recognizing that if relief could be granted based on such a change, “[ajliens would have every incentive to disregard their removal orders and remain in the United States long enough to change their personal circumstances (e.g., by having children or practicing a persecuted religion) and initiate new proceedings via a new asylum application.”
How later courts described this case
- recognizing that if relief could be granted based on such a change, “[ajliens would have every incentive to disregard their removal orders and remain in the United States long enough to change their personal circumstances (e.g., by having children or practicing a persecuted religion) and initiate new proceedings via a new asylum application.”
- holding that the existing legal system does not permit aliens who have been ordered removed “to disregard [those] removal orders and remain in the United States long enough to change their personal circumstances (e.g., by having children or practicing a persecuted religion) and initiate new proceedings via a new asylum application”
- holding that the BIA reasonably interpreted the Immigration and Nationality Act and its implementing regulations to require that “an alien under a final removal order must file a successive asylum application in conjunction with a motion to reopen and in accordance with th[e] procedural requirements [for filing such motions]”
- holding that the existing legal system does not permit aliens who have been ordered removed “to disregard [those] orders and remain in the United States long enough to change their personal circumstances (e.g., by having children or practicing a persecuted religion) and initiate new proceedings via a new asylum application”
Written by the judges who cited it.
The opinion
SACK, Circuit Judge,
concurring in part:
I concur in the judgment of the majority. I also join in Judge Walker’s opinion for the majority, with one exception.
The majority resolves the petitioners’ due process challenge by concluding, first, that “an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum,” ante at 156; and second, that “[i]n any event, assuming ar-guendo that petitioners had a protectable interest in relief [they sought], they have *161 not been denied due process,” ante at 157. As to the first point — the existence of a liberty or property interest — the majority may well be right. 1 But I would prefer not to purport to decide categorically here this issue of first impression. The same result obtains independently under the majority’s alternative rationale, with which I agree — that due process was, in fact, afforded to the petitioners.
Evaluating a due process claim involves a two-part inquiry in which we ask: “1) whether plaintiffs possess a liberty or property interest protected by the Due Process Clause; and, if so, 2) whether existing ... procedures are constitutionally adequate.” Kapps v. Wing, 404 F.3d 105, 112 (2d Cir.2005). When the first question is unsettled and the second question is easily answered in the affirmative, we have not hesitated to dispose of the claim on the second question alone. See, e.g., Gaston v. Coughlin, 249 F.3d 156, 162 (2d Cir.2001); Rojas-Reyes v. INS, 235 F.3d 115, 124 (2d Cir.2000). 2
I think we should do so here.
. Because I think we ought not reach this issue, I arrive at no conclusion with respect to it. I point out, nonetheless, that the issue may not be as simple as the majority makes it appear. Although asylum is a discretionary form of relief, INS v. Aguirre-Aguirre, 526 U.S. 415, 420, 119 S.Ct. 1439 , 143 L.Ed.2d 590 (1999), and the Due Process Clause does not protect benefits that “government officials may grant or deny ... in their discretion,” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 , 125 S.Ct. 2796 , 162 L.Ed.2d 658 (2005), every asylum applicant is nonetheless entitled to due process in establishing her eligibility for that form of relief, see, e.g., Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir.2008); Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.2007); see also Zadvydas v. Davis, 533 U.S. 678, 693-94 , 121 S.Ct. 2491 , 150 L.Ed.2d 653 (2001) (“CTjhis Court has held that the Due Process Clause protects an alien subject to a final order of deportation, though the nature of that protection may vary depending upon status and circumstance.” (citations omitted)).
The due process issue is also complicated because, unlike asylum, withholding of removal under 8 U.S.C. § 1231 (b)(3) and the Convention Against Torture is mandatory. Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.2007); Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007); 8 U.S.C. § 1231 (b)(3)(A). We have said that “some due process protection surrounds the determination of whether an alien has sufficiently shown that return to a particular country will jeopardize his life or freedom so as to invoke the mandatory prohibition against his return to that country.” Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.1984). Furthermore, the INA’s implementing regulations provide that "[a]n asylum application shall be deemed to constitute at the same time an application for withholding of removal.” 8 C.F.R. § 208.3 (b). Any BIA policy restricting the ability to apply for asylum will therefore also implicate withholding of removal, a form of relief that carries due process protection.
I think we should refrain from addressing these and related issues until we are required to do so.
. I do not think the majority's citations to Connolly v. McCall, 254 F.3d 36 (2d Cir.2001) (per curiam), where the second question was not easily answered in the affirmative, or McMenemy v. City of Rochester, 241 F.3d 279 (2d Cir.2001), where the narrow first question — whether the plaintiff had (he property interests he claimed — was answered largely by reference to well-settled Supreme Court, Second Circuit and New York law, affect this conclusion.