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824

(Feb. 28, 2003). For convenience, we refer to the regulation as 8 C.F.R.

§ 1208.31(e) throughout this opinion.

3

A separate regulation permits an individual subject to a reinstated

removal order to seek CAT protection as well. See 8 C.F.R.

§ 1208.16(c)(4).

10 PEREZ-GUZMAN V. LYNCH

(Feb. 19, 1999). The notice went on to explain that the new

process was intended “to rapidly identify and assess” claims

for withholding of removal and CAT protection made by

individuals subject to reinstated removal orders and other

forms of expedited removal to “allow for the fair and

expeditious resolution of such claims without unduly

disrupting the streamlined removal processes applicable to

these aliens.” Id. at 8479; see also id. at 8485 (discussing

8 C.F.R. § 1208.31 specifically). The notice further stated the

agency’s conclusion that such individuals, including “aliens

subject to reinstatement of a previous removal order under

[§ 1231(a)(5)],” were “ineligible for asylum” but “may be

entitled to withholding of removal” or CAT protection. Id. at

8485. The notice identified a number of statutes giving the

agency authority to promulgate regulations to govern asylum

and withholding procedures, including § 1158. See id. at

8487 (listing the authorities for 8 C.F.R. Part 208 generally).

II. Discussion

As noted, the parties agree remand is appropriate on

Perez’s withholding of removal and CAT claims in light of

intervening circuit precedent. The only disputed question is

whether Perez is entitled to a remand on his asylum claim as

well. We conclude he is not.

A. Exhaustion

At the outset, we reject the government’s contention that

Perez failed to exhaust his argument for asylum eligibility

before the BIA. Although we generally lack jurisdiction to

review a final agency order unless administrative remedies

have been exhausted, see Alvarado v. Holder, 759 F.3d 1121,

1127 (9th Cir. 2014), exhaustion is not required where it

PEREZ-GUZMAN V. LYNCH 11

would be futile to raise a particular issue before the agency.

Here, the BIA rejected Perez’s asylum claim under 8 C.F.R.

§ 1208.31(e), which bars individuals in reinstatement

proceedings from applying for asylum. Because the BIA had

no authority to disregard this regulation, exhaustion would

have been futile. See Coyt v. Holder, 593 F.3d 902, 905 (9th

Cir. 2010) (“Because the BIA has no authority to declare a

regulation invalid, ‘the exhaustion doctrine does not bar

review of a question concerning the validity of an INS

regulation because of a conflict with a statute.’” (quoting

Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1273 (9th Cir.

1996))); Espinoza-Gutierrez, 94 F.3d at 1273 (observing that

an argument contesting the validity of an agency’s own

regulations will “necessarily . . . fall[] on deaf ears” because

the BIA “simply has no authority to invalidate a regulation

that it is bound to follow”).

B. Asylum

Perez argues the asylum statute’s language permitting

“[a]ny alien” to apply for asylum “irrespective of such alien’s

status” unambiguously permits him to apply for asylum

notwithstanding his reinstated removal order. § 1158(a)(1).

The government, in response, argues the reinstatement bar’s

statement that an individual subject to a reinstated removal

order “is not eligible and may not apply for any relief under

this chapter” unambiguously makes Perez ineligible to apply

for asylum, a form of relief arising under the same chapter.

§ 1231(a)(5). The question is whether § 1158’s permission

to apply for asylum or § 1231(a)(5)’s denial of any relief

falling within the same chapter governs the class of

individuals who, like Perez, are subject to reinstated removal

orders.

12 PEREZ-GUZMAN V. LYNCH

To answer this question of statutory interpretation, we

follow the framework laid out in Chevron. “Under the first

step, we determine ‘whether Congress has directly spoken to

the precise question at issue.’” Humane Soc’y of U.S. v.

Locke, 626 F.3d 1040, 1054 (9th Cir. 2010) (quoting

Chevron, 467 U.S. at 842–43). If the intent of Congress is

clear, our inquiry ends and we give effect to Congress’

unambiguously expressed intent. See id. If, on the other

hand, Congress has not spoken to a particular issue or the

statute is ambiguous, we may consider the responsible

agency’s interpretation of the statutory scheme. “[I]f the

implementing agency’s construction is reasonable, Chevron

requires a federal court to accept the agency’s construction of

the statute, even if the agency’s reading differs from what the

court believes is the best statutory interpretation.” Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 980 (2005).

In addressing this question, we are not writing on a clean

slate. Three other circuits have already considered the

interplay between § 1158 and § 1231. Each has concluded

that individuals subject to reinstated removal orders may not

apply for asylum relief. See Jimenez-Morales v. U.S. Att’y

Gen., 821 F.3d 1307, 1310 (11th Cir. 2016); Ramirez-Mejia

v. Lynch, 794 F.3d 485, 491 (5th Cir. 2015) (relying on

§ 1231(a)(5)’s plain language, as well as relevant regulations

and case law); Herrera-Molina v. Holder, 597 F.3d 128,

138–39 (2d Cir. 2010) (discussing § 1231(a)(5)’s text as well

as relevant circuit precedent and regulations). Although we

find these opinions persuasive in some respects, those circuits

did not discuss § 1158(a)(1), but mentioned it only in passing,

see Ramirez-Mejia, 794 F.3d at 490, or not at all, see

Jimenez-Morales, 821 F.3d at 1310; Herrera-Molina,

597 F.3d at 38–39. Thus, although we reach the same

PEREZ-GUZMAN V. LYNCH 13

conclusion as these other courts, we do so on somewhat

different reasoning.

1. Chevron Step One

At step one of Chevron, we conclude Congress has not

directly spoken to the interplay of § 1158(a)(1) and

§ 1231(a)(5). On the contrary, § 1158(a)(1) and § 1231(a)(5)

are in apparent conflict. Section 1158 broadly grants “any

alien” the opportunity to seek asylum, “regardless of such

alien’s status,” subject only to a few exceptions not applicable

here. Section 1231, by contrast, expressly bars aliens subject

to reinstated removal orders from any relief under chapter 12,

the chapter that includes asylum. In attempting to resolve this

apparent conflict, we begin with the language of the statute,

reading it in context and giving undefined terms their

ordinary meanings. See CSX Transp., Inc. v. Ala. Dep’t of

Revenue, 562 U.S. 277, 283–84 (2011); Synagogue v. United

States, 482 F.3d 1058, 1061–62 (9th Cir. 2007). “Our goal is

to understand the statute ‘as a symmetrical and coherent

regulatory scheme’ and to ‘fit, if possible, all parts into a

harmonious whole.’” Gila River Indian Cmty. v. United

States, 729 F.3d 1139, 1145 (9th Cir. 2013) (quoting FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133

(2000)).

Each party argues the plain language of § 1158 and

§ 1231(a)(5) can be harmonized by interpreting one section

as establishing an absolute rule to which the other section

must yield. Perez contends § 1231(a)(5) does not really bar

“any relief” under chapter 12, whereas the government says

§ 1158(a)(1) does not really permit “any alien” to apply for

asylum. “Read naturally, the word ‘any’ has an expansive

meaning.” United States v. Gonzalez, 520 U.S. 1, 5 (1997).

14 PEREZ-GUZMAN V. LYNCH

But within a particular statute, “[a]mbiguity is a creature . . .

of statutory context.” Brown v. Gardner, 513 U.S. 115, 118

(1994); see also Dada v. Mukasey, 554 U.S. 1, 16 (2008) (“In

reading a statute we must not ‘look merely to a particular

clause,’ but consider ‘in connection with it the whole

statute.’” (quoting Kokozha v. Belford, 417 U.S. 642, 650

(1974)).

We agree with the parties that although both subsections

use absolute language, each is qualified in certain respects

when read in context. The text of § 1158(a)(1) states that

“[a]ny” alien may apply for asylum “in accordance with this

section,” regardless of immigration status. § 1158(a)(1). The

rest of § 1158, however, undercuts the breadth of that

guarantee by including a series of exceptions preventing

certain aliens from applying under specific circumstances.

See § 1158(a)(2)(A)–(C). Section 1231(a)(5)’s text is

perhaps stronger in stating that the reinstatement of a prior

removal order precludes “any relief under this chapter.”

§ 1231(a)(5). But our well-settled interpretation of

§ 1231(a)(5) recognizes that, notwithstanding the prohibition

on “any relief,” withholding of removal and CAT protection

are available to individuals in reinstatement proceedings. See

Ixcot v. Holder, 646 F.3d 1202, 1207 (9th Cir. 2011)

(“Notwithstanding the seemingly absolute bar . . . aliens

subject to [§ 1231(a)(5)] ‘may seek withholding of removal’

. . . .” (quoting Fernandez-Vargas, 548 U.S. at 35 n.4));

Ortiz-Alfaro v. Holder, 694 F.3d 955, 956 n.1 (9th Cir. 2012)

(assuming CAT “constrains the Attorney General from

removing aliens . . . notwithstanding” the language of

§ 1231(a)(5)). The Attorney General’s regulations agree. See

8 C.F.R. § 1208.31(e) (allowing withholding of removal);

PEREZ-GUZMAN V. LYNCH 15

8 C.F.R. § 1208.16(c)(4) (allowing CAT protection); 8 C.F.R.

§ 214.14(c)(1)(ii) (allowing U Visas).4

The relevant question, however, is not simply whether the

two provisions are absolute, but how Congress intended to

harmonize them. If one subsection’s text were clearly

intended to take precedence over the other, our inquiry would

be at an end. That both provisions are qualified in certain

respects moves us no closer to a clear answer. Neither

subsection gives an indication of how Congress intended to

resolve a conflict between the two. We therefore turn to the

other “traditional tools of statutory construction” in search of

an answer. See Chevron, 467 U.S. at 843 n.9.

Both Perez and the government invoke the canon of

generalia specialibus non derogant – the “principle that the

specific governs the general” – to advance their preferred

interpretation of the statutory scheme. See Nitro-Lift Techs.,

LLC v. Howard, 133 S. Ct. 500, 504 (2012). The canon

provides that a “narrow, precise, and specific” statutory

provision is not overridden by another provision “covering a

more generalized spectrum” of issues. Radzanower v. Touche

Ross & Co., 426 U.S. 148, 153–54 (1976). When two statutes

come into conflict, courts assume Congress intended specific

4

The government suggested for the first time at oral argument that the

two sections do not actually conflict if “relief” is understood as a term of

art under the INA. It posits that, in barring any “relief,” § 1231(a)(5) does

not prevent individuals from seeking nondiscretionary forms of

“protection” like withholding of removal and protection under CAT.

Although one other circuit found this purported distinction persuasive, see

Ramirez-Mejia, 794 F.3d at 489, we treat this argument as waived because

any textual distinction between the two terms was raised for the first time

at oral argument, see Harger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th

Cir. 2009).

16 PEREZ-GUZMAN V. LYNCH

provisions to prevail over more general ones, see Fourco

Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228–29

(1957), the assumption being that the more specific of two

conflicting provisions “comes closer to addressing the very

problem posed by the case at hand and is thus more deserving

of credence,” Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 183 (2012).

As Scalia and Garner acknowledge, however, it is

“[s]ometimes . . . difficult to determine whether a provision

is a general or a specific one.” Id. at 187. Here, the difficulty

is that each subsection is specific in certain respects and

general in others. Section 1158(a)(1) is more specific in that

it speaks narrowly to the rules governing asylum applications.

Conversely, § 1231(a)(5) is more specific in that it speaks

directly to the particular subset of individuals, like Perez, who

are subject to reinstated removal orders. Although the

government’s position may have a slight edge, both parties’

arguments on this point are sensible. We conclude the

general-specific canon does not help to clearly discern

Congress’s intent as to which section should take precedence

here.

Nor does the legislative history of § 1158 and

§ 1231(a)(5) resolve this ambiguity. IIRIRA’s amendments

to the INA show Congress intended to add more detail to the

existing asylum scheme while simultaneously expanding the

scope and consequences of the reinstatement of an earlier

removal order. Because neither party has identified any

legislative materials speaking directly to the availability of

asylum in reinstatement proceedings, however, we conclude

the legislative history “is silent on the precise issue before

us.” Chevron, 467 U.S. at 862.

PEREZ-GUZMAN V. LYNCH 17

Perez and amici argue IIRIRA broadened the scope of

§ 1158 when it amended the statute slightly to allow “[a]ny

alien,” rather than “an alien,” to apply for asylum. But the

rest of § 1158(a)(1)’s text reenacted the existing language

permitting the alien, “regardless of such alien’s status, to

apply for asylum.” Compare 8 U.S.C. § 1158(a) (1980)

(permitting “an alien physically present in the United States,

. . . , irrespective of such alien’s status, to apply for asylum”),

with id. § 1158(a)(1) (1996) (providing that “[a]ny alien who

is physically present in the United States . . . , irrespective of

such alien’s status, may apply for asylum”). We are reluctant

to assume Congress’ intent is clear from this change alone,

and must read this amendment in concert with the

simultaneous enactment of § 1231(a)(5), which was a

completely new addition in IIRIRA. In adopting both

changes simultaneously, Congress effectively adopted “a

clear limitation in one section” – § 1231(a)(5) – “without

amending another section” dealing with the same subject

matter. See Ramirez-Mejia, 794 F.3d at 490. This might

suggest Congress assumed § 1231(a)(5)’s use of the phrase

“any relief under this chapter” would most naturally be read

as precluding asylum applications. See McNary v. Haitian

Refugee Ctr., Inc., 498 U.S. 479, 496 (1991) (“It is

presumable that Congress legislates with knowledge of our

basic rules of statutory construction. . . .”).

In sum, when read in context and compared with each

other, § 1158(a)(1) and § 1231(a)(5) reveal no clear

congressional intent on how to resolve a claim, like Perez’s,

which places the two sections in conflict. Both provisions

appear to establish broad and conflicting rules. On closer

examination, however, it is apparent that both provisions are

qualified in certain respects – § 1158 by various textual

exceptions, and § 1231(a)(5) by the government’s practice

18 PEREZ-GUZMAN V. LYNCH

and our precedent. Furthermore, we cannot say the general-

specific canon clearly resolves the ambiguity in the statutory

scheme.5 We therefore conclude Congress has not spoken

directly to whether individuals subject to reinstated removal

orders may apply for asylum. We accordingly proceed to

Chevron’s second step, where we ask whether the agency’s

interpretation of an ambiguous statute is a permissible

construction of the statutory scheme. See Chevron, 467 U.S.

at 843.

2. Chevron Step Two

Before we address the substance of the agency’s

interpretation, we must briefly discuss Perez and amici’s

argument that 8 C.F.R. § 1208.31(e) should not be accorded

Chevron deference because the agency failed to adequately

explain its reasoning when it promulgated the regulation in

1999. We do not reach the merits of this argument because

it is untimely.

5

Perez also cites the “longstanding principle of construing any lingering

ambiguities in [removal] statutes in favor of the alien.” INS v. Cardoza-

Fonseca, 480 U.S. 421, 449 (1987). Like the rule of lenity, this rule is a

tiebreaker in the case of insoluble – or “lingering” – ambiguity. Id.; see

Lagandaon v. Ashcroft, 383 F.3d 983, 993 (9th Cir. 2004). As we have

held in the criminal context, however, “[t]he rule of lenity . . . does not

prevent an agency from resolving statutory ambiguity through a valid

regulation.” Pacheco-Camacho v. Hood, 272 F.3d 1266, 1271–72 (9th

Cir. 2001) (citing Babbitt v. Sweet Home Chapter of Cmtys. for a Great

Or., 515 U.S. 687, 704 n.18 (1995)); see also Mujahid v. Daniels,

413 F.3d 991, 998–99 (9th Cir. 2005) (prioritizing the rule of lenity over

Chevron deference “is tenuous at best and requires us to fill in more

blanks than we are willing to do”).

PEREZ-GUZMAN V. LYNCH 19

a. Timeliness

Procedural challenges to agency rules under the

Administrative Procedure Act are subject to the general six-

year limitations period in the U.S. Code. See Wind River

Mining Corp. v. United States, 946 F.2d 710, 713–14 (9th

Cir. 1991) (citing 28 U.S.C. § 2401(a)). Under Wind River,

challenges to a “mere procedural violation in the adoption of

a regulation or other agency action” must be brought within

six years of the agency rulemaking, whereas challenges to

“the substance of an agency’s decision as exceeding

constitutional or statutory authority” may be brought any time

“within six years of the agency’s application of the disputed

decision to the challenger.” Id. at 715–16. Whether Perez’s

challenges are timely therefore depends on whether they are

procedural or substantive.6

Perez’s central claim is that the Attorney General’s

refusal to consider his asylum application is based on an

unreasonable interpretation of § 1158 and § 1231(a)(5). The

parties agree this is a substantive challenge. Because it was

brought within six years of the BIA’s refusal to consider

Perez’s asylum application, it is timely. See Cal. Sea Urchin

Comm’n v. Bean, ___ F.3d ___, 2016 WL 3739700, at *4 (9th

6

Perez argues we should not rule on timeliness because the government

did not raise it until supplemental briefing. We have given both parties

“ample opportunity to address the issue” through supplemental briefing,

and will exercise our discretion to decide it. U.S. Nat’l Bank of Or. v.

Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447–48 (1993). Although

the government suggested in supplemental briefing that Perez’s challenge

is substantive, there is no “impropriety in refusing to accept what in effect

[is the parties’] stipulation on a question of law.” Id. at 448. In addition,

the government noted that “[i]f this were . . . a procedural challenge . . .

it would be time-barred.”

20 PEREZ-GUZMAN V. LYNCH

Cir. July 12, 2016) (holding timely a challenge to “the present

application of an earlier rule that allegedly contradicted the

agency’s statutory authority”).

Perez and amici also argue that 8 C.F.R. § 1208.31 merits

no deference at Chevron step two because the agency

allegedly failed to explain its interpretation of § 1158 and

§ 1231 when it originally promulgated the regulation. This

portion of their challenge, in other words, alleges “a

procedural violation in the adoption of a regulation.” Wind

River, 946 F.2d at 714. We conclude that although Perez’s

arguments about the substance of 8 C.F.R. § 1208.31’s

interpretation are timely, his arguments about the alleged

procedural errors in its promulgation are not. We therefore

decline to consider them. See also Sai Kwan Wong v. Doar,

571 F.3d 247, 262–63 (2d Cir. 2009) (collecting cases).

The Supreme Court’s recent decision in Encino

Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016), supports

this approach. There, the Court held an agency regulation

that represented a change in longstanding agency position

was not entitled to Chevron deference because the agency had

failed to adequately explain its change in position. The Court

explained that a “basic procedural requirement[] of

administrative rulemaking is that an agency must give

adequate reasons for its decisions.” Id. at 2125 (emphasis

added); see also id. (“Chevron deference is not warranted

where the regulation is ‘procedurally defective’ – that is,

where the agency errs by failing to follow the correct

procedures in issuing the regulation.”). “Of course,” it noted,

“a party might be foreclosed in some instances from

challenging the procedures used to promulgate a given rule.”

Id. (citing JEM Broad. Co. v. FCC, 22 F.3d 320, 324–26

(D.C. Cir. 1994)).

PEREZ-GUZMAN V. LYNCH 21

JEM Broadcasting arose in a similar procedural posture

to this case. The FCC had earlier promulgated a rule

preventing review of certain license applications that included

inaccurate or incomplete information. See JEM Broad.,

22 F.3d at 322–23. The FCC subsequently declined to review

JEM’s defective application by citing that rule, and JEM

sought to “attack . . . the procedural genesis of the [rule] in

the context of an enforcement action,” by arguing the rule had

been improperly promulgated without notice and comment

years earlier. Id. at 324. The D.C. Circuit held JEM’s

challenge was untimely:

JEM does not claim . . . that the “hard look”

rules are unconstitutional, that they exceed the

scope of the FCC’s substantive authority, or

. . . that the rules are premised on an

erroneous interpretation of a statutory

term. . . .

[C]hallenges to the procedural lineage of

agency regulations, whether raised by direct

appeal . . . or as a defense to an agency

enforcement proceeding, will not be

entertained outside the . . . period provided by

statute.

Id. at 325 (quoting Mountain States Tel. & Tel. Co. v. FCC,

939 F.2d 1035, 1040 (D.C. Cir. 1991)). Although it

recognized that “some parties – such as those not yet in

existence when a rule is promulgated” – would “never . . .

have the opportunity to challenge the procedural lineage of

rules that are applied to their detriment,” the court concluded

“the law countenances this result because of the value of

repose.” Id. at 326. We have reached the same conclusion.

22 PEREZ-GUZMAN V. LYNCH

See Wind River, 946 F.2d at 715 (“The government’s interest

in finality outweighs a late-comer’s desire to protest the

agency’s action as a matter of policy or procedure.”); see also

Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1129 (9th

Cir. 1999) (noting a limitations period on procedural

challenges is necessary “so that regulations are not

indefinitely subject to challenge in court”).7

In the absence of binding contrary authority, we apply the

approach required by Wind River and approved by the

Supreme Court in Encino Motorcars to conclude Perez’s

procedural challenge to 8 C.F.R. § 1208.31(e) falls outside

the limitations period. We therefore move on to determine

whether 8 C.F.R. § 1208.31(e) is a permissible construction

of the statute under Chevron step two.

b. The Chevron Step Two Inquiry

At step two of Chevron, we must “accept the agency’s

construction of the statute” so long as that reading is

reasonable, “even if the agency’s reading differs from what

the court believes is the best statutory interpretation.” Brand

7

Perez also argues his challenge is timely because the agency “fail[ed]

to put aggrieved parties on reasonable notice of the rule’s content.” JEM

Broad., 22 F.3d at 326. We disagree. We noted in Wind River that

“‘[p]ublication in the Federal Register is legally sufficient notice to all

interested or affected persons regardless of actual knowledge or hardship

resulting from ignorance.’” 946 F.2d at 714 (alteration in original)

(quoting Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364

(9th Cir. 1990)). Here, the notice published in the Federal Register was

sufficient to inform an interested party the regulation created a streamlined

system for assessing claims from individuals in reinstatement proceedings

and that the agency viewed such individuals as ineligible for asylum. See

64 Fed. Reg. at 8485, discussed above at pp. 9–10.

PEREZ-GUZMAN V. LYNCH 23

X Internet Servs., 545 U.S. at 980. Deference “is especially

appropriate in the immigration context where officials

‘exercise especially sensitive political functions that implicate

questions of foreign relations.’” INS v. Aguirre-Aguirre,

526 U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94,

110 (1988)). With these principles in mind, we consider

whether 8 C.F.R. § 1208.31(e), which prevents individuals

subject to reinstated removal orders from applying for asylum

but permits them to seek withholding of removal, is a

reasonable interpretation of § 1158 and § 1231. We conclude

it is.8

8

Perez and amici argue 8 C.F.R. § 1208.31(e) does not merit Chevron

deference because the agency failed to exercise its interpretive authority

at all and treated § 1231(a)(5) as unambiguous. They therefore suggest we

should remand to the agency under the rule expressed in Negusie v.

Holder, 555 U.S. 511 (2009), and Gila River Indian Community v. United

States, 729 F.3d 1139 (9th Cir. 2013). We reject this suggestion. The

government’s argument on appeal that the statute is unambiguous does not

tell us how the agency viewed the statute when it initially promulgated the

regulation. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213

(1988) (noting appellate counsel’s “convenient litigating position” is not

entitled to deference). Rather, agency action rises or falls on the agency’s

own contemporaneous reasoning, and where we have remanded under

Negusie the administrative record has more clearly shown that “the agency

misapprehended the clarity of the statute” and “mistakenly derermine[d]

that its interpretation [was] mandated by plain meaning, or some other

binding rule,” Gila River, 729 F.3d at 1149 (emphasis added). The

administrative history does not discuss the specific language of the asylum

statute, but neither does it suggest the agency saw § 1231(a)(5) as

compelling the regulation’s particular approach to asylum, withholding of

removal or CAT protection. On the contrary, the agency’s explanation

shows it applied its expertise by crafting an expedited screening process

and balancing the fair resolution of claims for relief from removal against

Congress’ desire to provide for streamlined removal of certain classes of

individuals, including those subject to reinstated removal orders. See

64 Fed. Reg. at 8485, discussed above at pp. 9–10.

24 PEREZ-GUZMAN V. LYNCH

First, the regulation is consistent with a reasonable

judgment that § 1231(a)(5) is a more specific provision than

§ 1158, even if not conclusively so, and is therefore “more

deserving of credence” when the two provisions conflict.

Scalia & Gardner, supra, at 183. As discussed, both parties

advance reasonable arguments for why the canon favors their

interpretations of the statutory scheme. At step two, however,

“we are not deciding between two plausible statutory

constructions; we are evaluating an agency’s interpretation of

a statute under Chevron.” Morales-Izquierdo v. Gonzales,

486 F.3d 484, 492 (9th Cir. 2007) (en banc). It was not

unreasonable for the agency to conclude § 1231(a)(5)’s

prohibition on “any relief under this chapter” forecloses

individuals from applying for asylum relief. Indeed, the other

circuits to consider this issue have concluded it does. See

Jimenez-Morales, 821 F.3d at 1310; Ramirez-Mejia, 794 F.3d

at 490; Herrera-Molina, 597 F.3d at 138–39.

Second, the agency’s approach is consistent with

Congress’ intent in IIRIRA that the reinstatement of a

previous removal order would cut off certain avenues for

relief from removal. Reinstatement was designed to be “a

different and far more summary procedure” than regular

removal. Moralez-Izquierdo, 486 F.3d at 491. To that end,

Congress intended § 1231(a)(5) to subject more individuals

to reinstatement proceedings and to “limit[] the possible relief

from a removal order available to them.” Fernandez-Vargas,

548 U.S. at 33; see also Ramirez-Mejia, 794 F.3d at 490.

Forbidding asylum applications from individuals in

reinstatement proceedings, although harsh, is in keeping with

this approach. See Barnhart v. Walton, 535 U.S. 212, 219

(2002) (upholding an agency construction that made

“considerable sense in terms of the statute’s basic

objectives”). Furthermore, the agency’s interpretation is a

PEREZ-GUZMAN V. LYNCH 25

reasonable construction of the legislative history we

discussed above, which is at least consistent with the view

that, in enacting § 1158(a)(1) and § 1231(a)(5) together,

Congress assumed the phrase “any relief under this chapter”

would include the asylum provision in the statute. See

Chevron, 467 U.S. at 862 (noting that when legislative history

“as a whole is silent” on the “precise issue” before the court,

it may nonetheless be “consistent” with a particular

interpretation of the statute). Had Congress intended to

include a carve-out for asylum relief, it could have done so

explicitly when it wrote § 1231(a)(5) or revised § 1158.

There are nonetheless some weaknesses in the agency’s

approach, but they are not fatal to its interpretation. We have

already noted that, notwithstanding § 1231(a)(5)’s bar on

“any relief” under chapter 12, the Attorney General has

interpreted that section to permit individuals to seek

withholding of removal, CAT protection and U Visas – all

forms of relief that, like asylum, arise under chapter 12. See

8 C.F.R. §§ 214.14(c)(1)(ii), 1208.16(c)(4), 1208.31(e). The

government suggests this policy draws a reasonable line

between discretionary and nondiscretionary relief, and the

Supreme Court acknowledged “the practical import of th[at]

distinction,” albeit in a slightly different context. Cf. INS v.

Cardoza-Fonseca, 480 U.S. 421, 444 (1987) (holding it was

“not . . . at all anomalous” that asylum applicants and

applicants for withholding were governed by different

standards of proof and stating there was “no basis for the . . .

assertion that the discretionary/mandatory distinction has no

practical significance”).

This explanation, however, fails to account for why,

under the Attorney General’s regulations, individuals in

reinstatement are permitted to apply for U Visas – a form of

26 PEREZ-GUZMAN V. LYNCH

discretionary relief – but not for asylum. It may be relevant

that U Visas were created in 2000, four years after IIRIRA

implemented the revised asylum statute and the reinstatement

bar. See Victims of Trafficking and Violence Prevention Act

of 2000, Pub. L. No. 106-386, § 1513, 114 Stat. 1464. In

concluding that the Attorney General’s approach in 8 C.F.R.

§ 1208.31(e) is reasonable under Chevron, however, we note

the Supreme Court apparently found nothing inconsistent

between the “absolute terms” by which § 1231(a)(5) bars

relief and the government’s decision to make certain forms of

relief from removal available in reinstatement proceedings.

See Fernandez-Vargas, 548 U.S. at 35 n.4 (“Notwithstanding

the absolute terms in which the bar on relief is stated, even an

alien subject to [§ 1231(a)(5)] may seek withholding of

removal under [§ 1231(b)(3)] . . . , or under 8 C.F.R.

§§ 241.8(e) and 208.31. . . .” (emphasis added)); see also

Jimenez-Morales, 821 F.3d at 1310 (citing Fernandez-

Vargas, 548 U.S. at 35 n.4); Herrera-Molina, 597 F.3d at 139

n.8 (same).9 Although the availability of asylum is an

important component of our immigration law, it is not

unreasonable to conclude Congress intended to bar this form

of relief to persons in reinstated removal proceedings while

preserving relief for individuals able to meet the higher

standards for withholding of removal and CAT relief. See

Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016)

(denying rehearing en banc) (“Even if withholding of removal

and CAT protection are slightly less potent remedies than

9

In Fernandez-Vargas, the Supreme Court parenthetically described

8 C.F.R. §§ 241.8(e) and 208.31 as “raising the possibility of asylum.”

548 U.S. at 35 n.4. This appears to have been an oversight; although both

regulations refer to “asylum officers,” they clearly permit only

withholding from removal. Indeed, the main text of the Court’s footnote

correctly refers only to “seek[ing] withholding of removal” under those

regulations.

PEREZ-GUZMAN V. LYNCH 27

asylum, the difference may well be consistent with

Congress’s intent to penalize illegal reentry. We need not

justify the difference, but we note possible reasons for it.”).

In addition, although the Attorney General’s

interpretation makes sense as applied to an individual who

has already had an opportunity to seek asylum upon his initial

entry to the United States, it does not account for individuals

in reinstatement proceedings who may have compelling

claims based on new circumstances arising subsequent to

their previous removal proceedings. The Attorney General’s

interpretation of § 1231(a)(5) may have dire humanitarian

consequences for individuals in reinstatement who seek relief

from removal, either because they were previously denied

asylum and are now subject to changed circumstances or

because they were improperly denied an opportunity to seek

asylum during their earlier removal from the United States.

However, the government has discretion to forgo

reinstatement and instead place an individual in ordinary

removal proceedings. See Villa-Anguiano v. Holder,

727 F.3d 873, 878 (9th Cir. 2013). Once in ordinary

proceedings, the individual can raise an asylum application

without implicating § 1231(a)(5)’s bar. The government has

followed this procedure before, see, e.g., Maldonado Lopez

v. Holder, No. 12-72800 (9th Cir. dismissed Feb. 4, 2014),

and we assume it will continue to exercise that discretion in

appropriate cases, such as those presenting strong

humanitarian concerns. To the extent this consideration

“really centers on the wisdom of the agency’s policy, rather

than whether it is a reasonable choice within a gap left open

by Congress,” it cannot invalidate the agency’s interpretation

at Chevron’s second step. See Chevron, 467 U.S. at 866.

28 PEREZ-GUZMAN V. LYNCH

In sum, despite our reservations, we are not persuaded

that 8 C.F.R. § 1208.31(e)’s interpretation of § 1231(a)(5)

and § 1158(a)(1) is an unreasonable construction of the

statute. See Chevron, 467 U.S. at 843–44. It is consistent

with the broad language of § 1231(a)(5), with Congress’

intent to make reinstatement an expedited process for

removing individuals who reenter the United States and with

the overall legislative history of both provisions.

Perez’s remaining arguments to the contrary are not

persuasive. First, Perez and amici argue the Attorney

General’s interpretation of § 1231(a)(5) is contrary to the

structure of § 1158 itself. They focus in particular on

§ 1158(a)(2)(D), which provides that an applicant’s second

asylum application “may be considered” if he shows changed

circumstances materially affecting his eligibility for asylum.

Perez and amici argue that if § 1231(a)(5) categorically

forbids an individual in reinstatement from applying for

asylum, § 1158(a)(2)(D) is superfluous. This argument

incorrectly assumes that any individual to whom

§ 1158(a)(2)(D) applies will necessarily be subject to a

reinstated removal order. Not so. The reinstatement of a

prior removal order is neither “automatic” nor “obligatory,”

and the Attorney General has discretion not to reinstate an

individual’s earlier removal order and instead place him in

ordinary removal proceedings. See Villa-Anguiano, 727 F.3d

at 878 (quoting Alcala v. Holder, 563 F.3d 1009, 1013 (9th

Cir. 2009)). If the Attorney General elects to place an

individual who previously applied for and was denied asylum

into ordinary removal proceedings upon his reentry to the

United States, § 1158(a)(2)(D) is not superfluous. On the

contrary, it affirmatively authorizes a second asylum claim in

PEREZ-GUZMAN V. LYNCH 29

light of his changed circumstances – something that would

ordinarily be precluded by § 1158(a)(2)(C).10

Second, Perez and amici argue the asylum statute is a

“closed universe” unaffected by other portions of the INA.

In other words, they suggest § 1158’s enumerated exceptions

for eligibility to apply for asylum are exhaustive. Amici note

the asylum scheme makes no reference to § 1231(a)(5), and

suggest § 1158 was intended to govern asylum applications

independent of the rest of the INA. The Attorney General,

however, is not unreasonable for adopting a contrary view.

None of the various provisions for relief under the INA

explicitly refers to § 1231(a)(5), but § 1231(a)(5) specifies

“any relief under this chapter.” No explicit cross-reference to

every affected section is necessary for us to conclude that

“any relief under this chapter” can reasonably be read to

preclude applications for asylum, a form of relief arising

under chapter 12.

For the foregoing reasons, we hold that 8 C.F.R.

§ 1208.31(e) is a reasonable interpretation of the interplay

between § 1158 and § 1231, and we must therefore defer to

it under Chevron. In keeping with that regulation, Perez is

not eligible to apply for asylum under § 1158 as long as he is

subject to a reinstated removal order.

10

Perez is a first-time asylum claimant, and alleges no circumstances

that materially changed between his removal from the United States and

his subsequent reentry. We therefore have no opportunity here to

determine how § 1158(a)(2)(D) might affect § 1231(a)(5) in a case where

those two provisions are actually in conflict.

30 PEREZ-GUZMAN V. LYNCH

C. Withholding of Removal and CAT Relief

After the BIA concluded Perez had not shown past

persecution on account of his membership in a particular

social group, we held witnesses who testify against gang

members may constitute a “particular social group.” See

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir.

2013) (en banc). In addition, after the BIA rejected Perez’s

CAT claim because there was no evidence the Guatemalan

government sanctioned his abuse by police, we held that local

officials’ acquiescence in torture is sufficient to entitle an

applicant to CAT relief, even if the national government did

not acquiesce in the treatment. See Madrigal v. Holder,

716 F.3d 499, 509 (9th Cir. 2013). In light of these

intervening authorities, the parties agree we should remand

on Perez’s claims for withholding of removal and CAT relief.

III. Conclusion

We remand for the agency to reconsider Perez’s

applications for withholding of removal and CAT protection

in light of Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir.

2013) (en banc), and Madrigal v. Holder, 716 F.3d 499 (9th

Cir. 2013). We affirm the BIA’s conclusion that it could not

consider Perez’s application for asylum relief in light of his

reinstated removal order.

PETITION GRANTED IN PART AND DENIED IN

PART; REMANDED TO THE BIA.

Each party shall bear its own costs on appeal.