Opposition Brief — Yang v. Immigration & Naturalization Service

Baa A Supreme Court, U.S.

(») FILED

No. 95-2065 AUG 2 6 1996

K

In the Supreme Court of the Gnited States

OCTOBER TERM, 1995

PAO YANG, ET AL., PETITIONERS

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

WALTER DELLINGER

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

PATRICIA M. CONNALLY

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Section 208(a) of the Immigration and Nationality

Act (INA), 8 U.S.C. 1158(a), provides that an alien

“may be granted asylum in the discretion of the

Attorney General” if the Attorney General deter-

mines that the alien is a refugee. In a regulation, 8

C.F.R. 208.14(d)(2), the Attorney General has provided

that an alien shall be denied asylum if the alien has

been “firmly resettled” in a third country. The

question presented is whether that regulation is an

abuse of the Attorney General’s discretion under the

INA or contrary to law.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

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

Council, Inc., 467 U.S. 837 (1984) .....c.ceccececeeecceecees 3, 5

Diaz-Escobar v. INS, 782 F.2d 1488 (9th Cir.

SEE shisecbetusetstdnaabtubsndiinnsdadinivadbinddadehensshbccresercoveveverce 5

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ........ 5

Komarenko v. INS, 35 F.3d 432 (9th Cir. 1994) ...... 5

Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971) ...... 7,8

Statutes and regulations:

Immigration and Nationality Act, 8 U.S.C. 1101

et seq.:

EES a ee ne 3, 6

§ 207(c)(1), 8 U.S.C. 1157(c)(1) ..........cccccccseeeseeeee 3

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§$ 209(b)(4), 8 U.S.C. 1159(b)(4) oo... eeeeeeeeeeeceeees 6, 7

§ 209(b)(5), 8 U.S.C. 1159(b)(5) oo... eeeceeeeeee 4

8 C.F.R.:

Section 208.14(c)(Z) (1994) .........cccccccccccsssscosseeceseees 2

Section 208.14(d)(2) (1996) ...:.....cecccccccscssccesesseseeeces 2,4

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1995

No. 95-2065

PAO YANG, ET AL., PETITIONERS

v.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

15a) is reported at 79 F.3d 932. The opinion of the

Board of Immigration Appeals (App., izfra, la-3a) is

unreported. The oral decision of the immigration

judge (App., infra, 4a-9a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 27, 1996. The petition for a writ of certiorari

was filed on June 24, 1996. -The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. 1254(1).

STATEMENT

1.. Petitioners are a family of a husband, wife, and

four minor children, all of whom are citizens of Laos

(1)

(although the children were born in France). Peti-

tioners are members of the Hmong ethnic group, and

they claim that members of their family assisted the

United States during the Vietnam War. The parents

fled from Laos to Thailand after a Communist regime

came to power in 1975. After three years in Thai

refugee camps, the parents were offered, and accepted,

refuge in France. They remained there for 14 years.

Pet. App. la-2a.

In 1991, petitioners entered the United States on

nonimmigrant visas. After they overstayed their

visas, the Immigration and Naturalization Service

(INS) commenced deportation proceedings. Peti-

tioners conceded deportability but applied for asylum

and withholding of deportation. The immigration

judge (IJ) denied the applications for asylum on the

basis of (what is now) 8 C.F.R. 208.14(d)(2),” which

provides that “[aJn application for asylum shall be

denied if * * * [t]he applicant has been firmly

resettled” in a country other than his or her country

of nationality. The IJ noted that petitioners had

conceded that they had in fact been “firmly resettled”

in France, as that phrase is used in the regulation.

App., infra, 3a. The IJ did, however, grant with-

holding of deportation to Laos. Jd. at 8a. Accordingly,

petitioners are subject to deportation to France. /d.

at 9a. The Board of Immigration Appeals summarily

dismissed petitioners’ appeal. /d. at 3a.

2. The court of appeals affirmed. Pet. App. la-15a.

The court rejected petitioners’ contention that the

regulation barring asylum to applicants who have

been firmly resettled in a third country is an imper-

* That Section was previously designated as 8 C.F.R.

208.14(c)(2) (1994).

aia

missible exercise of the Attorney General’s discre-

tion to grant or deny asylum under the INA.

Applying the analysis set forth in Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984), the court first considered “whether

Congress has directly spoken to the precise question

at issue.” Pet. App. 6a. The court noted that the lan-

guage of the relevant provision governing asylum,

Section 208 of the INA (8 U.S.C. 1158), “is silent as

to firm resettlement. * * * [I]t simply grants

the Attorney General ‘discretion’ to grant asylum

to eligible aliens.” Pet. App. 6a. And the court

concluded that, in exercising that discretion, the

Attorney General was entitled to rely on rulemaking

to resolve issues of general applicability (such as the

“firmly resettled” issue) rather than to resolve such

issues anew in each individual case. /d. at 7a-8a.

The court also rejected petitioners’ argument that

Section 208, when read together with Sections 207

and 209 of the INA, manifests a specific congressional

intent that even refugees who have been firmly

resettled in third countries should be able to obtain

asylum in the United States. Pet. App. 9a-12a. The

court acknowledged that Section 207(c)(1) (8 U.S.C.

1157(c)(1)), which governs the admission of refugees

from outside the United States, authorizes the

Attorney General to “admit any refugee who is not

firmly resettled in any foreign country,” whereas

Section 208(a), which governs asylum for aliens

physically present here, does not contain any similar

language. But the court concluded that the difference

in language meant simply that Congress left to the

discretion of the Attorney General the question

whether aliens physically present here but firmly

resettled elsewhere should receive asylum:

The plain meaning of these two sections read

together is that the Attorney 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 [the regulation] repre-

sents just such a choice, it appears to be con-

sistent with the grant of discretion described in

[Slection 208.

Pet. App. lla.

The court also rejected petitioners’ reliance on

Section 209 of the INA, which provides that an alien

granted asylum under Section 208 may become a

permanent resident after one year of physical pre-

sence in the United States, provided that the alien “is

not firmly resettled in any foreign country.” 8 U.S.C.

1159(b)(5). The court acknowledged that Section 209

contemplates the possibility that an alien might be

granted asylum under Section 208, even though he or

she had been firmly resettled elsewhere. But, the

court noted, while “Section 209 clearly allows for the

possibility that the Attorney General might grant

asylum to a firmly resettled alien * * * it does not

demand that she do so. Section 209 is pointedly silent

with respect to how the Attorney General should

exercise her discretionary power under [Slection

208.” Pet. App. 18a.

ARGUMENT

Petitioners renew their contention that the

Attorney General’s regulation, 8 C.F.R. 208.14(d)(2),

by precluding persons firmly resettled in third

countries from being granted asylum, contravenes

the INA. The decision below is correct, and it does

not conflict with any decision of this Court or any

a aT NNN rea

5

other court of appeals; further, petitioners them-

selves state that “this [case] is not likely to affect a

lot of people.” Pet. 4. Further review is therefore not

warranted.

1. Section 208(a) of the INA, 8 U.S.C. 1158(a), pro-

vides that an alien physically present in the United

States or at a port of entry “may be granted asylum in

the discretion of the Attorney General if the

Attorney General determines that such alien is a re-

fugee within the meaning of [8 U.S.C. 1101(a)(42)(A)].”

Asylum is thus a “two-part process involving a

determination of statutory eligibility and a discre-

tionary determination once eligibility is established.”

Diaz-Escobar v. INS, 782 F.2d 1488, 1491 (9th Cir.

1986). “{AJn alien who satisfies the applicable stan-

dard under [Section] 208(a) does not have a right to

remain in the United States; he or she is simply

eligible for asylum, if the Attorney General, in [her]

discretion, chooses to grant it.” INS v. Cardoza-

Fonseca, 480 U.S. 421, 443 (1987).

The INA places no express limit on how the

Attorney General may exercise her discretion, and

“(wlhether or not a ‘refugee’ is eventually granted

asylum is a matter which Congress has left for the

Attorney General to decide.” Cardoza-Fonseca, 480

U.S. at 450. The INA provides only that the alien

“may be granted asylum in the discretion of the

Attorney General” (8 U.S.C. 1158(a)), language that

has been construed as a broad delegation of power to

the Attorney General. See Komarenko v. INS, 35

F.3d 432, 436 (9th Cir. 1994).

This is therefore a situation in which “Congress

has explicitly left a gap for the agency to fill.”

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

Council, Inc., 467 U.S. 837, 843 (1984). Accordingly,

6

the Attorney General’s regulation identifying a cate-

gory of aliens who will not be granted asylum as

a matter of discretion must be given “controlling

weight unless [it is] arbitrary, capricious, or mani-

festly contrary to the statute.” Jd. at 844.

2. Petitioners argue (Pet. 5-7) that the regulation

is contrary to the INA because Section 207, unlike

Section 208, expressly precludes the Attorney Gen-

eral from granting relief to aliens abroad who are

firmly resettled in third countries. Since Congress

did not include similar prohibitory language in

Section 208, they reason, it must have intended the

Attorney General to grant asylum to aliens who are

covered by that Section and who otherwise warrant

relief, even if they were firmly resettled elsewhere.

As the court of appeals pointed out, however, the

omission of the prohibitory language in Section 208

shows only that Congress did not prohibit the

Attorney General from granting asylum under that

Section to persons resettled elsewhere—not that it

required or intended the Attorney General to do so.

Pet. App. lla. Even if, as petitioners suggest, Con-

gress did look more favorably on aliens physically

present in the United States (covered by Section 208)

than those outside the country (covered by Section

207), all that can be said about that difference on this

specific issue is that “Congress intended to permit

the Attorney 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.” Pet. App. 12a.

Petitioners’ argument based on Section 209(b)(4)

(8 U.S.C. 1159(b)(4)) fails for similar reasons. That

Section precludes the Attorney General from ad-

justing, to permanent resident, the status of an alien

7

who was granted asylum in the United States but was

firmly resettled elsewhere. Petitioners argue that

Congress could not have meant “to let the Attorney

General deny asylum to all firmly resettled refugees,

[because] there would be no one to bar from resident

status under [Section 209(b)(4)].” Pet. 7. But Con-

gress could well have intended to give the Attorney

General discretion to decide whether aliens resettled

elsewhere should be granted asylum, even while

deciding itself that those aliens, even if granted

asylum, should not be made permanent residents.

Section 209(b)(4) simply says nothing about the

exercise of the Attorney General’s discretion to

grant asylum under Section 208.

3. The regulation is a reasonable exercise of the

Attorney General’s discretion. It is entirely appro-

priate for the Attorney General to conclude that only

those aliens who have not reached a safe haven

elsewhere, and who therefore most legitimately need

asylum, should obtain asylum here. Indeed, firm

resettlement is an established concept that has long

been recognized as an appropriate factor to be con-

sidered in the assessment of a refugee’s entitlement

to asylum in the United States. See Rosenberg v.

Yee Chien Woo, 402 U.S. 49, 54, 56 (1971). In holding

there that the INS, in allocating immigration pre-

ferences, properly considered whether an alien who

claimed to have “fled” a Communist country was

firmly resettled elsewhere, the Court observed:

Far from encouraging resettled refugees to leave

one secure haven for another, the Act established

United States quotas as a percentage—25%—of

the refugees absorbed by all other cooperating

nations. * * * It was never intended to open the

United States to refugees who had found shelter

in another nation and had begun to build new lives.

Id. at 56. Thus, the concept that aliens firmly re-

settled elsewhere should not receive asylum here has |

long been an integral part of Congress’s refugee )

legislation and is rationally related to the goal of

sheltering only those aliens who are in genuine need

of a safe haven. See id. at 55-56.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

PATRICIA M. CONNALLY

Attorney

AUGUST 1996

APPENDIX A

U.S. DEPARTMENT OF JUSTICE

DECISION OF BOARD OF IMMIGRATION APPEALS

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

FALLS CHURCH, VIRGINIA 22041

Date: June 28, 1994

Files: A72 399 329 - San Francisco

A72 399 330

A72 399 331 =—

A72 399 332

A72 399 333

A72 399 334

IN Re: PAO YANG

YING YANG

JIMMY YANG

BAO YANG

SEYAR YANG

PHONESAVANNE YANG

IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS:

Donald L. Ungar, Esquire

909 Montgomery Street, Suite 303

San Francisco, California 94133

(la)

2a

ON BEHALF OF SERVICE:

Barry J. Pettinato

General Attorney

CHARGE:

ORDER: Sec. 241(a)(1)(B), I&N Act [8 U.S.C. §

1251(a)(1)(B)] -

In the United States in violation of law

(all respondents)

APPLICATION: Asylum

In a decision dated January 28, 1994, an immigration

judge found the respondents deportable as charged,

denied their requests for asylum under section 208 of

the Immigration and Nationality Act, 8 U.S.C. § 1158,

but granted them withholding of deportation as to

Laos under section 243(h) of the Act, 8 U.S.C., §

1253(h), and in the alternative voluntary departure.

The respondents have appealed. The respondents

have indicated, through counsel, that they do not

oppose the Service’s motion for summary dismissal of

the appeal. The Service’s motion will be granted. The

appeal will be summarily dismissed.

The regulations provide at 8 C.F.R. § 3.1(d)

(1-a)(i)(D) for the summary dismissal of any appeal, or

portion of any appeal, in which “the Board is satisfied,

from a review of the record, that the appeal lacks an

arguable basis in law or fact, or that the appeal is filed

for an improper purpose, such as to cause unneces-

sary delay” [emphasis added]. See 57 Fed. Reg. 11,570

(April 6, 1992) (to be codified at 8 C.F.R. § 3.1(d)(1-a)).

The respondents here do not contest deportability,

and they do not dispute the immigration judge’s

3a

finding that they were firmly resettled, a fact they

conceded at their hearing. Rather, they have pre-

sented a claim on appeal concerning the validity of the

regulations, which they acknowledge the Board has

no authority to review. Accordingly, based upon our

review of the instant record, we conclude that the

respondents’ appeal “involves a finding of fact or a

conclusion of law that was conceded by that party at a

prior proceeding,” and “lacks an arguable basis in law

or fact.” See 8 C.F.R. §§ 3.1(d)(1-a)(i)(B), (D).

We do not consider the case before us controlled by

Padilla-Augustin v. INS, Nos. 92-70611, 93-70351 (9th

Cir. April 21, 1994), because of significant factual

differences. Unlike the respondent in Padilla-

Augustin, supra, the instant respondents are repre-

sented by counsel and have received adequate notice

of the potential for summary dismissal of their appeal

since they were properly served with the Service’s

Motion for Summary Dismissal of the appeal. More-

over, the respondents have indicated that they do not

oppose summary dismissal of the appeal. They admit

that they are appealing to the Board solely to avoid a

determination that they failed to exhaust their admin-

istrative remedies when their case appears before the

Court of Appeals.

ORDER: The appeal is summarily dismissed under

the provisions of 8 C.F.R. §§ 3.1(d)(1-a)(i)(B), (D).

/s/ERED W. VACCA

FOR THE BOARD

4a

APPENDIX B

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

SAN FRANCISCO, CALIFORNIA

January 28, 1994

File No.: A 72 399 329-334

IN THE MATTER OF: PAO YANG

YING YANG

JIMMY YANG

BAO YANG

SEYAR YANG

PHONESAVANNE YANG,

RESPONDENTS

IN DEPORTATION PROCEEDINGS

CHARGE: Deportability under Section 241(a)(1)(B) of

the Immigration and Nationality Act,

remained in the United States for longer

period than permitted as a nonimmigrant.

APPLICATIONS: Asylum under Sections 208(a) and

208(c) of the Act; Withholding of

deportation as to Laos under Sec-

tion 243(h) of the Act; Voluntary

departure, in lieu of deportation

under Section 244(e) of the Act.

5a

ON BEHALF OF RESPONDENT:

Donald L. Ungar, Esq.

909 Montgomery Street

San Francisco, Ca.

ON BEHALF OF SERVICE:

Barry J. Pettinato, Esq.

DECISION OF THE

IMMIGRATION JUDGE

The respondents, Pao Yang and Ying Yang, are

adults and are husband and wife, respectively. They

are nationals and citizens of Laos. The four other

respondents are the four minor children of Pao Yang

and Ying Yang. Although these four children were

born in France, it appears to the Court that they are

in fact citizens of Laos.

Each of the respondents has been charged with

deportability under Section 241(a)(1)(B) of the Immi-

gration and Nationality Act on the ground that each

respondent has remained in the United States for a

longer period than permitted as a nonimmigrant.

Through counsel each one of the respondents has

conceded that the allegations in the Orders to Show

Cause issued against each respondent are true, and

that each respondent is deportable as charged.

Accordingly, I find that deportability has been estab-

lished by clear, convincing, and unequivocal evidence

as required in Woodby v. INS, 385 U.S. 276 (1966).

Therefore, I find each respondent to be deportable

under Section 241(a)(1)(B) of the Act as charged.

The respondents have applied for several forms of

relief from deportation. First, Mr. Pao Yang has

applied for asylum under Section 208(a) of the Act.

6a

His five co-respondents are named on his application

as derivative beneficiaries of the application under

Section 208(c) of the Act. Each of the respondents is

also considered to have made a companion application

for withholding of deportation as to Laos under

Section 243(h) of the Act. Last, each of the respon-

dents has applied for the privilege of voluntary

departure, in lieu of deportation, under Section 244(e)

of the Act.

I will consider first Mr. Yang’s application for

asylum under Section 208(a) of the Act. Of necessity,

the Court’s decision on that application will also be

the decision on the applications of his five co-

respondents for asylum under Section 208(c) of the

Act.

In the course of the hearing conducted on January

28, 1994, and upon review of the applications for

asylum, which are part of the

record in these proceedings, counsel for Mr. Yang

and his five co-respondents conceded that Mr. Yang

and the other respondents are in fact “firmly

resettled” in France as that term is used in Section

208.14(c)(2), and Section 208.15 of Title 8 of the Code of

Federal Regulations. In these circumstances, the

Court is obligated, under Section 208.14(c)(2) of Title

8 of the Code of Federal Regulations, to deny Mr.

Yang’s application for asylum. If Mr. Yang’s

application is denied, it follows that the applications of

his five co-respondents, under Section 208(c) of the

Act, must also be denied.

As to the applications for withholding of deporta-

tion as to Laos under Section 243(h) of the Act, the

Court notes that the respondents have previously

applied for asylum and withholding of deportation

before the asylum office of the Immigration and

Ta

Naturalization Service. In the course of those pro-

ceedings and Immigration and Naturalization Service

indicated in a letter of October 2, 1992, that although

it was the Service’s determination to deny asylum, it

was the Service’s intent to grant Mr. Yang’s applica-

tion for withholding of deportation as to Laos. This

notation appears on page 3 of the letter of October 2,

1992. A copy of the letter is part of Exhibit 3 in Mr.

Yang’s file in this proceeding.

In the Court’s view, the only matter that required

some consideration regarding that application for

withholding of deportation, was the question whether

in fact Mr. Yang and the five co-respondents were or

were not citizens of France. The reason, of course, is

that if they are citizens of France, withholding of

deportation to Laos would not be necessary to them.

The Court’s concern was created by an affidavit that

bears the signature of Mr. Yang and his spouse. This

affidavit dated September 15, 1992, is also a part of

Exhibit 3 in Mr. Yang’s case. This affidavit indicates

that Mr. and Ms. Yang at some point became French

citizens. During the course of the hearing, Mr. Yang

testified that he and his spouse signed this affidavit

before any typewriting was placed on the piece of

paper that they signed. Mr. Yang does not know how

the statement regarding French nationality came to

appear in the affidavit, although he does confirm the

truth of the other statements on the affidavit.

Accordingly, further evidence was presented to the

Court regarding the nationality of this family. First

of all, the Court examined the refugee travel docu-

ments of Mr. and Ms. Yang. The Court notes that

these refugee travel documents have expired, and the

originals of these documents indicate that they have

not been extended. The Court also notes that the

8a

United States visas that were printed into these

refugee document indicates that all four of the young

children were included as travelers on these refugee

travel documents.

The Court also reviewed a French document

entitled a “Fiche Famiale,” which is also a part of

Exhibit 3 in these proceedings. This document ap-

pears to be a type of family registry. It does not

indicate that the persons listed thereon are French

nationals or citizens. The Court also examined two

certificates of refugee status and statelessness is-

sued by the French government to Mr. and Ms. Yang

on August 13, 1992, and May 13, 1993 respectively. It

appears that these documents verify that Mr. and Ms.

Yang remain refugees in France (that is, refugees of

Laotian nationality), although the Court does feel

that issuance of these documents after the arrival of

the respondents in the United States may have been

somewhat unusual.

In any event, the weight of the evidence in this case

does convince the Court that the respondents in fact

are not nationals of France, although it does appear

clear to the Court that the respondents were firmly

resettled in France.

Accordingly, in these circumstances the Court will

grant withholding of deportation to Laos. It does in

fact appear that each of the respondents is a Laotian

of Hmong ethnicity, and that circumstances in Laos

have not changed between the time of the service of

the letter of October 1992 and this time, so as to give

rise to a different conclusion regarding withholding

of deportation.

9a

ORDER

Accordingly, IT IS THE ORDER OF THIS

COURT that the application of each one of these

respondents for withholding of deportation as to Laos,

should be and hereby is granted.

In the event that the Service should seek alternate

countries for the respondents to return to, the Court

will also make an alternative order of voluntary

departure.

Accordingly, IT IS ALTERNATIVELY OR-

DERED that each one of the respondents be granted

the privilege of voluntarily departing the United

States, in lieu of deportation, up to and including July

28, 1994.

If the respondents do not depart the United States

in accordance with the order of voluntary departure

this order of voluntary departure this order of volun-

tary departure will automatically be converted into an

order of deportation to France, the country of firm

resettlement.

/s/LAWRENCE N. DICOSTANZO

LAWRENCE N. DICOSTANZO,

Immigration Judge

A 72 399 329-334 _ January 28, 1994