     Case: 17-60604     Document: 00515319786       Page: 1    Date Filed: 02/24/2020




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit


                                    No. 17-60604
                                                                            FILED
                                                                     February 24, 2020
                                                                       Lyle W. Cayce
NADEEM ALI, also known as Inayal Sharif,                                    Clerk

              Petitioner,

v.

WILLIAM P. BARR, U.S. Attorney General,

              Respondent.


                      Petition for Review of an Order of the
                         Board of Immigration Appeals


Before JONES, HO, and OLDHAM, Circuit Judges.
ANDREW S. OLDHAM, Circuit Judge:
      Nadeem Ali lost his status as a legal permanent resident (“LPR”) when
he was convicted of certain drug offenses. He challenges that result by arguing
that—at the time of his drug convictions—he was both an LPR and an asylee.
The Board of Immigration Appeals (“Board” or “BIA”) disagreed. So do we.
                                          I.
      On December 7, 1991, Nadeem Ali left his home country of Pakistan and
came to the United States. He used a fake visa to enter the country. So the
Government initiated exclusion proceedings. 1


      1 Under the pre-1996 Immigration and Nationality Act (“INA”), proceedings brought
against aliens attempting to enter the country were called “exclusion proceedings,” and
proceedings brought against aliens already present in the United States were called
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                                      No. 17-60604
       Ali applied for asylum. See 8 U.S.C. § 1158(a)(1). He claimed a rival
political party—the Muslim Qaumi Movement (“MQM”)—had imprisoned him
three different times between 1982 and 1991 based on his support for the
Pakistan People’s Party (“PPP”). On December 3, 1992, an Immigration Judge
(“IJ”) granted Ali asylee status. The IJ found:
       [Ali] had satisfied his evidentiary burden of proof establishing that
       he had been persecuted and continues to have a well-founded fear
       of persecution upon return to Pakistan on account of political
       opinion and within the contemplation of the I&N Act. Additionally,
       the court found the applicant to be deserving of political asylum as
       a matter of discretion.
That barred the Attorney General from removing Ali to Pakistan as long as he
remained an asylee. See 8 U.S.C. § 1158(c)(1); 8 C.F.R. § 208.22.
       Thereafter, Ali applied to become an LPR. See 8 U.S.C. § 1159(b). The
Government granted Ali’s application in June of 1993. That legalized his
permanent residence.
       It did not legalize Ali’s other behavior. In 1998, Ali pleaded no contest to
delivering drug paraphernalia. See TEX. HEALTH & SAFETY CODE § 481.125.
And in 2013, Ali pleaded guilty to possessing cocaine. See Id. §§ 481.102,



“deportation proceedings.” In 1996, Congress passed the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009 (1996)
(codified as amended in scattered sections of 8 U.S.C.). After IIRIRA, both kinds of
proceedings are simply called “removal proceedings.” See IIRIRA § 309(d)(2) (“[A]ny reference
in law to an order of removal shall be deemed to include a reference to an order of exclusion
and deportation or an order of deportation.”); see also Cardoso v. Reno, 216 F.3d 512, 515 n.3
(5th Cir. 2000) (discussing the change in nomenclature); Requena-Rodriguez v. Pasquarell,
190 F.3d 299, 308 (5th Cir. 1999) (similar). Ali’s immigration status changed before and after
IIRIRA, so we use the terms in effect at the time of the relevant change.
        At the time of Ali’s exclusion proceedings, an alien could be paroled into the United
States pending exclusion proceedings. See, e.g., Patel v. McElroy, 143 F.3d 56, 57–59 (2d Cir.
1998). That appears to be what happened between Ali’s arrival in the United States in
December of 1991 and his exclusion proceedings in December of 1992. Because an alien
subject to exclusion could be paroled into the United States, the pre-IIRIRA distinction
between exclusion and deportation “had more to do with an alien’s legal status than with his
location.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 175 (1993).
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                                  No. 17-60604
481.115. The INA authorizes the Government to remove an LPR convicted of
an offense “relating to a controlled substance.” 8 U.S.C. § 1227(a)(2)(B)(i).
Cocaine is a controlled substance. See 21 U.S.C. §§ 802(6), 812(c). So the
Government initiated removal proceedings. See supra note 1.
      Ali argued the Government had no power to remove him without first
terminating his asylee status. See 8 U.S.C. § 1158(c)(2). An IJ disagreed. The
IJ concluded Ali ceased being an asylee the moment he became an LPR. As a
result, Ali needed to apply for asylum again if he wanted to invoke that status
to avoid removal. So Ali did.
      But this time, an IJ denied Ali’s asylum application. And the BIA
affirmed. It concluded Ali’s status as an LPR ended his status as an asylee. It
further found the IJ could properly reassess and reject Ali’s credibility and
claims of persecution, notwithstanding the 1992 decision granting him asylum.
And the Board concluded Ali was not entitled to asylum (or other relief ) on the
merits.
      In 2015, Ali petitioned this Court for review of the BIA’s decision. Ali
argued that his successful and voluntary adjustment to LPR status did not
terminate his asylee status. See Ali v. Lynch (Ali I), 814 F.3d 306, 309 (5th Cir.
2016). The Ali I panel said “the BIA is entitled to Chevron deference when it
interprets a statutory provision of the INA and gives the statute ‘concrete
meaning through a process of case-by-case adjudication.’ ’’ Ibid. (quoting INS
v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999), and citing Chevron, U.S.A., Inc.
v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). The panel nevertheless
determined that the BIA had “not yet exercised its Chevron discretion to
interpret the statute . . . .” Id. at 311; see also id. at 309 (“[W]e remand for the
BIA to exercise its Chevron discretion in the first instance.”); id. at 312 (“[W]e
conclude that the BIA did not exercise its Chevron discretion because it did not
fully consider the statutory question . . . .”); id. at 314 (“[W]e remand for the
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                                  No. 17-60604
BIA to exercise its Chevron discretion . . . .”); id. at 315 (The BIA “did not
exercise its Chevron discretion.”). So Ali I vacated the BIA’s decision and
remanded for a fuller explanation of the Board’s interpretation of the statute.
Id. at 314–15.
      On remand, the BIA stood by its conclusion that Ali lost his asylee status
upon becoming an LPR. But this time, the Board explained its reasons at
length and in a precedential opinion. See Matter of N-A-I-, 27 I. & N. Dec. 72
(BIA 2017). In the Board’s view, the statute admits only one interpretation:
The BIA concluded the statutory text, regulations, caselaw, and legislative
history all supported its view that a voluntary adjustment from asylee status
to LPR status terminates the former in exchange for the latter. Then the BIA
carefully considered Ali’s contrary position and found it foreclosed by the INA’s
text, regulations, and caselaw. Once again, Ali petitioned for review.
                                        II.
      The first question is whether an alien loses his asylee status when he
voluntarily and successfully adjusts to LPR status. He does.
                                        A.
      We start, as the parties do, with Ali I. In that decision, our Court held
the BIA had “not yet exercised its Chevron discretion . . . .” Ali I, 814 F.3d at
311; see also id. at 309, 312, 314, 315. In the first panel’s view, the BIA had not
sufficiently grappled with the text of § 1158(c) (governing the termination of
asylum) or § 1159(b) (governing adjustment to LPR status). See id. at 312–13.
Ali I also faulted the BIA for not grappling with statutory context or
administrative precedents under the INA. See id. at 313–14. And our Court
was troubled that the Board had not yet consulted legislative history. See id.
at 314. Because the BIA had not completed these steps, the Ali I panel said it
could only “guess at the theory underlying the agency’s action.” Id. at 315 n.10
(quotation omitted). And “a court [cannot] be expected to chisel that which
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must be precise from what the agency has left vague and indecisive.” Ibid.
(quotation omitted).
      Administrative-law wonks call that a “Chevron Step Zero” decision. See,
e.g., Fox v. Clinton, 684 F.3d 67, 83 (D.C. Cir. 2012) (Williams, J., concurring);
Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 GEO. L.J.
833, 836 (2001). Chevron Step Zero is “the initial inquiry into whether the
Chevron framework applies at all.” Cass R. Sunstein, Chevron Step Zero, 92
VA. L. REV. 187, 191 (2006); see, e.g., United States v. Mead Corp., 533 U.S. 218,
226–27 (2001). But Chevron Step Zero cannot be completed where the agency
has not yet offered its interpretation of the statute. See Fox, 684 F.3d at 83
(Williams, J., concurring). In that circumstance, “a remand is essential.” Ibid.
      That’s precisely what Ali I did. The panel noted that the Board had acted
on Ali’s appeal without the benefit of “any earlier guidance or inquiry from this
court.” Ali I, 814 F.3d at 315 n.10. So the panel provided both. Id. at 310–15.
But Ali I repeatedly emphasized that—rather than offer its own interpretation
of the INA—it would “remand for the BIA to interpret the relevant INA
provisions in the first instance.” Id. at 308; see also id. at 309, 315.
      Ali argues the first panel also found that § 1158(c) and § 1159(b) are
ambiguous. But the ambiguity question—“whether Congress has directly
spoken to the precise question at issue”—is Chevron Step One. Chevron, 467
U.S. at 842. Of course, Step One cannot be performed before Step Zero. See
Mead, 533 U.S. at 226–27. And we do not share Ali’s presumption that the
prior panel performed the Chevron steps out of order. Plus, “Chevron’s premise
is that it is for agencies, not courts, to fill statutory gaps.” Texas v. Alabama-
Coushatta Tribe of Texas, 918 F.3d 440, 447 (5th Cir. 2019) (quotation omitted).
So it would not make sense for a court to opine on the meaning of a statute
while repeatedly demanding the agency do it “in the first instance.” Ali I, 814
F.3d at 308; see also id. at 309, 315. Language that might be read to the
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                                       No. 17-60604
contrary in Ali I is best understood as “guidance or inquiry from this court,” id.
at 315 n.10, provided to help the agency as it exercised its interpretive
authority “in the first instance,” id. at 315. To read Ali I otherwise would mean
the prior panel found the statute ambiguous (Step One) and blessed the BIA’s
interpretation as one of “the reasonable interpretations” (Step Two)—but then
didn’t defer to the BIA’s reasonable interpretation of an ambiguous part of the
INA. Cf. id. at 311. That wouldn’t be Chevron at all. See Mead, 533 U.S. at 229
(explaining that under Chevron, a court is “obliged to accept the agency’s
position if Congress has not previously spoken to the point at issue and the
agency’s interpretation is reasonable”). Ali I is best understood as a Step Zero
decision that remanded so the Board could interpret the statute in the first
instance. 2
                                              B.
       On remand from Ali I, the BIA offered a thoughtful and thorough
analysis of the statute. And it adopted its decision in a lengthy and
precedential opinion. See Matter of N-A-I-, 27 I. & N. Dec. 72 (BIA 2017). In it,
the Board explained why an asylee loses that status when he voluntarily
adjusts to LPR status. We’re persuaded by the BIA’s explanation.
       The key statutory provision at issue here says the Attorney General
“may adjust” an asylee “to the status of an alien lawfully admitted for
permanent residence” if the asylee meets certain requirements. 8 U.S.C.
§ 1159(b). The word “to” indicates the alien’s status is altered in a more




       2 Of course, even if Ali I intended to find the INA provisions ambiguous, Supreme
Court precedent still would leave the Board free to find those provisions unambiguously
support its position. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 983 (2005) (“[T]he agency’s decision to construe that statute differently from a court does
not say that the court’s holding was legally wrong. Instead, the agency may, consistent with
the court’s holding, choose a different construction, since the agency remains the
authoritative interpreter (within the limits of reason) of such statutes.”).
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fundamental sense—the alien goes from one status to another. See, e.g.,
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006) (discussing an unlawful
reentrant’s “application to adjust his status to that of lawful permanent
resident” (emphasis added)). The word “to” also denotes the arrival at a new
terminus. See To, WEBSTER’S NEW INTERNATIONAL DICTIONARY 2656 (2d ed.
1934) (“Primarily to expresses the relation of direction of approach and arrival
making its governed word denote the terminus.”); To, OXFORD ENGLISH
DICTIONARY (2d ed. 1989) (def. 11) (“Indicating a state or condition resulting
from some process: So as to become.”). On the plain text, then, the BIA was
correct to conclude a new LPR discards his old asylee status.
      Moreover, the BIA’s interpretation coheres with the broader structure
and context of the INA. “Statutory language cannot be construed in a vacuum.
It is a fundamental canon of statutory construction that the words of a statute
must be read in their context and with a view to their place in the overall
statutory scheme.” Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016) (quotation
omitted). When we read Congress’s statutes, “it is our role to make sense rather
than nonsense out of the corpus juris.” W. Va. Univ. Hosps., Inc. v. Casey, 499
U.S. 83, 101 (1991). Here, it makes sense to provide different benefits (and
burdens) for different statuses. On the BIA’s reading, an asylee gets something
an LPR does not—a right to a pre-removal termination hearing. But an LPR
can get several things an asylee does not. LPR status permits an alien to apply
for the full benefits of citizenship. 8 U.S.C. § 1427(a). It permits him to seek—
on a priority basis—immigration visas on behalf of family members. Id.
§ 1153(a)(2). It generally allows him to travel freely outside the United States
without getting preapproval from the Attorney General. Compare id.
§ 1101(a)(13)(C), with id. § 1158(c)(1)(C). And in certain circumstances, LPR
status permits him to continue living in the United States even if conditions in
his home country improve. Compare id. § 1101(a)(20), with id. §§ 1101(a)(42),
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1158(c)(2)(A). The distinction between the two statuses would be illusory if
their benefits (and burdens) were the same. The BIA’s reading of this
particular provision of the INA fits within a sensible construction of the larger
statutory scheme.
      The only other circuit to address this question also agreed with the BIA’s
interpretation. In Mahmood v. Sessions, 849 F.3d 187 (4th Cir. 2017), the
Fourth Circuit concluded the statute’s text clearly supported the BIA’s reading:
“A provision that addresses two statuses and provides for the adjustment from
one ‘to’ the other appears clearly to indicate a change to and not an accretion
of the second status.” Id. at 191. As explained below, none of Ali’s
counterarguments convince us to create a circuit split. See Gahagan v. USCIS,
911 F.3d 298, 304 (5th Cir. 2018) (observing that a petitioner “offer[ed] no
argument that would justify creating a circuit split on this issue”).
                                       C.
      Ali’s principal argument is that the BIA changed its interpretation of the
INA without offering a “reasoned explanation” for its decision. Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016). But the premise
of this argument is not that the BIA changed its position. Rather, Ali says the
BIA changed a different agency’s position. Specifically, Ali says that
Department of Homeland Security (“DHS”) regulations and guidance suggest
an alien may hold both LPR and asylee statuses simultaneously. See 8 C.F.R.
§ 208.14(c), (g); U.S. CITIZENSHIP & IMMIGRATION SERVICES, Affirmative
Asylum Procedures Manual 84 (2013); U.S. CITIZENSHIP & IMMIGRATION
SERVICES, Fact Sheet: Traveling Outside the United States as an Asylum
Applicant, an Asylee, or a Lawful Permanent Resident Who Obtained Such
Status Based on Asylum Status (2006). Because DHS takes this view, Ali
contends the BIA must explain its “change” in policy.


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                                 No. 17-60604
      But the BIA is not DHS. The BIA is part of the Executive Office for
Immigration Review, which exercises authority delegated from the Attorney
General. See 8 U.S.C. § 1101(b)(4); 8 C.F.R. §§ 1003.0(a), 1003.10(a). DHS is a
standalone agency led by a different principal officer. See 6 U.S.C. §§ 101(5),
101(16), 111(a), 112. And the rule requiring an agency to give a “reasoned
explanation” for a change in policy applies only where an agency changes its
own policy. See, e.g., Encino Motorcars, 136 S. Ct. at 2122–23 (DOL changing
DOL policy); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 506–10 (2009)
(FCC changing FCC policy); Brand X, 545 U.S. at 1000–01 (FCC changing FCC
policy); Smiley v. Citibank (South Dakota) N.A., 517 U.S. 735, 742–43 (1996)
(OCC allegedly changing OCC policy). In addressing the effect of another
agency’s potentially inconsistent position on Chevron deference, the Supreme
Court reasoned “even if the position taken by the Department of Energy in
[another case] was inconsistent with the [Commerce Department’s] position
here, it would not speak to the deference owed the Commerce Department
under Chevron.” See United States v. Eurodif S. A., 555 U.S. 305, 316 n.7
(2009). The same rationale applies here: the BIA is not its brother’s keeper, so
it has no obligation to explain “departures” from stances taken by a different
agency.
      Moreover, to the extent one agency is its brother’s keeper, Ali has the
fraternal relationship backwards. The Executive Branch’s regulations say the
BIA is in charge:
      Except as Board decisions may be modified or overruled by the
      Board or the Attorney General, decisions of the Board, and
      decisions of the Attorney General, shall be binding on all officers
      and employees of the Department of Homeland Security or
      immigration judges in the administration of the immigration laws
      of the United States. . . . Selected decisions . . . shall serve as
      precedents in all proceedings involving the same issue or issues.


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8 C.F.R. § 1003.1(g) (2018). That would make it particularly inappropriate to
require the BIA to apologize for its “departure” from a position taken by DHS. 3
       Ali also argues a neighboring statutory provision implies adjustment to
LPR status cannot strip asylee status. Section 1158(c)(2) empowers the Board
to terminate asylee status under five circumstances. Ali says those five bases
for terminating asylum are exhaustive—and adjustment to LPR status is not
listed among them. But as the BIA explained in its decision, the Board did not
terminate Ali’s asylee status. Rather, Ali did it by voluntarily adjusting to LPR
status. Because the Board never exercised its powers under § 1158(c)(2), that
provision provides no help to Ali.
       Next, Ali argues the BIA misread the legislative history behind § 1158
and § 1159. As an initial matter, an agency has no general obligation to cull
legislative history for the meaning of a statute. See Azar v. Allina Health
Servs., 139 S. Ct. 1804, 1814 (2019) (observing that “legislative history is not
the law”) (quotation omitted); cf. Frank H. Easterbrook, Text, History, and
Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL’Y 61, 67 (1994)
(“[S]tatutory text and structure, as opposed to legislative history and intent
(actual or imputed), supply the proper foundation for meaning.”). Moreover,
the use of legislative history by agencies in the interpretation of statutes
creates at least one unique danger, since agencies often play “some role in the


       3 Because the BIA and DHS both exercise executive power that ultimately flows from
the President, see U.S. CONST. art. II, § 1, the President is empowered to resolve any
disagreement between the two. And ever since the Judiciary Act of 1789, the Attorney
General has had power to render opinions to settle intra-executive-branch questions and
disputes. See Act of Sept. 24, 1789, 1 Stat. 73, 93, § 35. Today that authority is codified at 28
U.S.C. §§ 511–513 and exercised by the Office of Legal Counsel. That reinforces our view that
any difference between the BIA and DHS is best settled elsewhere. Cf. Dir., Office of Workers’
Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S.
122, 129 (1995) (explaining it “would be most inappropriate” to “put the federal courts into
the regular business of deciding intrabranch and intraagency policy disputes”); Letter from
Chief Justice John Jay and the Associate Justices to President George Washington (Aug. 8,
1793), in 3 CORRESPONDENCE & PUBLIC PAPERS OF JOHN JAY 488–89 (Johnston ed. 1891).
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creation of legislative history.” Christopher J. Walker, Inside Agency Statutory
Interpretation, 67 STAN. L. REV. 999, 1038 (2015). Judges citing legislative
history at least have the task of “looking over a crowd and picking out your
friends.” In re DeBerry, 945 F.3d 943, 950 (5th Cir. 2019) (quotation omitted).
But when agencies draft legislative history, they make the crowd. That raises
even more concerns about the “incentives for agencies to self-deal while
legislating in the shadows.” Christopher J. Walker, Legislating in the
Shadows, 165 U. PA. L. REV. 1377, 1431 (2017).
      Still, the BIA in this particular case considered legislative history in
accordance with the Ali I mandate. And the Board correctly explained that the
history does nothing to affect its reading of the INA. Even on Ali’s reading of
it, the most the legislative history could show is that § 1158(c)(2) provides an
exhaustive list of the bases the Board can use to terminate an asylee’s status.
Nothing in the history undermines the Board’s view that § 1159 allows the
alien to terminate his own asylee status by voluntarily applying for and
receiving LPR status.
      Finally, Ali argues that it makes no sense to force LPRs to reapply for
asylum. As he correctly notes, an alien in that scenario will bear the burden of
demonstrating he fears persecution, often years after leaving his home
country. 8 U.S.C. § 1158(b)(1)(B). Because the passage of time makes it more
difficult to obtain and assess evidence, Ali says, it will be difficult for the alien
to establish he’s entitled to asylum. If the Government seeks to terminate
asylum because of a “fundamental change in circumstances,” it’s the
Government that bears the burden of proof. See id. § 1158(c)(2)(A). So Ali
argues the Government, not the alien, should bear that burden here.
      But, as we’ve explained, the Government’s authority to terminate
asylum under § 1158(c)(2) is simply not at issue here. It’s a category error to
equate an alien’s “voluntary surrender of his asylum status through his
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                                  No. 17-60604
adjustment under § 1159(b) with the involuntary loss of his asylum status
through the Attorney General’s termination of it under § 1158(c).” Mahmood,
849 F.3d at 192. And to the extent this is an argument about what would make
for good policy, it’s best pressed elsewhere. See SAS Inst., Inc. v. Iancu, 138 S.
Ct. 1348, 1358 (2018) (“Policy arguments are properly addressed to Congress,
not this Court.”).
                                       III.
      Upon successfully adjusting to LPR status, Ali lost asylee status.
Accordingly, to avoid removal, he needed to reapply for asylum before a second
IJ. Ali argues the first IJ’s asylum decision in 1992 should have issue-
preclusive effect on the second IJ’s asylum decision in 2014. Again, no.
                                       A.
      At the outset, it is not obvious why any of the preclusion doctrines would
apply to the decisions of an Article II immigration judge. After all, the
preclusion doctrines derive from the legal force of judgments, which courts (not
IJs) enter. See United States v. Ferreira, 54 U.S. (13 How.) 40, 47 (1851);
RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1981). That’s why it (at least)
once was true that administrative decisions did not trigger preclusion in the
same way judicial decisions do. See, e.g., Pearson v. Williams, 202 U.S. 281,
285 (1906) (Holmes, J.) (discussing decision by immigration official and noting
that “[d]ecisions of a similar type long have been recognized as decisions of the
executive department, and cannot constitute res judicata in a technical sense”);
Churchill Tabernacle v. FCC, 160 F.2d 244, 246 (D.C. Cir. 1947) (noting “the
well settled doctrine that res judicata and equitable estoppel do not ordinarily
apply to decisions of administrative tribunals”).
      The    Supreme     Court    recently    clarified,   however,   that   some
administrative determinations can enjoy issue-preclusive effect. See B & B
Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1309–10 (2015)
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(discussing decisions by the Trademark Trial and Appeal Board). Those
preclusive effects could raise Article III questions if applied to a court. See id.
at 1304–05 & n.2 (reserving the question). But we can identify no reason an
agency could not apply issue preclusion to itself. The BIA apparently has done
so. See, e.g., Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008); In re Fedorenko,
19 I. & N. Dec. 57, 61 (BIA 1984). And we have recognized that practice before.
See Amrollah v. Napolitano, 710 F.3d 568, 571 (5th Cir. 2013).
                                        B.
      Issue preclusion against the agency does not apply unless the alien can
prove, among other things, that “the identical issue” was previously litigated
and adjudicated. Ibid. (quotation omitted). Moreover, “relitigation of an issue
is not precluded unless the facts and the legal standard used to assess them
are the same in both proceedings.” Id. at 572 (quotation omitted). And “[i]ssues
of fact are not identical or the same, and therefore not preclusive, if the legal
standards governing their resolution are significantly different.” Ibid.
(quotation omitted). To trigger issue preclusion, then, Ali bears the burden of
showing the facts and law used to assess the issue were the same in both
proceedings.
      To carry his burden, Ali points to the 1992 IJ’s decision. In a single-page
“Memorandum of Oral Decision and Order,” the decision says in relevant part:
      [Ali’s] application along with supporting documentation has been
      filed with the court, and hearing on the merits of the relief request
      completed on December 3, 1992. At the conclusion of the hearing,
      in the presence of counsel for both parties, and after review and
      consideration of the testimony and evidence presented, it was the
      finding of this court that the applicant had satisfied his
      evidentiary burden of proof establishing that he had been
      persecuted and continues to have a well-founded fear of
      persecution upon return to Pakistan on account of political opinion
      and within the contemplation of the I&N Act. Additionally, the


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       court found the applicant to be deserving of political asylum as a
       matter of discretion.
Ali says this paragraph precludes the Government from relitigating the issue
of past persecution.
       It does not because the law has changed. The 1992 IJ found Ali “satisfied
his evidentiary burden of proof that he had been persecuted” under then-
existing law. Subsequently, Congress enacted the REAL ID Act and changed
how applicants satisfy the burden of proof for past persecution. See Pub. L. No.
109-13, § 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C.
§ 1158(b)(1)(B)). 4 We have previously recognized that these are “new
standards” that give IJs “more discretion” in deciding whether an alien proved
past persecution. Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009). And it’s
well-settled that such changes undermine collateral-estoppel claims. See, e.g.,



       4  For example, the REAL ID Act added a new subsection entitled “SUSTAINING
BURDEN.” See 8 U.S.C. § 1158(b)(1)(B)(ii). It specifies:
        The testimony of the applicant may be sufficient to sustain the applicant’s burden
        without corroboration, but only if the applicant satisfies the trier of fact that the
        applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient
        to demonstrate that the applicant is a refugee. In determining whether the applicant
        has met the applicant’s burden, the trier of fact may weigh the credible testimony
        along with other evidence of record. Where the trier of fact determines that the
        applicant should provide evidence that corroborates otherwise credible testimony,
        such evidence must be provided unless the applicant does not have the evidence and
        cannot reasonably obtain the evidence.
Ibid.
        In another new subsection entitled “CREDIBILITY DETERMINATION,” the REAL ID Act
specifies:
        Considering the totality of the circumstances, and all relevant factors, a trier of fact
        may base a credibility determination on the demeanor, candor, or responsiveness of
        the applicant or witness, the inherent plausibility of the applicant’s or witness’s
        account, the consistency between the applicant’s or witness’s written and oral
        statements (whenever made and whether or not under oath, and considering the
        circumstances under which the statements were made), the internal consistency of
        each such statement, the consistency of such statements with other evidence of record
        (including the reports of the Department of State on country conditions), and any
        inaccuracies or falsehoods in such statements . . . .
Id. § 1158(b)(1)(B)(iii).
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                                  No. 17-60604
18A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 4422
(3d ed. 2018).
      That’s sufficient to reject Ali’s issue-preclusion argument. The 1992 IJ
did not say anything about Ali’s credibility. But even if the first IJ had, it would
not preclude the second IJ from determining whether Ali was credible under
the REAL ID Act’s new legal standard for “credibility determination[s].”
8 U.S.C. § 1158(b)(1)(B)(iii). Moreover, the REAL ID Act separately directs an
IJ to apply a new legal standard for determining whether and to what extent
an alien’s testimony—even if credible—can establish past persecution. See id.
§ 1158(b)(1)(B)(ii). Using the REAL ID Act’s new legal standard, the 2013 IJ
found Ali was not credible and had not established past persecution.
      Ali’s only counterargument is that the REAL ID Act did not change the
legal standard that this Court applies to review IJs’ credibility findings. But
the change in law that destroys Ali’s issue-preclusion argument is the standard
IJs apply to determine whether claims of past persecution are supported by
credible testimony. And Congress changed that standard with the REAL ID
Act. See Wang, 569 F.3d at 537; supra note 4.
      Applying the REAL ID Act’s new, higher legal standard, the second IJ
found that Ali was not credible. In his first asylum application, Ali’s personal
statement said his longest detention lasted six months. Elsewhere in the same
application, he said it lasted sixteen months. For whatever reason, the first
IJ’s decision said nothing about this inconsistency or about Ali’s credibility
more generally. Obviously, the first IJ’s failure to say anything does not
preclude the second IJ from saying something—especially given the second IJ’s
new legal obligations under the REAL ID Act. And when the second IJ asked
Ali about the inconsistency, Ali could not explain it. He just said it had been a
long time and implied he couldn’t remember the details. Nor could he explain
why he testified to being imprisoned only twice, when his application listed
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                                        No. 17-60604
three such incidents. Then he told the BIA “that he was advised to lie by the
person who prepared his new asylum application.” All of this justified the
Government’s decision to find Ali not credible. 5
                                        *      *       *
       Ali’s voluntary and successful adjustment to LPR status ended his status
as an asylee. And the first IJ’s decision lacked preclusive effect because the
REAL ID Act changed the law. The petition for review is DENIED.




       5  In all events, it’s not obvious why it matters whether the Government is issue-
precluded from relitigating past persecution. True, if an alien establishes past persecution,
he presumptively has a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1).
But in this case, the 2013 IJ and the Board determined that new facts also vitiated Ali’s fear
of future persecution. At his second asylum hearing, Ali testified that he returned to Pakistan
twice without incident—first in 1994 for two months and then again in 2007 for over one
month. He also stated that his political party (the PPP) is now the most powerful political
party in Pakistan. Moreover, Ali also said that since he entered the United States, he had
not been threatened by the MQM—even when he visited Pakistan. The Board relied on these
facts in affirming the 2013 IJ’s denial of asylum. And Ali never challenged the substance of
the agency’s finding that he failed to credibly establish eligibility for relief, so he forfeited
that issue. Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)
(“Failure adequately to brief an issue on appeal constitutes [forfeiture] of that argument.”).
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