Petition for Writ of Certiorari — Yang v. Immigration & Naturalization Service

7 Supreme Court, U.S.

(| ) FIL BD

352065 JUN 24 1996

No *Fiéé QF THE CLERK

In the Supreme Couri of the Gnited States

October Term, 1995

PAO YANG, YING YANG, JIMMY YANG,

BAO YANG, SEYAR YANG

and PHONESAVANNE YANG,

v.

IMMIGRATION AND NATURALIZATION SERVICE.

On Petition for a Writ of Certiorari

To the. United States Court of Appeals

For the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Donald Ungar

909 Montgomery Street, Suite 303

San Francisco, California 94133

Tel: (415) 421-0860

Attorney for Petitioners

(1)

QUESTION PRESENTED

Whether 8 C.F.R. §208.14(d)(2) exceeds the scope of its

enabling statute, §208 of the Immigration aid Nationality Act,

8 U.S.C. §208, by compelling the denial of asylum in the

United States in all cases to a refugee who had been firmly

resettled in another country, regardless of any other relevant

consideration.

ncaa

1

TABLE OF CONTENTS

Opinion Below 2

Jurisdiction 2

Statutes and Regulation Involved 2

Statement of the Case 4

Reasons to Grant the Wnit 4

Conclusion 9

Appendix I

TABLE OF AUTHORITIES

Cases

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

Defense Council, 467 U.S. 837 (1984) 6, 7, 8

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) 6

Reno v. Flores, 507 U.S. 292 (1993) 6, 8

Rosenberg v. Yee Chien Woo, 9 10

Russello v. United States, 464 U.S. 16 (1983) 8

United States v. Wooten, 688 F. 2d 941 (4th Cir. 1982) 8

Yang v. INS, 79 F. 3d 932 (9th Cir. 1996) 6-10

Statutes

Immigration and Nationality Act

§101(a)(42), 8 U.S.C. §1101(42)

y

§207, 8 U.S.C. §1157 2, 5, 6,7,9

§208, 8 U.S.C. §1158 3, 5, 6,7,9

§209, 8 U.S.C. §1159 3, 6, 7,9

Regulations

8 C.F.R. §208.14(b)(2) 4,5

8 C.F.R. §242.24(b) 8

2

OPINION BELOW

The opinion of the United States Court of Appeals for the

Ninth Circuit, from which review is sought, is reported at

79 F. 3d 932 (9th Cir. 1996).

JURISDICTION

The judgment of the court of appeals was entered on March

27, 1996. The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

STATUTES AND REGULATION INVOLVED

Statutes

1. §101(a)(42)(A) of the Immigration and Nationality Act

(the “INA”), 8 U.S.C. §1101(a)(42)(A):

The term “refugee” means (A) any person who is outside any

country of such person’s nationality or, in the case of a person

having no nationality, is outside any country in which such

person last habitually resided, 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...

2. §207(c)(1) of the INA, 8 U.S.C. §1157(c)(1):

Subject to the numerical limitations established pursuant to

subsections (a) and (b), the Attorney General may, in the

Attorney General's discretion and pursuant to such regulations

as the Attorney General may prescribe, admit any refugee who

is not firmly resettled in any foreign country, is determined to

be of special humanitarian concer to the United States, and is

|

3

admissible (except as otehrwise provided under paragraph (3)

as an immigrant under this Act.

3. §208(a) of the INA, 8 U.S.C. §1158(a):

The Attorney General shall establish a procedure for an alien

physically present in the United States or at a land border or

port of entry, irrespective of such alien's status, to apply for

asylum, and the alien may be granted asylum in the discretion

of the Attorney General if the Attorney General determines that

such alien is a refugee within the meaning of section

101(a)(42).

4. §209(b) of the INA, 8 U.S.C. §1159(b):

Not more than 10,000 of the refugee admissions authorized

under section 207(a) in any fiscal year may be made available

by the Attorney General, in the Attorney General’s discretion

and under such regulations as the Attorney General may

prescribe, to adjust to the status of an alien admitted for

permanent residence the status of any alien granted asylum who

(1) applies for such adjustment,

(2) has been physically present in the United States for

at least one year after being granted asylum,

(3) continues to be a refugee within the meaning of

section 101(a)(42)(A) or a spouse or child of such

refugee,

(4) is not firmly resettled in any foreign country,

(5) is admissible (except as otherwise provided under

subsection (c) as an immigrant under this Act at the

time of examination for adjustment of such alien.

Regulation

8 C.F.R. §208.14(d)(2): Mandatory Denials. An application

for asylum shall be denied if: . . . (2) The applicant has been

firmly resettled within the meaning of §208.15.

STATEMENT OF THE CASE

This case is about a man and his family, Hmong survivors of

the CIA’s “secret war” in Laos, who want the United States to

honor the promise it made to them of refuge in this country.

The promise, they say, was made to Mr. Yang's father, a

Hmong commander and CIA surrogate, in exchange for his

continued resistance to communist forces during the war.

The elder Yang kept his part of the bargain. The CIA did

not. When the communists overran Laos in 1975, the Yangs

fled for their lives to Thailand. There, in a refugee camp, they

waited for three years for permission to come here. When it

became apparent that the CIA would not help them, and having

been threatened with repatriation to Laos, they accepted an

alternate haven in France and lived there until 1991, when they

came here as visitors. Following denial of their applications for

asylum, they sought review in the United States Court of

Appeals for the Ninth Circuit under 8 U.S.C. §1105a.

With the court’s stamp of approval below, the Attorney

General has decided the Yangs cannot be granted asylum.

They cannot even tell their story of CIA betrayal because no

matter how compelling their reasons may be, they are barred

from political asylum by 8 C.F.R. §208.14(d)(2), a regulation

which prohibits asylum for anyone who, like the Yang family,

was “firmly resettled” in another country before coming to the

United States -- unless this Court agrees that the regulation

exceeds the scope of the Attorney General's delegated authority.

REASONS TO GRANT THE PETITION

As cases go, this one is not likely to affect a lot of people.

Decisions about asylum are the Attorney General's to make in

the exercise of her discretion. And she is not likely to grant

asylum to very many who were settled elsewhere after their

flight from persecution.

Still, simple justice now and then ought to permit the

consideration of an asylum application, even for a firmly

resettled applicant in appropriate cases, provided of course that

Congress meant to keep the door open to that possibility. The

purpose of what follows is to show why that is exactly what

Congress intended and, consequently, that the Attorney General

had no authority to slam the door shut on the Yang family

without so much as hearing their story.

The Attorney General’s role in the asylum process is

governed by §208 of the INA, 8 U.S.C. §1158. Her function,

which she has delegated to immigration judges and the Board

of Immigration Appeals, is first to determine whether the

applicant fits the description of a refugee under §101(a) (42) of

the INA, 8 U.S.C. §1101(a)(42), i.e., whether the applicant was

a victim of persecution or has a well founded fear of

persecution in the country of his or her nationality or, in certain

cases, the country of last residence.

Qualifying as a refugee, however, does not guarantee the

grant of asylum. Rather, the Attorney General must then

decide whether to grant asylum in the exercise of discretion,

depending obviously on other relevant considerations.

Ostensibly exercising that discretion, the Attorney General

issued 8 C.F.R. §208.14(6)(2), mandating the denial of all

asylum applications made by refugees who were “firmly

resettled” in another country before coming to the United

States, regardless of other considerations.

That Congress had no intention of allowing the Attorney

General to go that far is the necessary conclusion to be drawn

from the statutory scheme relating to refugees and asylum. The

scheme begins with §207 of the INA, 8 U.S.C. §1157, which

concems the admission of refugees from abroad. It continues

with §208 which authorizes the grant of asylum, in the

Attorney General's discretion, to refugees who have come here

in some other immigration classification. And it ends with

6

§209, 8 U.S.C. §1159, which authorizes permanent resident

status for such refugees, whether admitted as such from abroad

or granted asylum after their entry.

§207(c) contains a bar against the admission from abroad of

firmly resettled refugees. §209(b) bars permanent resident

status for people were granted asylum but are firmly resettled

in another country. §208 contains no provision barring asylum

for refugees who were firmly resettled before coming to the

United States. Which brings this case squarely within the rule

that

Where Congress includes particular language in

one section of a statute but omits it in another section

of the same act, it is generally presumed that Congress

acts intentionally and purposely in the disparate

inclusion or exclusion. INS v. Cardoza-Fonseca, 480

U.S. 421, 432 (1987).

In other words, by omitting a firm resettlement bar in §208

while including it in the companion provisions of §207 and

§209, Congress must have intended to leave open the

possibility of asylum even for one who was firmly resettled

elsewhere.

Consequently, by imposing a firm resettlement bar, the

regulation adds a provision to §208 that Congress, for whatever

reason, chose to omit. That is not enforcing the law as

Congress wrote it. It is making a law Congress did not write.

The regulation is, for that reason, invalid on its face.

The opinion of the court below offers no reason to validate

the regulation, for it is pinned to a faulty analysis of three

significant cases, Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984); INS v. Cardoza-

Fonseca, supra; and Reno v. Flores, 507 U.S. 292 (1993).

The lower court's analysis of Chz,'ron begins, as it must, with

the question of whether Congress has directly addressed the

precise issue at hand. The court found it had not because §208

is silent on the matter of firm resettlement. But what the court

forgot to consider is that Congress may address a particular

issue just as much by what it does not say in a statute as what

it does say.

Consider what Congress did say in §207(c). It said the

Attorney General may, in her discretion, admit refugees into the

United States from abroad, provided they have not been firmly

resettled. Firm resettlement, in other words, was clearly meant

to be a restraint on the Attorney General's authority. §208, the

very next section, confers a symilar discretionary authority on

the Attorney General to grant asylum. But it contains no

resettlement preclusion. The obvious meaning is that Congress

intended no such restraint on the Attorney General's aslyum

authority.

Consider also the peculiar language of §209(b). It authorizes

permanent resident status to people who have been granted

asylum, but under (b)(4) only to those who are “not firmly

resettled in any foreign country.” Think about it. If Congress

meant to let the Attorney General deny asylum to all firmly

resettled refugees, there would be no one to bar from resident

status under (b)(4) because the same person would never have

been granted asylum in the first place. So the only logical and

common sense answer is that (b)(4) was meant to bar people

from permanent resident status if they were firmly resettled

elsewhere after, not before, being granted asylum here.

Moreover, a statute’s silence on a particular issue does not

absolve the courts of their obligation to seek out congressional

intent through employment of “traditional tools of statutory

construction.” Chevron, supra, 467 U.S. 843,n.9. Apply the

traditional inclusion-omission rule of construction just discussed

and the absence of a firm resettlement preclusion from §208 is

a -

8

an unmistakable sign that firm resettlement was not meant to

rule out asylum in all cases.

Nor does that same rule of statutory construction lose its

impact just because the particular issue in Cardoza-Fonseca,

supra, involved the incompatability of language of two other

refugee provisions while the issue here involves the inclusion

of language in one provision and its absence from another. If

anything, and contrary to the court's opinion below, 79 F. 3d at

937, 938, that distinction only reinforces appiicability of the

Tule to this case. For in its own words, the rule specifically

refers to the inclusion of language in one section and its

omission from another. So Cardoza-Fonseca is important, not

for its facts, but for the rule it applied, a rule that is equally

applicable here despite a difference in the facts.’

Ironically, the court below went on to ignore an important

factual difference in its analysis of Reno v. Flores, supra. That

case involved a regulation implementing the Attorney General's

discretionary authority to release children taken into custody

pending deportation hearings. The rule required the child’s

release only to a member of the child's family, except in

“unusual and compelling circumstances,” in which case the

child may be released to other adults. 8 C.F.R. §242.24(b)(4).

This Court affirmed the rule as reasonably related to the

Attomey General's discretionary authority, despite its

presumption that relatives are better able than others to care for

a child. But the important point, insofar as it relates to this

case, is the exception which the rule itself permits. That is, it

allows for release to other adults in special circumstances.

1. Of course, the rule has been applied to cases involving the

omission of language from one provision and its inclusion in

another. See e.g., United States v. Wooten, 688 F. 2d 941, 950

(4th Cir. 1982), cited with approval in Russello v. United States,

464 U.S. 16, 23 (1983).

The regulation thus allows the Attorney General to exercise

her discretion taking into account all relevant circumstances and

to deviate from the presumption favoring relatives when

appropriate. But the regulation at issue in this case does not.

Under no conceivable circumstance may a firmly resettled

refugee be granted asylum. That, as noted in the beginning, is

not the true exercise of discretion. It is impermissible law

making.

To suggest, as the court below suggested, that Congress

merely let the Attorney General fill in a firm resettlement gap

in §208 makes no sense in light of the specific preclusions that

Congress wrote, in virtually the same breath, into §207 and

§209 as to firmly resettled refugees. If Congress had wanted

to bar firmly resettled refugees from asylum as well, it had only

to say so in §208. It didn’t. That it didn’t must mean it had no

intention of allowing the Attorney General to impose the very

same bar it had refrained from imposing on its own.

In that respect, and contrary to the court's opinion below, 79

F. 3d at 936, the INA does indeed compel the Attorney General

to consider all relevant facts, not just firm resettlement alone,

in the exercise of her asylum discretion. And it doesn’t matter

whether she does so by rule making or ad hoc adjudication. As

the court correctly noted, an agency cannot exercise authority

that Congress intended to withhold. In this instance, and for

reasons already discussed, Congress intended to withhold from

the Attorney General the power to exercise her discretion solely

on the single factor of firm resettlement.

CONCLUSION

The concept of firm resettlement obviously is closely

connected to refugee and asylum law, the overriding objective

of which is generally accomplished when the refugee finds a

safe haven anywhere. Rosenberg v. Yee Chien Woo, 402 U.S.

49 (1971).

10

But Congress obviously had the Woo case before it when it

wrote the current refugee and asylum provisions in 1980. And

yet it still omitted a firm resettlement bar from the asylum

provision of §208. Why? The only logical answer is that

despite Woo, it saw the possit ‘lity that under compelling

circumstances, the Attorney General ought to grant asylum

despite the refugee’s firm resettlement elsewhere.

For example, what if the country of firm resettlement refuses

to permit the refugee to return from the United States? What

if conditions in that country have changed in some important

aspect which would make it an extreme hardship for the

refugee to return? What if a United States government agency

had promised the asylum applicant that he or she could live in

the United States in return for service to American forces?

None of this means opening the flood gates to undeserving

people would seek to “bootstrap” their way into a refuge here

by circumventing the ordinary rules for admission to the United

States. The Attorney General still has the discretion to deny

such applications in the exercise of discretion and could adopt

a tule providing for the denial of asylum to firmly resettled

applicants in all but the most compelling or unusual cases.

Ironically, the court below noted that “it is precisely to cope

with the unexpected that Congress deferred to the experience

and expertise of the Attorney General in fashioning §208.” 79

F. 3d at 939. Exactly. But how can the Attorney General

follow that mandate when her hands are tied by her own

regulation precluding the exercise of discretion in the

unexpected case on the basis of one single factor? She cannot.

For all of the foregoing reasons, petitioners respectfully urge

the Court to grant this petition.

Donald Ungar

June 21, 1996 Attorney for Petitioners

APPENDIX - !a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Pao YANG; YING YANG; Jammy | No. 94-70439

——— | on

oe A72-399-329 '

escaaitaai A72-399-330

v. - = AT72-399-331

IMMIGRATION AND NATURALIZATION A72-399-332

SERVICE, A72-399-333

Respondent. A72-399-334

OPINION

Filed March 27, 1996

Before: James R. Browning, William C. Canby, Jr. and

Cynthia Holcomb Hall. Circuit Indvoec

Opinion by Judge Hall

The petitioners were denied asylum in the United States

under a regulation which categorically precludes asylum for

refugees who have “firmly resettled” in another country. See

8 C.F.R. § 208. 14(c)(2) (1994).* They argue that the regula-

tion is ultra vires, and ask us to-remand their cause to the

Immigration and Naturalization Service (“INS”) for consider-

ation on the merits. We have jurisdiction over this timely

appeal pursuant to 8 U.S.C. § 1105a(a). Finding that the regu-

lation does not violate its enabling statute, we deny the peti-

tion.

I

The petitioners are a Hmong family from Laos. They claim

that during the Vietnam War, members of their family cooper-

ated with the American military and CIA against the commu-

‘The regulation is now found at 8 C.F.R. § 208.14(d)(2) (1995).

2a

Yano v. INS

nists. In return, they say, they received promises of asylum in

the United States.

When the Pathet Lao came to power in Laos in 1975, peti-

tioner Pao Yang, his wife Ying, and others of their extended

family fled to Thailand. They claim that they immediately

sought passage to the United States, but that the American

government denied their request for asylum. For three years

the family remained in a Thai refugee camp, until the French

government offered them admission to France as refugees.

The Yangs accepted the French offer, they say, because Thai

authorities threatened them with deportation to Laos if they

refused.

Pao and Ying Yang thus took refuge in France, where they

remained for fourteen years and had four children, who are

also petitioners in this case. In spite of this long period of resi-

dence in France, the BIA determined that under French law

the family remained foreign refugees rather than French citi-

zens or permanent residents. It is unclear whether the Yangs

either applied or became eligible for permanent residence in

France. In any event, they maintain that they never intended

to remain in France. Pao Yang attests that the family consid-

ered France merely a stopping point on their way to the

United States, but that the French government refused them

travel documentation until 1991. Once they obtained their

documents, the parents came to the United States as visitors.

The children followed.

The Yangs overstayed their visas, and the INS ordered

them to show cause. On January 28, 1994, an immigration

judge (“I”) found them deportable under section

241(a)(1)(B) of the Immigration and Nationality Act (“INA”),

8 U.S.C. § 1251(a)(1)(B). In reviewing their application for

asylum under section 208 of the INA, 8 U.S.C. §§ 1158(a),

(c), the LJ determined that the Yangs were ineligible for relief

under the accompanying regulations, which deny asylum to

applicants who have “firmly resettled” in a third country. See

3a

Yanc v. INS

8 C.F.R. §§ 208.14(c)(2) (denying asylum to applicants firmly

resettled), 208.15 (defining “firmly resettled”).

The Yangs conceded arguendo that they were at one time

firmly resettled in France, but denied that they necessarily

retained the right under French law to return to France. Fur-

thermore, returning to Laos was not an option. According to

an INS report, the Yangs faced continuing threats to “life or

freedom” in Laos. On the basis of this advice, the J) withheld

the family’s deportation to Laos under section 243(h) of the

INA, 8 U.S.C. § 1253(h), and designated France as the fami-

ly’s destination of deportation or, in the alternative, voluntary

departure.

The Yangs appealed to the Board of Immigration Appeals

(“BIA”) solely on the basis that regulation 208.14(c)(2) was

ultra vires. The BIA summarily dismissed the appeal on June

28, 1994. The Yangs renew the claim on appeal to this court.

We review de novo the BIA’s determination of this purely

legal question regarding the requirements of the Immigration

and Nationality Act. Ghaly v. INS, 58 F.3d 1425, 1429 (9th

Cir. 1995).

i

{1} Under INS regulation 208.14(c)(2), the finding that an

alien has “firmly resettled” in a third country prior to his or

her arrival in the United States bars that alien’s eligibility for

asylum. 8 C.F.R. § 208.14(c)(2). The question presented in

this case is whether this regulation violates its enabling stat-

ute, section 208 of the INA, 8 U.S.C. § 1158(a),? which per-

*Section 208 of the INA, 8 U.S.C. § 1158 states, in pertinent part:

Asylum procedure

(a) Establishment by Attorney General; coverage

The Attorney General shall establish a procedure for an alien

physically present in the United States or at a land border or port

4a

Yanc v. INS

mits the Attorney General to grant asylum as a matter of

discretion.

Section 208 gives the Attomey General discretion to grant

asylum to aliens who meet a statutory definition of eligibility.

In practice this decision is delegated to the INS, see Patel v.

INS, 638 F.2d 1199, 1201 n.1 (9th Cir. 1980), which considers

asylum applications in two stages. See Kazlauskas v. INS, 46

F.3d 902, 905 (9th Cir. 1995) (describing two-stage proce-

dure). At the first stage, the INS inquires into eligibility. An

alien is eligible if he or she is determined to be a “refugee”

within the meaning of INA section 101(a)(42)(A), 8 U.S.C.

§ 1101(a)(42)(A).° A finding of eligibility merely entitles the

alien to submit an application for asylum; it does not guaran-

tee that asylum will be granted.

of entry, irrespective of such alien’s status, to apply for asylum,

and the alien may be granted asylum in the discreuon of the

Auomey General if the Auorney General determines that such

alien is a refugee within the meaning of secuon 1101(a)(42XA)

of this ude... .

(c) Status of spouse or child of alien granted asylum

A spouse or child . . . of an alien who is granted asylum under

subsection (a) may . . . be granted the same status ....

*TiUe 8, section 110] states, in perunent part:

Definitions (a) As used in this chapter—

(42) The term “refugec” means (A) any person who 1s outside

any country of such person’s nationality or, in the case of a per-

son having no nationality, is outside any Country in which such

person last habitually resided, and who is unable or unwilling to

return to. and is unable or unwilling to avail himself or herself of

the protecuon of, that country because of persecyion or a well-

founded fear of persecution on account of race, religion, nauonal-

ity, membership in a particular social group. or poliuca) opinion

5a

Yanc v. INS

[2] At the second stage, the INS makes a discretionary

decision on the application. Section 208 does not explicitly

limit or structure this exercise of discretion, except to disqual-

ify any alien “convicted of an aggravated felony.” 8 U.S.C.

§ 1158(d).* It states only that “an [eligible] alien may be

granted asylum in the discretion of the Attorney General.” 8

U.S.C. § 1158(a) (emphasis added). As we have previously

noted, this language amounts to a “broad delegation of

power” to the Attorney General. Komarenko v. INS, 35 F.3d

432, 436 (9th Cir. 1994).

The question before us is whether the INS may exercise

this discretion by creating a rule that automatically excludes

a particular class of applicants. Under the INS regulations in

effect until October 1, 1990, the INS was to evaluate an asy-

lum application by weighing against each other a number of

equitable factors. Matter of Pula, 19 L. & N. Dec. 467, 473-74

(BIA 1987) (listing the factors to be considered for grant of

asylum); Kazlauskas, 46 F.3d at 906 (approving and applying

the Pula standards). These factors had no fixed weight, but

were to be taken together and viewed in the “totality of the

circumstances.” Pula, 19 L & N. Dec. at 474. The October

1990 regulations, which are at issue in this appeal, follow the

Pula approach, but add to the calculus categorical bars to asy-

lum for aliens in three categories,* one of which covers aliens

“firmly resettled” in a third country. 8 C.F.R. § 208.14(c)(2).

‘This provision was enacted in 1990 as an amendment to the INA.

Immigration Act of 1990, Pub. L. No. 101-649, § 501(a)(2), 104 Stat.

4978, 5048 (1990). Before 1990, section 208 placed no explicit limits on

the Attorney General’s discretion.

*The regulation states, in pertinent part:

(c) Mandatory denials. An application for asylum shall be

denied if:

(1) The alien, having been convicted . . . of a particularly

serious crime in the United States, constitutes a danger to the

community;

(2) The applicant has been firmly resettled within the mean-

ing of § 208.15; or

(3) There are reasonable grounds for regarding the alien as a

danger to the security of the United States.

8 C.F.R. 208.14.

6a

Yanc v. INS

Under the new regulation, a finding of firm resettlement

trumps any other equities in the applicant’s favor. The Yangs

argue that this rule contravenes the INA by precluding the

INS from exercising its discretion in individual cases.

We must reject the argument that regulation 208.14(c)(2)

exceeds the authority of the Attorney General if we find that

the regulation has a “reasonable foundation . . . that is, if it

rationally pursues a purpose that it is lawful for the INS to

seek.” Reno v. Flores, 113 S.Ct. 1439, 1451 (1993) (citing

Carlson v. Landon, 342 U.S. 524, 541 (1952)) (internal quota-

tions omitted). Following the doctrine announced in Chevron

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

U.S. 837 (1984), we must first consider “whether Congress

has directly spoken to the precise question at issue.” Jd. at

842-43. Thus we begin with traditional methods of statutory

. If it then appears that Congress has been silent

the specific issue, “the question for the court

Congressional silence, we should defer to the agency’s

considered judgment. /d.; Van Blaricom v. Burlington N. Ry.

Co., 17 F.3d 1224, 1225 (9th Cir. 1994).

[3] The language of section 208 is silent as to firm resettle-

ment. As discussed above, it simply grants the Attorney Gen-

eral “discretion” to grant asylum to eligible aliens, subject

only to an exception for aliens convicted of aggravated felo-

nies. 8 U.S.C. § 1158(d). The Yangs contend, first, that this

mandate to exercise discretion precludes the agency’s giving

conclusive weight to a single factor, such as firm resettlement.

In their view, Congress envisaged this “discretion” as some-

thing like an individualized accounting of every equity that

bears on a particular application. We reject this argument for

two reasons.

First, the Yangs mistakenly presume that the equitable fac-

tors announced in Pula are themselves statutorily mandatory,

7a

Yanc v. INS

and reflect a Congressional determination that these factors

must be considered in any exercise of “discretion” under sec-

tion 208. This is false. The Pula factors were not dictated by

the INA, but were created judicially by the BIA. The INS is,

presumably, free to alter or amend them, provided it does so

in a manner consistent with the text and purposes of the INA,

and without otherwise running afoul of the “arbitrary and

Capricious” standard set out in section 706(2)(A) of the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A). Regula-

tion 208.14(c)(2) may or may not conflict with Pula;* this is

irrelevant because both are instruments of delegated discre-

tion.

Second, it is a well-established principle of administrative

law that an agency to whom Congress grants discretion -may

elect between rulemaking and ad hoc adjudication to carry out

its mandate. American Hosp. Ass’n v. NLRB, 111 S. Ct. 1539,

1543 (1991); NLRB v. Bell Aerospace Co., 416 U.S. 267, 294

(1974). As the Supreme Court has stated, “even if a statutory

scheme requires individualized determinations, the decision-

maker has the authority to rely on rulemaking to resolve cer-

tain issues of general applicability unless Congress clearly

expresses an intent to withhold that authority.” American

Hosp., 111 S.Ct at 1543. Thus, in American Hospital, the

Court permitted the NLRB to promulgate a rule even though

the underlying statute, which instructed the agency to make a

particularized decision “in each case,” suggested a Congres-

sional preference for ad hoc adjudication over rulemaking. Jd.

at 1542.

*We note that the BIA itself addressed the relationship between the Pula

factors and section 208 in a case which arose before the promulgation of

regulation 208.14(c)(2). In Matter of Soleimani, 20 IL. & N. Dec. __, Int.

Dec. 3118 (BIA 1989), the BIA stated that only “in the absence of any

regulatory bar” would firm resettlement be treated as one factor of rele-

vance to be weighed against others. This dictum implies that the BIA

regarded Pula only as an attempt to fill a gap left in INS regulations. We

think that the regulation at issue represents the agency’s effort to fill this

gap.

8a

Yanc v. INS

Under the INA, the term “discretion” does not supplant this

general grant of permission for rulemaking. In Reno, the

Supreme Court upheld an INS regulation in circumstances

similar to those before us. The respondents were a class of

alien juveniles who had been taken into INS custody pending

their deportation hearings. 113 S.Ct. at 1443. Custody was

intended to secure their appearance before the INS, and to

ensure their safety. Id. at 1444. The governing statute, how-

ever, permitted the Attomey General “in [her] discretion” to

release such aliens into the custody of responsible citizens. /d.

at 1443; 8 U.S.C. § 1252(a)(1) (1993). The contested regula-

tion was promulgated as an exercise of this discretion. It set

out a rule which, in essence, allowed juvenile detainees to be

released only to members of their families. Jd. at 1444. The

respondents argued, among other things, that this regulation

exceeded the authority of the Attorney General; they con-

tended that under the INA, juveniles should also have the

option to be released to other “responsible adults” unrelated

to them. /d.

The Supreme Court rejected this argument and upheld the

regulation. It held that a “ ‘blanket’ presumption of the

unsuitability of [unrelated] custodians” was not inconsistent

with an exercise of discretion under section 1252(a)(1). Jd. at

1453. Although discretion under the statute required “some

level of individualized determination . . . this [did] not mean

that the Service must forswear use of reasonable presumptions

and generic rules.” Jd. (quoting INS v. National Center for

Immigrants’ Rights, 112 S.Ct 551, 558-59 (1991)) (quotation

marks omitted). Under this analysis, an exercise of discretion

would be sufficiently “individualized” if the INS applied its

regulation fairly in individual cases, by individually determin-

ing whether each alien would be eligible for the prescribed

relief. Jd. In the present case, this standard is clearly met. The

Yangs appeared before an IJ and conceded their firm resettle-

ment in France. There can be no question that the regulation

determined the outcome of the Yangs’ application.

9a

Yanc v. INS

Recently this court considered and upheld a companion

provision to the regulation now at issue. In Komarenko, 35

F.3d 432, we held that regulation 208.14(c)(1) did not exceed

the authority of the Attorney General under section 1158(a).

The regulation categorically barred asylum for any alien con-

victed of a “particularly serious crime.” Jd. at 436. We found

the regulatory bar to be consistent with the discretionary man-

date of the statute, both because the statute did not explicitly

address the specific issue, and because the INS would be

required under the regulation “to exercise individualized dis-

cretion in determining whether a particular offense should be

counted as ‘particularly serious.’ ” Jd. Komarenko thus stands

for the proposition that “discretion” under section 1158(a)

may be exercised by rules giving fixed weight to a particular

factor.

This, however, does not conclude our inquiry under

Chevron’s first prong. The Yangs offer an independent textu-

alist argument to support their conclusion that the regulation

is ultra vires. They read INA section 208 together with sec-

tions 207 and 209, all three of which were added to the INA

enacted by the Refugee Act of 1980. Refugee Act of 1980,

Pub. L. No. 96-212, § 201(b), 94 Stat. 102 (1980), codified as

amended at 8 U.S.C. §§ 1157-1159.’ They note that while all

Section 207 states, in pertinent part:

Annual admission of refugees and admission of emergency

situation refugees

(c) Admission by Attorney General of refugees; criteria;

admission status of spouse or child; applicability of other

Statutory requirements; termination of refugee status . . .

(1) Subject to the numerical limitations [above], the Attorney

General may, in fher] discretion and pursuant to such regulations

as [she] may prescribe, admit any refugee who is not firmly reset-

tled in any foreign country...

8 U.S.C. § 1157 (emphasis added).

eam

10a

Yano v. INS

three of these sections establish procedures relating to refuge

and asylum, sections 207 and 209 explicitly bar applications

from firmly resettled aliens where section 208 does not. As

the Supreme Court has said elsewhere in the course of inter-

preting provisions of the Refugee Act, “[wJhere Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally pre-

sumed that Congress acts intentionally and purposely in the |

disparate inclusion or exclusion.” INS v. Cardoza-Fonseca,

480 U.S. 421, 432 (1987) (citing Russello v. United States,

464 U.S. 16, 23 (1983)) (internal quotation marks omitted).

However, we find important differences between the pres-

ent statutory provisions and those discussed in Cardoza-

Fonseca. In that case the Supreme Court compared the stan-

dards of proof in INA sections 243(h) and 208. Section 243(h)

required the Attorney General to withhold deportation for an

alien whose “life or freedom would be threatened” in his or

her native country. Section 208 gave the attomey discretion

to grant asylum to an alien who showed a “well-founded fear”

Section 209 states, in pertinent part:

Adjustment of status of refugees

(b) Maximum number of adjustments; recordkeeping

Not more than 10,000 of the refugee admissions authorized under

section 1157(a) of this title in any fiscal year may be made avail-

able . . . to adjust the status of an alien lawfully admitted for per-

manent residence the status of any alien granted asylum who—

(2) has been physically present in the United States for at

least one year...

(3) -continues to be a refugee .. .

(4) is not firmly resettled in any foreign country .. .

8 U.S.C. § 1159 (emphasis added).

lla

Yanc v. INS

of persecution. The two statutes clearly deployed different

and incompatible language to describe their standards of

proof. However, the government wished to avoid certain

“anomalous” results of having two separate standards of proof

in asylum cases. It therefore advised the Court to hold that the

same standard of proof applied under both sections. 480 U.S.

at 430. The Court disagreed. It reasoned that whereas section

208 expressed both subjective (“fear”) and objective (“well-

founded”) components, section 243(h) described a purely

objective inquiry. 480 U.S. at 430-31. The Court concluded

that by omitting the word fear from the language of section

243(h), and including it in section 208, Congress meant to

express its intention that the two standards of proof should

differ. Id. at 432.

The present case is not governed by Cardoza-Fonseca

because the statutory provisions before us present no compa-

rable inconsistency. Section 207 establishes the procedure by

which an alien not present in the United States may apply for

entry as a refugee. 8 U.S.C. 1157(c)(1). It gives the Attomey

General discretion to admit any refugee who is “not firmly

resettled in any foreign country” and who is “determined to

be of special humanitarian concern.” Jd. Unlike section 208,

it does not exclude serious felons. Section 208, on the other

hand, sets out procedures for granting asylum to refugees

within the United States. As discussed above, it grants the

Attorney General discretion without mentioning firm resettle-

ment or special humanitarian concem, but with an explicit

exclusion for certain felons. The plain meaning of these two

sections read together is that the Attomey General may not

admit firmly resettled refugees if they apply from abroad, but

may choose whether to grant them asylum if they manage to

apply from within the United States. Because regulation

208.14(c)(2) represents just such a choice, it appears to be

consistent with the grant of discretion described in section

208.

To hold otherwise would improperly constrain the statutory

discretion of the Attorney General. The Yangs’ “deliberate

12a

Yanc v. INS

exclusion” argument clearly justifies too much; their reason-

ing suggests that the mention of felons in section 208 pre-

cludes an INS mule barring felons under section 207.

Likewise, section 207 directs the Attorney General to admit

refugees of “special humanitarian concem;” surely this does

not prohibit humanitarian concerms from underpinning the

regulations written under the authority of section 208.

[4] Against this conclusion, the Yangs argue that firm reset-

tlement appeared in section 207 but not in 208 because Con-

gress intended to favor applicants already present in the

United States. They contend that this policy is evident in other

provisions of the INA, which, for example, allow aliens ille-

gally present in the United States to win suspension of depor-

tation, registry, or amnesty — privileges unavailable to aliens

who remain in their homelands. See 8 U.S.C. §§ 1160, 1254,

1255A and 1259. This argument is plausible. But like the

Supreme Court in Reno, 113 S.Ct. at 1453 n.8, we think it

preferable to divine Congressional intent from the statute in

issue before we look elsewhere for indications of the applica-

ble policy. According to section 208, Congress intended to

permit the Attommey General to decide how best to address the

question what weight to attribute to firm resettlement in the

asylum process with respect to aliens present in the United

States. Furthermore, we think the regulation makes reasonable

sense, for reasons we discuss below.

The second half of the Yangs’ textualist attack upon the

regulation focuses on the relationship between sections 208

and 209. Here again, the analogy with Cardoza-Fonseca is

inapt. Section 209 permits a section 208 asylee to become a

“permanent resident” after one year of physical presence in

the United States, provided the alien is not firmly resettled in

another country. 8 U.S.C. § 115%b); 8 C.F.R. § 209.2(a)iv)

(1994). As the Yangs rightly point out, section 209 thus con-

templates that an alien may have been granted asylum under

section 208 even though he or she had firmly resettled else-

where. Yet under the regulation a firmly resettled alien would

l3a

Yano v. INS

never have been granted asylum. Therefore, they argue, regu-

lation 208.14(c)(2) renders the firm resettlement provision of

section 209 superfluous. Be this as it may, we again find no

inconsistency. Section 209 clearly allows for the possibility

that the Attomey General might grant asylum to a firmly

resettled alien. However, it does not demand that she do so.

Section 209 is pointedly silent with respect to how the Attor-

ney General should exercise her discretionary power under

section 208.

[5] Thus we conclude our inquiry under Chevron’s first

prong: Congress has been silent on the relevance of firm

resettlement to asylum applications under section 208. Mov-

ing on to Chevron’s second prong, we must now ask whether

regulation 208.14(c)(2) reflects a permissible construction of

the statute. There can be no question that it does. In

Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971), the

Supreme Court held that the INS must take firm resettlement

into account in determining whether an applicant met the stat-

utory definition of a refugee. Jd. at 54-55 (citing “the central

theme of all 23 years of refugee legislation—the creation of

a haven for the world’s homeless people”). Firm resettlement

has long been a decisive factor in asylum policy. Even before

the regulation was promulgated in 1990, firm resettlement

seems to have precluded a grant of asylum in practice. See

Matter of Soleimani, Int. Dec. 3118 (observing that “a finding

that an alien has firmly resettled in a third country would nor-

mally preclude a grant of asylum as a matter of discretion”).

Nothing in the Refugee Act or its legislative history alters

the long-standing significance of firm resettlement to the asy-

lum process. The stated purpose of the Act

declares that it is the historic policy of the United

States to respond to the urgent needs of persons sub-

ject to persecution in their homelands... . The Con-

gress further declares that it is the policy of the

United States to encourage all nations to provide

as sipped.

14a

Yanc v. INS

assistance and resettlement opportunities to refugees

to the fullest extent possible.

... The objectives of this Act are to provide a per-

manent and systematic procedure for the admission

to this country of refugees of special humanitarian

concem to the United States, and to provide compre-

hensive and uniform provisions for the effective

resettlement and absorption of those refugees who

are admitted.

Refugee Act of 1980, § 101. Regulation 208.14(c)(2) is fully

consistent with these aims. Congress intended to give relief to

individuals “subject to persecution in their homelands.”

Because firmly resettled aliens are by definition no longer

subject to persecution, the regulation creates no conflict with

this aim. Moreover, the regulation seems directly to

“encourage” other nations “to provide assistance and

resettlement.” Finally, to the extent that the Act’s purposes

are procedural, the regulation does not impede them.°

[6] Furthermore, we cannot say that regulation 208. 14(c)(2)

represents an unreasonable exercise of the Attorney General’s

discretion. Without this regulation, a firmly resettled alien liv-

ing abroad might circumvent section 207 by coming illegally

to the United States and applying under section 208. Congress

need not have foreseen the “bootstrapping” problem for this

rationale to support the regulation; it is precisely to cope with

the unexpected that Congress deferred to the experience and

*The legislative history contains no discussion as to why Congress

chose not to mention firm resettlement in section 208. See S. Rep. No.

256, 96th Cong., 2d Sess., reprinted in 1980 U.S.C.C.A.N. 141; HR.

Conf. Rep. No. 781, 96th Cong., 2d Sess., reprinted in 1980 U.S.C.C.A.N.

160. We also note that the INS offered no explanation for the firm resettle-

ment bar in promulgating the regulations, nor did outside commentators

appear to bring the issue to their attention. See 55 Fed. Reg. 30,674-79

(1990); 53 Fed. Reg. 11,300, 11,306 (1988); see also, 52 Fed. Reg. 32,552

(1987); 45 Fed. Reg. 37,392 (1980).

15a

sete

i

Yanc v. INS :

expertise of the Attorney General in fashioning section 208.

Regulation 208.14(c)(2) effectively harmonizes sections 207

and 208 by closing a loophole incentive to illegal immigra-

tion. See also, Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir.

1994) (Regulation 208.14(c)(2) “preclude[s} a deportable

alien from bootstrapping an asylum claim simply by unilater-

ally severing his existing ties to a third country... .”).

iil

Because we find that regulation 208.14(c)(2) contravenes

neither the letter nor the spirit of its enabling statute, the peti-

tion is DENIED.