16‐3478‐ag
Yan Yang v. Barr

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT
                          ____________________

                               August Term, 2017

    (Argued: May 17, 2018                             Decided: July 2, 2019)

                             Docket No. 16‐3478‐ag

                             ____________________

YAN YANG,

                               Petitioner,

                   v.

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

                               Respondent.

                             ____________________

Before: POOLER, WESLEY, and LOHIER, Circuit Judges.

      Petition for review of a decision by the Board of Immigration Appeals,

denying Yan Yang’s application for asylum. We hold that once Yang

demonstrated the existence of changed circumstances permitting her late filing,

the Immigration Judge and Board of Immigration Appeals were obligated to
consider her entire application, because nothing in the plain language of the

statute limits review to the specific claim that formed the basis of the changed

circumstance. Accordingly, we GRANT the petition for review and REMAND

the application for asylum to the BIA for the limited purpose of granting the

application.

      Judge Wesley dissents in a separate opinion.

      Judge Lohier concurs in a separate opinion.

      Granted and REMANDED.

                   ____________________

                         GARY J. YERMAN, New York, NY, for Petitioner Yan
                         Yang.

                         STEFANIE NOTARINO HENNES, Trial Attorney,
                         Office of Immigration Litigation (Leslie McKay, Senior
                         Litigation Counsel, Office of Immigration Litigation, on
                         the brief), for Chad A. Readler, Acting Assistant Attorney
                         General, Civil Division, United States Department of
                         Justice, Washington, D.C., for Respondent William P. Barr,
                         United States Attorney General.

POOLER, Circuit Judge:

      We are asked to determine whether the Immigration and Nationality Act’s

(“INA”) exception for late filing applies only to changed circumstances


                                         2
underpinning a successful claim, or whether the changed circumstances permit

an application for asylum on multiple bases, including bases that are unrelated to

the changed circumstances. We hold that the plain language of the statute

unambiguously permits an applicant to raise multiple claims in her asylum

application, even if the changed circumstance relates only to one proffered basis

for asylum. Accordingly, we grant the petition for review and remand the

application to the Board of Immigration Appeals (“BIA”) for the limited purpose

of granting Yang’s application for asylum.1

                                BACKGROUND

      Yan Yang was born in China in 1973. In September 1992, Yang met her

husband, Shen Zhonghua, while she was working in a garment factory in

Shenzhen. On July 6, 1994, Yang and Zhonghua returned to his hometown of

Wutong Town to register their marriage with the government. Yang and her

husband were both required to submit to a mandatory physical examination at a

hospital before the local government would register their marriage. This exam



1For reasons explained in Section II, the government abandoned any additional
challenges to Yang’s eligibility for asylum on the basis of her forced abortion in
China. Having decided the one issue on appeal, there is no other issue to be
decided.
                                          3
revealed that Yang was “pregnant without prior authorization” since she and

Zhonghua were not yet married. Certified Administrative Record (“CAR”) at

536. Yang was immediately forced to have an abortion.

      Yang entered the United States on a tourist visa on June 3, 2002, but

remained in the United States after her temporary visa expired and gave birth to

her U.S.‐citizen son in October 2004. In July 2012, Yang began attending a

Christian church and was baptized into the church on September 23, 2012.

      On her own initiative, prior to any removal proceedings, Yang

affirmatively filed an application for asylum on October 17, 2012 on two bases:

her forced abortion in China and her recent conversion to Christianity. Though

asylum applications must be filed within one year of the applicant’s arrival in the

United States, 8 U.S.C. § 1158(a)(2)(B), applications may be filed beyond that

deadline if the applicant can demonstrate “changed circumstances which

materially affect the applicant’s eligibility for asylum,” 8 U.S.C. § 1158(a)(2)(D).

Yang submitted her application over a decade after her arrival to the United

States, but within one month of her conversion to Christianity.2



2The applicant must file her application within a “reasonable period” in light of
the changed circumstances. 8 C.F.R. § 1208.4(a)(4)(ii).
                                        4
      On December 11, 2012, however, she was served with a Notice to Appear

charging her with removability for overstaying her visa. On March 11, 2015, the

Immigration Judge (“IJ”) denied her application for asylum. The IJ determined

that the exception for “changed circumstances” applied only to Yang’s religious

asylum claim, effectively severing the application into its two separate claims.

The IJ found that Yang was credible on all counts, but that there was insufficient

evidence of persecution of Christians in China to grant the asylum application on

that basis. The IJ did not consider Yang’s asylum claim based on her forced

abortion because the IJ determined that the claim was not timely filed, but the IJ

found Yang’s story credible and granted her withholding of removal on the basis

of that claim. On September 20, 2016, the IJ’s decision was affirmed in all respects

by the BIA.

                                  DISCUSSION

       “When the BIA does not expressly adopt the IJ’s decision, but its brief

opinion closely tracks the IJ’s reasoning, this Court may consider both the IJ’s

and the BIA’s opinions for the sake of completeness.” Zaman v. Mukasey, 514 F.3d

233, 237 (2d Cir. 2008) (internal quotation marks omitted). Neither the IJ nor the

BIA offered any substantive analysis of the question facing us in this appeal,
                                         5
namely, whether a changed circumstance affecting eligibility for one asylum

claim renders the properly filed asylum application timely filed for all claims.

Instead, both the IJ and the BIA assumed that the plain language of the statute

barred the IJ from considering Yang’s forced abortion claim. Yang argues to this

Court, as she did before the BIA, that the plain language of the statute requires

consideration of her full asylum application.

      The government urges us to defer to the BIA’s decision insofar as that

decision has the “power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140

(1944); see also Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) (holding that

“interpretations contained in policy statements, agency manuals, and

enforcement guidelines, all of which lack the force of law—do not warrant

Chevron‐style deference,” but may be entitled to Skidmore deference). But because

we find there is no ambiguity in the statutory language, and that “Congress has

directly spoken to the precise question at issue,” Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837, 842 (1984), there is no need for deference or

remand under any of our existing models of deference to agency adjudication.

We additionally observe that it is undisputed that an IJ’s construction of the INA

is entitled to no deference, Li v. INS, 453 F.3d 129, 136 (2d Cir. 2006), and we have
                                           6
previously held that “the BIA’s nonprecedential single‐member decision” is not

accorded Chevron deference, because it was not “promulgated under its

authority to make rules carrying the force of law.” Rotimi v. Gonzales, 473 F.3d 55,

57 (2d Cir. 2007)(internal quotation marks omitted). There is simply no basis on

which deference is appropriate—let alone required—in this case. Because we are

asked to resolve “a pure question of statutory construction,”3 which is a question

of law “for the courts to decide,” INS v. Cardoza‐Fonseca, 480 U.S. 421, 446 (1987),

we therefore review these claims in the first instance, without remanding to the

agency. Our review of this question of law is de novo. Adams v. Holder, 692 F.3d

91, 95 (2d Cir. 2012).

I.    Plain Language of the Statute

      “Our analysis begins with the text” of Section 1158(a)(2)(D), “and we look

to both the language itself and the specific context in which that language is

used.” Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S.Ct. 883, 893 (2018)




3
 Regarding the issue before us on appeal, there are no decisions from other
circuit courts of appeals that directly address it, and there are no precedential
BIA opinions on it. Indeed, the BIA has been inconsistent in its non‐precedential
interpretations of § 1158(a)(2)(D). Compare CAR at 45‐46, with In re Chen & Wu,
Nos. A089 918 765 & A089 918 766 (B.I.A. Apr. 13, 2012).
                                          7
(internal quotation marks and brackets omitted). In doing so, we focus our

attention on two key phrases within the section that are dispositive of the

question presented in this appeal.

      A. “An application for asylum”

      In our first look at the plain language of the statute, we observe that the

relevant section clearly states that “[a]n application for asylum of an alien may be

considered . . . if the alien demonstrates . . . changed circumstances which

materially affect the applicant’s eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(D)

(emphasis added). The plain language of the statute thus makes clear that

changed circumstances provide for the consideration of an application for asylum,

as opposed to a specific claim for asylum.

      This reading of the plain language is reinforced by the specific context in

which this provision appears. In aid of this effort, we examine the section

headings and organizational structure of the relevant section of the INA.

“Although section headings cannot limit the plain meaning of a statutory text,

they supply cues as to what Congress intended.” Merit Mgmt., 138 S.Ct. at 893

(internal citation and quotation marks omitted). The section headings and

organization of this section of the INA evince a clear intent to address the ability
                                           8
to file an application for asylum, rather than an ability to be granted asylum or

the ability to file a particular asylum claim.

      Indeed, the relevant section of the INA is titled “Authority to apply for

asylum.”4 That section is further divided into three parts: (1) In general, (2)

Exceptions, and (3) Limitations on judicial review. The first part (“In general”)

establishes the basic framework establishing the authority to apply for asylum:

      (1)   In general. – Any alien who is physically present in the United States
      or who arrives in the United States (whether or not at a designated port of
      arrival and including an alien who is brought to the United States after
      having been interdicted in international or United States waters),
      irrespective of such alien’s status, may apply for asylum in accordance
      with this section or, where applicable, section 1225(b) [regarding the
      inspection of arriving aliens]. 5

8 U.S.C. § 1158(a)(1). After laying out the basic premise regarding who may

apply for asylum, Section 1158(a) next turns to the “Exceptions” to the general



4 Section 1158 of the INA addresses asylum and is divided into five sections:
Authority to apply for asylum (subsection a), Conditions for granting asylum
(subsection b), Asylum status (subsection c), Asylum procedure (subsection d),
and Commonwealth of the Northern Mariana Islands (subsection e). The relevant
provision to this appeal appears in subsection a, titled “Authority to apply for
asylum.”
5 The immediately preceding section of the INA—Section 1157—addresses

refugees. The “In general” portion of Section 1158 appears designed at least in
part to clearly distinguish asylees from refugees and to codify the right to apply
for asylum.
                                          9
framework permitting asylum applications in order to establish three specific

situations in which foreign nationals may not apply for asylum (in other words, a

foreign national’s application for asylum may not be considered). 8 U.S.C.

§ 1158(a)(2). The statute explains that the general framework regarding asylum

applications “shall not apply:” when the foreign national may be removed to a

“safe third country,” Section 1158(a)(2)(A), when the foreign national has not

“demonstrate[d] by clear and convincing evidence that the application has been

filed within 1 year after the date of the alien’s arrival in the United States,”

Section 1158(a)(2)(B), or when the foreign national has “previously applied for

asylum and had such application denied,” Section 1158(a)(2)(C).6 The

“Exceptions” section, however, also contains an exception to the exception which

is the issue of this appeal: the existence of “changed circumstances.”7 Section

1158(a)(2)(D).




6 These exceptions are titled “Safe third country,” “Time limit,” and “Previous
asylum applications,” respectively.
7 The final portion of the “Exceptions” section addresses unaccompanied minors

and specifies that the safe third country and time limit bars “shall not apply” to
those applicants. 8 U.S.C. § 1158(a)(2)(E).
                                          10
      The exclusion from consideration of subsequent asylum applications and

applications filed after the one‐year deadline does not apply in two specific

circumstances:

      An application for asylum of an alien may be considered notwithstanding
      [the bars for late filings or successive filings], if the alien demonstrates to
      the satisfaction of the Attorney General either the existence of changed
      circumstances which materially affect the applicant’s eligibility for asylum
      or extraordinary circumstances relating to the delay in filing an application
      within the period specified in [the paragraph establishing the one‐year
      filing deadline].

8 U.S.C. § 1158(a)(2)(D). The statutory language is structured to directly refer to

the preceding portions of the section. The statute states that “[a]n application for

asylum . . . may be considered, notwithstanding [the time limit and previous

application bars] if the alien demonstrates . . . .“ Id. (emphasis added). In other

words, the general rule is that applications may not be considered when they are

filed after the time limit or when previous applications have been denied, but

this section establishes that those normal bars to applications do not apply if the

foreign national can demonstrate changed circumstances or extraordinary

circumstances regarding the filing delay. The language and structure of this

section make clear that the existence of changed circumstances “operates as an

exception” to § 1158(a)(2)(B‐C). Merit Mgmt., 138 S.Ct. at 893; see also id. (quoting

                                          11
A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 126 (2012)

(“A dependent phrase that begins with notwithstanding indicates that the main

clause that it introduces or follows derogates from the provision to which it

refers”)).

       The key observation for purposes of this appeal is that the exception is to

the bar to considering applications, not claims. Recall that the “Exceptions”

subsection is part of the larger section titled “Authority to apply for asylum” and

that the language of the relevant provision titled “Changed circumstances”

addresses only the “application for asylum,” as opposed to the specific claim or

claims within an application. Even if we were to substitute the word “request”

for “application,” as the dissent speculates Congress intended, the observation

remains the same: the exception is to the bar to considering “requests,” not

claims. An individual may make one “request” for asylum because she fears

religious persecution and because she was forced to have an abortion. Indeed,

there is simply no basis for a claim‐specific limitation in the statutory text itself,

which refers only to applications for asylum. Or, more technically, the dependent

clause containing the statutory bars derogates from the main clause providing

for the consideration of an application for asylum, with no additional limiting
                                          12
language. Rather than grapple with this textual clarity, the dissent fixates on the

context of the statute and its view of the statute’s true purpose to call into

question the “logic” of the majority view. But in doing so, and to generate

ambiguity, the dissent puts its interpretation of legislative history before plain

text.

        Indeed, an examination of “the broader statutory structure,” Merit Mgmt.,

138 S.Ct. at 893, confirms our interpretation of the language regarding “changed

circumstances.” The alternative view—that the “changed circumstance” must

relate directly to the claim on which asylum is eventually granted—runs counter

to the language and organizational structure of the statute. In essence, it would

collapse into one step the two separate steps of applying for asylum and

determining whether asylum should actually be granted. These two steps are

plainly two separate sections of the statute—Authority to apply for asylum,

Section 1158(a), and Conditions for granting asylum, Section 1158(b)—which

suggests to us that Congress assumed that determining authority to simply

apply for asylum would be a separate step from determining whether an

applicant could be granted asylum. Indeed, the asylum application itself

contemplates that an applicant may apply for asylum on multiple bases, listing
                                         13
various possible claims for asylum (based, e.g., on race, political opinion,

religion) and instructing the applicant to “check the appropriate box(es)” to

explain why they are applying for asylum or withholding of removal. U.S.

Citizenship and Immigration Services, Form I‐589, Application for Asylum and

for Withholding of Removal, Part B(1). This Court has previously articulated this

view of the two‐step process, observing that “it is not necessary for the applicant

to identify the correct ground; the fact finder should consider all or any

combination of them” when reviewing an asylum application. Osorio v. INS, 18

F.3d 1017, 1027 (2d Cir. 1994). It is clear to us that the plain language of the

statute refers to the application as a whole.

      B. “Materially affect the applicant’s eligibility for asylum”

      The government argues that “changed circumstances must relate to the

applicant’s eligibility for asylum” and asserts that this paraphrase of the

statutory language demands that we deny Yang’s petition for review. We

disagree. To state the matter very directly, though an asylum applicant is

indisputably required to demonstrate a changed circumstance that “materially

affect[s] the applicant’s eligibility for asylum,” Section 1158(a)(2)(D), the plain

language of this requirement is simply that the changed circumstance must
                                          14
“materially affect” an applicant’s eligibility for asylum. And surely that is

precisely what occurred in this case. The IJ determined that Yang had in fact

demonstrated such a changed circumstance, because it is impossible to be

religiously persecuted on the grounds of Christian faith before becoming a

Christian.

      Despite the dissent’s worry that “all an asylum seeker need do” to avoid

the one‐year bar is “allege changed circumstances,” not every “changed

circumstance” will render an applicant eligible for asylum; indeed, very few will.

But so long as the applicant can demonstrate a change in circumstance that

materially affects her eligibility to apply for asylum, there is simply nothing in

the plain statutory language to suggest—let alone demand—that only that claim

may be reviewed. As the Ninth Circuit noted in Vahora v. Holder, on which the

dissent relies, the changed circumstances exception to the one‐year filing

requirement was “intended to be broad,” not limited. 641 F.3d 1038, 1045 (9th

Cir. 2011). The text of the statute comports with this intent. We simply do not see

any portion of the statute articulating the view that the government urges upon

us. In order to argue the contrary, the dissent variously maintains that

“eligibility” means “a determination that an applicant is a refugee” and the
                                         15
applicant’s “successful showing that she is a refugee.” The use of such shifting

definitions highlights a misapprehension of the statutory context; the dissent

conflates two separate steps of the asylum process in a manner that is flatly

contradicted by the statutory text.

      Because we have carefully read the statutory text and find the meaning of

the statutory language clear and unambiguous, we have no need to look further.

Our search for meaning thus begins and ends with the statutory language itself.

See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 290 (2d Cir. 2002) (“When the

language of a statute is unambiguous, judicial inquiry is complete.”) (internal

quotation marks omitted). If a foreign national is able to demonstrate “changed

circumstances which materially affect the applicant’s eligibility for asylum,” that

individual may file their “application for asylum” “notwithstanding” the bar on

applications filed after one year of the foreign national’s arrival in the United

States.

      II. Yang’s Application for Asylum

      As dictated by the statutory language governing asylum applications,

Yang’s untimely application fell within the “time limit” exception to the general

rule permitting foreign nationals physically present in the United States to apply
                                         16
for asylum. Yang, however, successfully argued before the IJ and the BIA that

her application also fell within the “changed circumstances” exception to the

exception, because she had recently converted to Christianity. Yang’s asylum

application presented two possible bases for asylum: religious persecution and

her forced abortion in China. The IJ bifurcated Yang’s asylum application and

determined that her forced abortion claim was “time‐barred” while her religious

persecution claim was timely. CAR at 45‐46. The IJ thus considered “only her

religion‐based asylum claim.” CAR at 46.

      In doing so, the IJ found that “the respondent testified credibly and

adequately corroborated her testimony” regarding both her forced abortion and

her religious conversion. CAR at 45. The IJ also found that “the respondent has

not demonstrated a well‐founded fear of future persecution on account of her

religion” and thus denied her asylum claim. CAR at 47. The IJ, however, granted

Yang withholding of removal under 8 U.S.C. § 1231(b)(3) based on her forced

abortion in China. The IJ explained that Yang “testified credibly and provided

substantial evidence to demonstrate that she was coerced into an abortion in 1994

because she became pregnant without authorization.” CAR at 47. The IJ properly

relied on Cao v. U.S. Department of Justice in holding that Yang therefore had an
                                        17
“irrebuttable presumption of a well‐founded fear of future persecution” and thus

qualified for withholding of removal on that basis. 421 F.3d 149, 156 (2d Cir.

2005). The BIA affirmed the IJ’s decision on all grounds.

      As Cao recounts, in 1996 Congress amended the definition of “refugee” in

the INA to make forced abortions and other population control measures an

explicit ground for asylum:

      For purposes of determinations under this chapter, a person who has been
      forced to abort a pregnancy or to undergo involuntary sterilization, or who
      has been persecuted for failure or refusal to undergo such a procedure or
      for other resistance to a coercive population control program, shall be
      deemed to have been persecuted on account of political opinion . . . .

8 U.S.C. § 1101(a)(42); see also Cao, 421 F.3d at 155. As Yang’s case reminds us, this

statutory language does not guarantee that an individual who has undergone a

forced abortion will be eligible for asylum; in addition to demonstrating past

persecution or a well‐founded fear of future persecution, an asylum applicant

must show that she meets all the other criteria for asylum and does not fall

within one of the statutory bars preventing her from receiving asylum.

      Apart from the timeliness issue, the government has raised other no

challenge to Yang’s application for asylum on the basis of her forced abortion in

China. Because we have determined that it was error for the IJ to bifurcate Yang’s

                                         18
asylum application and that the “changed circumstances” of her religious

conversion made her entire asylum application timely filed, and because the IJ

determined Yang was credible on the forced abortion claim, Yang’s application

for asylum must therefore be granted

                                  CONCLUSION

      The plain language of the statute compels our conclusion today that the

“changed circumstances” exception to the one‐year deadline for an asylum

application refers to the entire asylum application, rather than the individual

claim. We observe that this reading of the statutory language merely provides an

opportunity for an application to be considered by the IJ. The applicant is still

required to demonstrate asylum eligibility before that status will be granted.

      Yang’s petition for review is thus GRANTED and her underlying asylum

application is REMANDED to the BIA for the limited purpose of granting the

application.




                                         19
WESLEY, Circuit Judge, dissenting:

      The majority takes comfort in the language of 8 U.S.C. § 1158(a)(2)(D). The

text, the majority concludes, unambiguously permits a foreign national to evade

the one‐year time bar for each and every one of her asylum claims, so long as the

application contains at least one claim for which she can establish changed

circumstances. I disagree.

      The changed‐circumstances exception is a measure of legislative grace; it

excuses the one‐year limit where recent changes materially affect the alien’s

asylum eligibility. But “eligibility” is a discrete matter. It is particular to the facts

and circumstances of each claim for asylum. The majority’s reading of the statute,

in contrast, extends that act of grace to cover all claims so long as any one claim

meets the changed‐circumstances exception, and it does so based on a strained

reading of the phrase “application for asylum.”

      The majority’s interpretation is, at best, one of two plausible interpretations.

When that is the case, the statute is ambiguous, and we may consider other

interpretive tools—including Congressional intent. Natural Resources Defense

Council, Inc. v. Muszynski, 268 F.3d 91, 98 (2d Cir. 2001). Let’s begin with the text. 8

U.S.C. § 1158(a)(2)(D) provides:
      An application for asylum of an alien may be considered,
      notwithstanding [time limitations], if the alien demonstrates to the
      satisfaction of the Attorney General either the existence of changed
      circumstances which materially affect the applicant’s eligibility for
      asylum or extraordinary circumstance relating to the delay in filing
      an application within the [statutory time frame].

      The majority concludes that “application” refers to the physical document

that a putative asylee submits to the Department of Homeland Security. Supra at

13 (“the asylum application itself contemplates that an applicant may apply for

asylum on multiple bases, listing various possible claims for asylum . . . and

instructing the applicant to ‘check the appropriate box(es)’ to explain why they are

applying for asylum or withholding of removal” (quoting Dep’t of Homeland

Security Form I‐589, https://www.uscis.gov/i‐589)). The problem is that is not how

the statute uses the word.

      “[I]dentical words and phrases within the same statute should normally be

given the same meaning.” FCC v. AT & T, Inc., 562 U.S. 397, 408 (2011) (internal

quotation marks omitted). The word “application” appears throughout the statute

and therein, Congress has given it a broad, ordinary meaning: an application is a

“request.” See Application, Black’s Law Dictionary (10th ed. 2014) (defining

“application” as “[a] request or petition”). For example, 8 U.S.C. § 1187(a)(3)




                                         2
requires an alien to have a valid passport “at the time of application for

admission.”1

       I do not, nor could I, dispute that the physical form that an asylum seeker

must submit instructs the applicant to indicate the claim or claims upon which she

is seeking asylum. Supra at 13–14 (referencing Dep’t of Homeland Security Form

I‐589, https://www.uscis.gov/i‐589). In the narrowest sense, then, “an application

for asylum” is not claim‐specific: the form expressly invites an applicant to check

as many boxes as she sees fit to assert multiple claims on various grounds. The

form may allow multiple claims in one application, but there are at least three

problems with reading the statute in this way.



1 See also § 1255(a) (an immigrant’s status may be adjusted by the Attorney General if
“(1) the alien makes an application for such an adjustment, (2) the alien is eligible to receive
an immigrant visa and is admissible to the United States for permanent residence, and
(3) an immigrant visa is immediately available to him at the time his application is filed”
(emphasis added)); id. § 1229b(b)(1)(A) (providing that the Attorney General may cancel
removal and adjust an alien’s status under some limited conditions, including where the
alien “has been physically present in the United States for a continuous period of not less
than 10 years immediately preceding the date of such application”); id. § 1229a(b)(4)(B)
(referring to an alien’s rights in a deportation proceeding as not applying to examining
national security evidence proffered “in opposition to the alien’s admission to the United
States or to an application by the alien for discretionary relief”); id. § 1182(a)(2)(ii)(I)
(describing an exception to a bar on admission based on criminal conduct if the alien was
a juvenile at the time of the offense and the crime took place “more than 5 years before
the date of application for a visa or other documentation and the date of application for
admission to the United States”).




                                               3
      First, there is no textual reason to assume that Congress was referring to a

physical document when it used the phrase “application for asylum.” Indeed, the

more natural reading is to give the word “application” the same meaning in this

section of the statute as it has in other sections. Substitute the word “application”

with the word “request” in section 1158(a)(2)(D) and the text reads: “A request for

asylum of an alien may be considered notwithstanding [time limitations], if the

alien demonstrates . . . the existence of changed circumstances . . . “ 8 U.S.C.

§ 1158(a)(2)(D). This reading makes § 1158(a)(2)(D) claim‐specific: the use of the

singular to describe the “application” or “request” is a strong textual signal that,

in order to evade the one‐year bar, an asylum‐seeker must demonstrate that her

untimely claim has been materially affected by changed circumstances.

      Second, giving the phrase “application for asylum” the meaning that the

majority ascribes to it ignores that § 1158(a)(2)(D) explicitly references § 1125(b),

which, in turn, describes the process for inspection of applicants for admission and

which assumes that the process is claim‐specific. See § 1225(b)(1)(B)(v) (defining

“credible fear of persecution” in the context of an “application for asylum” as “a

significant possibility, taking into account the credibility of the statements made

by the alien in support of the alien’s claim and such other facts as are known to the




                                         4
officer, that the alien could establish eligibility for asylum under section 1158 of

this title” (emphasis added)).

      Third, the statute uses the phrase “eligibility for asylum,” which refers to a

determination that an applicant “is a refugee within the meaning of section

1101(a)(42)(A).” 8 U.S.C. § 1158(b)(1)(A). The term “refugee” is defined:

      [A]ny person who is outside [his or her home country] 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.

Id. § 1101(a)(42)(A).

      Refugee claims are issue‐specific: a person may be a racial refugee, a

religious refugee, a nationality‐based refugee, a social refugee, or a political

refugee. To obtain refugee status, a person must establish that she has a complete

claim based on at least one of those categories; a half‐baked claim based on

religious persecution does not cross the finish line with an extra push from a

somewhat‐persuasive showing of political persecution. See Osorio v. I.N.S., 18 F.3d

1017, 1028 (2d Cir. 1994) (describing I.N.S. v. Elias‐Zacarias, 502 U.S. 478, 482–83

(1992) and explaining that an applicant for asylum who fears persecution for




                                         5
religious and political beliefs has two claims—one for religious asylum and one

for political asylum)). That matters here because although the physical document

called an “application for asylum” may encompass more than one claim, a

person’s “eligibility for asylum” involves one claim at a time.

      Specifically, give “eligibility” its dictionary definition: “qualified to

participate or be chosen.” Eligible, Merriam‐Webster, https://www.merriam‐

webster.com/dictionary/eligible (July 18, 2018). Thus, a person is “eligible for

asylum” if the person is “qualified to be chosen for refugee status.” A person

cannot be “qualified to be chosen for refugee status” unless she can show changed

circumstances in her home country that materially affect her successful showing

that she is a refugee. This reading of the statute makes sense—it provides a safe

haven from the one‐year time bar for applicants who, after being in the United

States for more than a year, realize that they cannot return to their home country

because they have since become refugees and going back now would be

dangerous.

      A final point on ambiguity. The majority treats asylum determinations as a

two‐step process, which they say stems from the statute’s organizational structure.

Step one relates to an alien’s ability to file an application, while step two involves




                                          6
the merits of that application. Thus, they conclude, because the one‐year bar

appears in the statutory section entitled “Authority to apply for asylum,” the

exceptions to the bar must only come into play at step one—the filing of an

application. Supra at 13–14. I acknowledge that structurally, this makes some

sense.

         But that reading creates a structural problem as well. The majority does not

address the fact that, under their interpretation, the one‐year bar (the rule) is

swallowed by the exception (changed circumstances): all an asylum seeker need

do to escape the one‐year bar for a stale asylum claim is allege changed

circumstances for an unrelated claim. As an organizational matter, this is

problematic. “Congress . . . does not, one might say, hide elephants in

mouseholes.” Whitman v. Am. Trucking Assns., Inc., 531 U.S. 457, 468 (2001).

         The majority may disagree that my interpretation of the statute is the correct

reading, but it is at least a plausible interpretation. Indeed, the majority

acknowledges that “the BIA has been inconsistent in its non‐precedential

interpretations of § 1158(a)(2)(D).” Supra at 7 n.3. The agency has issued two

decisions interpreting the statute; one supports the majority view and the other

mine. Compare In re Chen & Wu, AXXXXXXXX & AXXXXXXXX (B.I.A. April 13, 2012)




                                            7
(unpublished) (concluding that “[t]he plain language of [§ 1158(a)(2)(D)] requires

the [alien] to demonstrate changed circumstances that materially affect her

eligibility for asylum” and that “[e]ligibility for asylum is not dependent on a

specific underlying basis of the asylum claim”) with In re Yang, AXXXXXXXX, at 7–

8 (B.I.A. March 11, 2015) (unpublished) (reproduced at CAR 45–45) (reaching the

opposite conclusion). That the BIA has been inconsistent in unpublished decisions,

though not binding on us, is a good signal that the statute has more than one

plausible reading. In short, the statute is ambiguous. Muszynski, 268 F.3d at 98.

      Moreover, even if the majority were correct about the plain language of the

statute, I would still be forced to dissent. In the “rare and exceptional

circumstances . . . where the application of the statute as written will produce a

result demonstrably at odds with the intentions of its drafters,” Congressional

intent controls. Demarest v. Manspeaker, 498 U.S. 184, 190 (1991); see also Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982) (“[I]n rare cases the literal

application of a statute will produce a result demonstrably at odds with the

intentions of its drafters, and those intentions must be controlling.”). In such cases,

courts have “reserved some scope for adopting a restricted rather than a literal or

usual meaning of [a statute’s] words where acceptance of that meaning would




                                          8
thwart the obvious purpose of the statute.” Griffin, 458 U.S. at 571 (internal

quotation marks and ellipses omitted); see also Dada v. Mukasey, 554 U.S. 1, 14–19

(2008) (in a case involving two provisions of the INA, each of which was

unambiguous on its own, “[r]eading the [INA] as a whole” and selecting the

interpretation that avoided an absurd result). Looking to the legislative history of

the provision at issue here confirms that the majority’s reading cannot be right.

      In general, the purpose of a statute of limitations is to encourage the timely

resolution of disputes before evidence is “obscured by the passage of time.” See

United States v. Morgan, 380 F.3d 698, 703 (2d Cir. 2004) (quoting Toussie v. United

States, 397 U.S. 112, 114–15 (1970)). The purpose of § 1158 in particular is to

encourage asylum seekers to file within a year of entering the United States and to

thereby discourage fraudulent or baseless claims. See Vahora v. Holder, 641 F.3d

1038, 1045 (9th Cir. 2011) (“Congress’s paramount objective in enacting the one‐

year bar was to prevent fraudulent claims.”) (citing 141 Cong. Rec. E1635 (Aug. 3,

1995)).

      But Congress was also mindful that life is not static. Country conditions can

change with an election, a coup, or social instability; and people can experience

life‐changing conversions of conscience and faith. These kinds of changes are what




                                         9
Congress had in mind when it passed the changed‐circumstances exception.

Senator Hatch, a major proponent of the one‐year bar and the changed‐

circumstances exception, noted that the legislation was intended to address

“situations like those in which the situation in the alien’s home country may have

changed, the applicant obtains more information about likely retribution he or she

might face if the applicant returned home, and other situations that we in Congress

may not be able to anticipate at this time.” 142 Con. Rec. S11838–40 (Sept. 30, 1996)

(statement of Sen. Hatch). The exception, therefore, was designed to capture cases

where an immigrant’s situation changed in an unpredictable way, making his or

her return unsafe. It built in a measure of fairness to asylum seekers by

acknowledging the unpredictable nature of prejudice and oppression and

ensuring that should an immigrant’s personal convictions or home‐country

conditions change, the time limit will give way even if those changes arise after

the one‐year bar expires. It was, in other words, intended to create a narrow

exception, not to override the one‐year bar any time an asylum seeker has multiple

claims.

      The facts of this case illustrate the failing of the majority’s reading of the

statute. The Immigration Judge (“IJ”) found that Yang established changed




                                         10
circumstances based on her conversion to Christianity. The issue for Yang,

however, is that the IJ also found that she was not entitled to asylum on the basis

of her conversion claim because “[t]he evidence does not support a well‐founded

fear of persecution in China on account of [Yang’s] religion.” CAR at 62. Yang’s

Form I‐589 contains two claims: forced abortion and religious persecution. She is

excused for not filing her religious persecution claim within one year of entry into

the United States because her conversion occurred years later, but that changed

circumstance had no “material[] [e]ffect [on] her eligibility for asylum” predicated

on her forced abortion. There is no factual or legal connection between Yang’s

forced abortion in 1994 and her conversion to Christianity in 2012. Yang had a

strong asylum claim for forced abortion when she arrived in the United States in

2002, but for some reason she did not raise it until 2012; no circumstances related

to this claim have changed.

      The obvious purpose of the time bar was to prevent cases where an

immigrant enters the United States and only files for asylum years later. The

majority’s view of the statute abrogates that choice made by Congress. It holds

that any claim that is dependent on changed circumstances also revives claims that

would be time barred if they were raised solely on their own. The reason for




                                        11
excusing one claim is extended to cover another for which there is no excuse. What

is the logic in combining a long since time‐barred claim with a distinct, unrelated

claim that is predicated on changed conditions affecting only that “new” claim?

Why would Congress do that? The majority has not offered any explanation for

why Congress would revive stale claims like Yang’s, and it has failed to do so for

good reason. There is none.

      I realize that my view of this statute would deny Yang asylum despite her

credible testimony. The IJ did, however, grant her withholding of removal based

on the forced abortion, and she will therefore remain in the United States with her

son, should she so desire. Citizenship will not be an option for Yang, but she will

not be deported. Yang’s circumstances warrant empathy. The INA, however,

already contains a safety valve to protect people in her position. See 8 C.F.R.

§ 208.16; Gao v. Gonzalez, 424 F.3d 122, 128 (2d Cir. 2005) (holding that an IJ has no

discretion not to grant withholding of removal where an applicant establishes her

eligibility for asylum and demonstrates that if she were deported, that her life or

freedom would be threatened). There is no need for this Court to read the statute

in such a way as to replace the congressionally‐imposed time limitation with an

exercise of judicial mercy. I dissent.




                                         12
 1   LOHIER, Circuit Judge, concurring:

 2         In response to the Court’s careful textual analysis of § 1158(a)(2)(D), my

 3   colleague in dissent asks, “Why would Congress do that?” Dissent Op. at 12.

 4   We could just as easily ask, why not? No rule of interpretation makes

 5   congressional mercy an oxymoron. Nor is there a canon that permits us to

 6   ignore the plain language of an immigration statute like § 1158(a)(2)(D) just

 7   because those words happen to favor noncitizens.


 8         The Government and the dissent suggest that relying on the usual or literal

 9   meaning of the text of § 1158(a)(2)(D) leads to a result at odds with the “obvious

10   purpose” of Congress. Dissent Op. at 9, 11. They in effect resort to the canon of

11   absurdity, without using the word. Yet we reserve that rarest of canons for the

12   truly absurd, that is, “where the result of applying the plain language would be,

13   in a genuine sense, absurd, i.e., where it is quite impossible that Congress could

14   have intended the result and where the alleged absurdity is so clear as to be

15   obvious to most anyone.” Catskill Mountains Chapter of Trout Unlimited, Inc. v.

16   EPA, 846 F.3d 492, 517 (2d Cir. 2017) (quotation marks omitted). As the Court

17   explains, the result in this case is not even close to “absurd.” It gives petitioners

18   who are already eligible to be protected from removal on one claim an
 1   opportunity to have another claim heard. In fact, there is no case I can think of

 2   where applying the Court’s interpretation of § 1158(a)(2)(D) would allow a

 3   petitioner who is substantively ineligible for asylum to remain in this country.

 4   This case, where Yang can remain in the United States on her credible claim of a

 5   forced abortion in China, illustrates the point.


 6         The dissent offers yet another reason to avoid the plain language of

 7   § 1158(a)(2)(D), divining ambiguity where there is none to justify its turn to

 8   legislative history. After acknowledging that the Court’s interpretation of the

 9   text is plausible, Dissent Op. at 1, the dissent asserts that Congress “has given

10   [the word ‘application’] a broad, ordinary meaning: an application is a ‘request,’”

11   Dissent Op. at 2. Defining “application” to mean “request,” the dissent contends,

12   supports an alternative plausible interpretation. Namely, substituting the term

13   “request” for the term “application” in § 1158(a)(2)(D) “makes § 1158(a)(2)(D)

14   claim‐specific.” Dissent Op. at 4.


15         But the idea that Congress intended “application” to mean “request” in

16   § 1158 rests on an interpretive flaw, ignores the actual statutory use of both

17   terms, and upends our long‐held view that “[a]s a general matter, the use of

18   different words within the same statutory context strongly suggests that different

                                               2
 1   meanings were intended.” United States v. Maria, 186 F.3d 65, 71 (2d Cir. 1999).

 2   Section 1158(a)(2)(D) appears in Chapter 12 of the INA. Nothing in that chapter

 3   supports the conclusion that Congress meant to define the word “application” to

 4   mean “request.” To the contrary, the relevant sections of Chapter 12 ascribe

 5   decidedly different meanings, not the same meaning, to the two words. Start

 6   with the fact that the same sections of Chapter 12 often use the terms

 7   “application” and “request” together. This alone signals that Congress did not

 8   attach the same meaning to both words. See Maria, 186 F.3d at 71. It is true that

 9   one section in Chapter 12 appears on the surface to use “request” and

10   “application” interchangeably. Compare § 1188(a)(2), with § 1188(e)(2). But that

11   provision involves issues that are far afield from Yang’s case. By contrast, all of

12   the other, relevant sections of Chapter 12 that contain both terms employ them

13   differently. In these sections, “application” refers to a formal submission by the

14   noncitizen to the government for a substantive statutory benefit, such as asylum

15   or naturalization, while “request” refers to a procedural right, such as a hearing,

16   provided by either the government or a court. See, e.g., § 1229c (referring to a

17   noncitizen’s application for voluntary departure and a noncitizen’s request for a

18   court order of voluntary departure); § 1446 (referring to a noncitizen’s



                                              3
 1   application for naturalization and her right to request that her application be

 2   transferred to another district if she relocates); § 1447 (referring to a noncitizen’s

 3   application for naturalization and her right to request a hearing if it is denied).

 4   An “application” may subsume a request (or multiple requests); but the terms

 5   are not equivalent. Cf. § 1182(n)(1), (2) (referring to employer‐filed application to

 6   the Secretary of Labor).


 7         Of course, the Court’s interpretation of § 1158(a)(2)(D) would persevere

 8   even if one were to read “application” and “request” to mean the same thing. I

 9   agree entirely with the Court, therefore, that rewriting § 1158(a)(2)(D) to refer to

10   a “request” rather than an “application” would not make the provision claim‐

11   specific. A “request” for a specific thing, like an “application” for a specific

12   thing, may have more than one underlying basis. If in a criminal case you

13   “request” a hearing to dismiss the indictment against you, the request can cover

14   a variety of different grounds: Fifth or Sixth Amendment, say, as well as an

15   alleged statutory violation, and so on. The Court correctly points out that, in the

16   same way, Yang may have made one “request” for asylum on multiple bases.




                                                4
1         So whether the terms “request” and “application” mean very slightly

2   different things or the same thing, that would not lead to two different plausible

3   interpretations of the clear text in this case.




                                                5
