Team 1017

No. 19-19002

IN THE

Supreme Court of the United States

CAROLINA ABEL,

Petitioner,

V.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the Fourteenth Circuit Court of Appeals

BRIEF FOR THE RESPONDENT

i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

TABLE OF AUTHORITIES ......................................................................................................... iii

STATEMENT OF CASE ............................................................................................................... 1

I. STATEMENT OF FACTS ..................................................................................... 1

II. PROCEDURAL HISTORY ................................................................................... 2

STATEMENT OF JURISDICTION............................................................................................... 2

STATEMENT OF ISSUES PRESENTED FOR REVIEW ........................................................... 3

SUMMARY OF ARGUMENT ...................................................................................................... 3

STANDARDS OF REVIEW .......................................................................................................... 4

ARGUMENT .................................................................................................................................. 5

I. 8 C.F.R. SECTION 208.13(c)(4) IS SUBSTANTIALLY VALID UNDER THE FRAMEWORK SET OUT IN CHEVRON .................................................... 5

A. Applying the First Prong of Chevron, Congress Has Not Previously Spoken on the Precise Issue of the New Regulation ................................... 7

i. The safe third country bar Congress enacted addresses a different issue than the new Regulation .......................................... 8

ii. Similarly, the firm resettlement bar Congress enacted addresses a different issue than the new Regulation ..................................... 11

B. Applying the Second Prong of Chevron, the New Regulation Is Based on A Permissible Construction of the Existing Statutes ........................... 12

II. PETITIONER DOES NOT HAVE A WELL-FOUNDED FEAR OF FUTURE PERSECUTION BECAUSE SHE CAN NEITHER DEMONSTRATE SUFFICIENT INDIVIDUALIZED RISK NOR GROUP PERSECUTION ........ 17

A. Petitioner Cannot Establish an Individual Risk of Persecution in Azteca to Sufficiently Demonstrate a Well-Founded Fear of Future Persecution ................................................................................................ 20

B. Petitioner Cannot Demonstrate Sufficient Evidence of Group-Based Persecution to Establish A Well-Founded Fear ........................................ 24

ii

i. Petitioner, as a member of the Stars and Comets faith, is not subjected to a pattern or practice of persecution ........................... 25

ii. Even if this Court adopted the disfavored group analysis, Petitioner still cannot establish a well-founded fear ..................... 27

CONCLUSION ............................................................................................................................. 30

iii

TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES Barr v. E. Bay Sanctuary Covenant,

140 S. Ct. 3 (2019) ........................................................................................................ 7, 15 Bob Jones Univ. v. United States,

461 U.S. 574 (1983) .................................................................................................... 14, 16 Brooks v. Dewar,

313 U.S. 354 (1941) .......................................................................................................... 14 Chevron U.S.A. Inc. v. Natural Resources Defense Council,

467 U.S. 837 (1984) ................................................................................................... passim INS v. Aguirre- Aguirre,

526 U.S. 415 (1999) ............................................................................................................ 6 INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) .................................................................................................... 18, 20 INS v. Elias-Zacarias,

502 U.S. 478 (1992) ............................................................................................................ 4 INS v. Stevic,

467 U.S. 407 (1984) .......................................................................................................... 18 Kleindenst v. Mandel,

408 U.S. 753 (1972) .......................................................................................................... 12 Massachusetts v. EPA,

549 U.S. 497 (2007) ............................................................................................................ 7 United States v. Beebe,

180 U.S. 343 (1901) .......................................................................................................... 14 United States v. Booker,

543 U.S. 220 (2005) ............................................................................................................ 4 United States v. Mead Corp.,

533 U.S. 218 (2011) ............................................................................................................ 6 United States v. Midwest Oil Co.,

236 U.S. 459 (1915) .................................................................................................... 13, 14

iv

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121 (1985) .................................................................................................... 15, 17 United States v. Rutherford,

442 U.S. 544 (1979) .......................................................................................................... 14 Young v. Cmty. Nutrition Inst.,

476 U.S. 974 (1986) .......................................................................................................... 13 Zadvydas v. Davis,

533 U.S. 678 (2001) .......................................................................................................... 12 UNITED STATES CIRCUIT COURT CASES Abankwah v. INS,

185 F.3d 18 (2d Cir. 1999)................................................................................................ 20 Abedini v. INS,

971 F.2d 188 (9th Cir. 1992) .............................................................................................. 4 Ahmed v. Gonzales,

467 F.3d 669 (7th Cir. 2006) ............................................................................................ 29 Ali v. Ashcroft,

366 F.3d 407 (6th Cir. 2004) ............................................................................................ 20 Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue,

926 F.3d 1061 (9th Cir. 2019) ............................................................................................ 7 Am. Water Works Ass’n v. EPA, 40 F.3d 1266 (D.C. Cir. 1994) ............................................................................................ 7 Andriasian v. I.N.S.,

180 F.3d 1033 (9th Cir. 1999) .......................................................................................... 11 Angoucheva v. INS,

106 F.3d 781 (7th Cir. 1997) ...................................................................................... 26, 27 Arrey v. Barr,

916 F.3d 1149 (9th Cir. 2019) .................................................................................... 11, 12 Avetova-Elisseva v. INS,

213 F.3d 1192 (9th Cir. 2000) .......................................................................................... 25

v

Boykov v. INS, 109 F.3d 413 (7th Cir. 1997) ............................................................................................ 19

Bromfield v. Mukasey,

543 F.3d 1071 (9th Cir. 2008) .......................................................................................... 25 Butterbaugh v. Dep’t of Justice,

336 F.3d 1332 (Fed. Cir. 2003)......................................................................................... 14 Campos-Hernandez v. Sessions,

889 F.3d 564 (9th Cir. 2018) .............................................................................................. 6 E. Bay Sanctuary Covenant v. Barr,

934 F.3d 1026 (9th Cir. 2019) ............................................................................................ 7 Gormley v. Ashcroft,

364 F.3d 1172 (9th Cir. 2004) .......................................................................................... 21 Hakeem v. INS,

273 F.3d 812 (9th Cir. 2001) ............................................................................................ 22 Halim v. Ashcroft,

109 Fed. Appx. 164 (9th Cir. 2004) ............................................................................ 21, 23 Knezevic v. Ashcroft,

367 F.3d 1206 (9th Cir. 2004) .......................................................................................... 25 Lie v. Ashcroft,

396 F.2d 530 (3d Cir. 2005).................................................................................. 21, 22, 23 Maharaj v. Gonzales,

450 F.3d 961 (9th Cir. 2006) .............................................................................................. 5 Marmolejo-Campos v. Holder,

558 F.3d 903 (9th Cir. 2009) .............................................................................................. 6 Martinez-Pérez v. Session,

897 F.3d 22 (1st Cir. 2018) ............................................................................................... 19 Melgar de Torres v. Reno,

191 F.3d 307 (2d Cir. 1999).................................................................................. 21, 22, 23 Mgoian v. INS,

184 F.3d 1029 (9th Cir. 1999) .................................................................................... 20, 26

vi

Micron Tech., Inc. v. United States, 243 F.3d 1301 (Fed. Cir. 2001)......................................................................................... 14

Mohammad v. United States AG,

547 F.3d 1340 (11th Cir. 2008) ........................................................................................ 29 Morgan v. Holder,

634 F.3d 53 (1st Cir. 2011) ................................................................................................. 5 Perez v. Chater,

77 F.3d 41 (2d Cir. 1996).................................................................................................... 4 Puentes Fernandez v. Keisler,

502 F.3d 337 (4th Cir. 2007) .............................................................................................. 6 S.E.R.L. v. Att’y Gen. United States,

894 F.3d 535 (3d Cir. 2018)................................................................................................ 7 Sael v. Ashcroft,

386 F.3d 922 (9th Cir. 2004) ................................................................................ 18, 19, 28 Schism v. United States,

316 F.3d 1259 (Fed. Cir. 2002)................................................................................... 13, 15 United States v. Chimurenga,

760 F.2d 400 (2d Cir. 1985).............................................................................................. 14 United States v. Orta,

760 F.2d 887 (8th Cir. 1985) ............................................................................................ 14 United States v. Portes,

786 F.2d 758 (7th Cir. 1985) ............................................................................................ 14 Velasquez-Garcia v. Holder,

760 F.3d 571 (7th Cir. 2014) .............................................................................................. 6 Wakkary v. Holder,

558 F.3d 1049 (9th Cir. 2009) .................................................................................... 25, 26 Wan Chien Kho v. Keisler,

505 F.3d 50 (1st Cir. 2007) ............................................................................................... 29 Young Hao Chen v. United States INS,

195 F.3d 198 (4th Cir. 1999) ............................................................................................ 28

vii

UNITED STATES DISTRICT COURT CASES E. Bay Sanctuary Covenant v. Barr.,

391 F. Supp. 3d 974 (2019) ................................................................................ 7, 8, 11, 15 STATUTES 8 U.S.C. § 1101 (2000) ............................................................................................................. 6, 18 8 U.S.C. § 1158 (2009) ....................................................................................................... 8, 11, 13 REGULATIONS 8 C.F.R. § 208.13 (2019) ....................................................................................................... passim TREATIES Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries,

Can.-U.S., Dec. 5, 2002, TIAS 04-1229 (entered into force Dec. 29, 2004) ...................... 9 FEDERAL REGISTER Asylum Eligibility and Procedural Modifications,

84 FR 33829-01 (July 16, 2019) (to be codified at 8 C.F.R. § 208.13(c)(4) .................... 13 CONGRESSIONAL MATERIALS Andorra Bruno, Refugee Admissions and Resettlement Policy,

CONGRESSIONAL RESEARCH SERVICE, Dec. 18, 2018, at CRS-2 ...................................... 24 H.R. 2975, 107th Cong. (2001)..................................................................................................... 17 S. 1510, 107th Cong. (2001) ......................................................................................................... 17 THOMPSON, COMMITTEE ON HOMELAND SECURITY,

H.R. REP. NO. 116-163, pt. 1, at 28 (2019) ....................................................................... 16 OTHER AUTHORITIES ABA LEGAL FACT CHECK:

EXPLORATION OF LEGALITIES OF ASYLUM AMID CLAIMS US IS “FULL” ........................... 24 Claire Felter, Amelia Cheatham, Can ‘Safe Third Country’ Agreements Resolve the Asylum Crisis?,

COUNCIL ON FOREIGN RELATIONS, (Aug. 29, 2019) ........................................................... 9

viii

U.S. Dep’t of Homeland Security, Office of Immigration Statistics,

Annual Flow Report January 2018 (2018) ........................................................................ 18 George Tzamaras and Belle Woods, SCOTUS Lifts Nationwide Injunction of “Asylum Ban 2.0,”

AMERICAN IMMIGRATION LAWYERS ASSOCIATION (Sep. 12, 2019) ................................. 16 Kristina Davis, Trump administration asks 9th Circuit to life court order limiting asylum ban,

LOS ANGELES TIMES (Jan. 9, 2020) .................................................................................. 16 Maria Sacchetti, U.S. vows to appeal ruling that blocked Trump asylum policy, which is aimed at curbing migration,

THE WASHINGTON POST (Jul. 25, 2019) ........................................................................... 16 Megan S. Knize, Article: On Being Very Afraid: Why We Need A Consistent Evidentiary Standard for Asylum Seekers,

12 APPALACHIAN J.L. 123 (2012) ..................................................................................... 28 National Immigration Forum, Asylum Fact Sheet (Jan. 10, 2019) ............................................... 24 Sarah Mervosh, Judge Reinstates Nationwide Injunction on Trump Asylum Rule,

NEW YORK TIMES, (Sep. 9, 2019) ..................................................................................... 16 Sophie H. Pirie, Note: The Need for a Codified Definition of “Persecution” in United States Refugee Law,

39 STAN. L. REV. 187 (1986) ............................................................................................ 20 U.N. General Assembly, Draft Convention relating to the Status of Refugees, ¶ 8,

U.N. Doc. A/RES/429 (Dec. 14, 1950) ............................................................................... 5

1

STATEMENT OF CASE

I. STATEMENT OF FACTS

Carolina Abel (“Petitioner”) is a member of the Stars and Comets religion, a small group

that operates primarily in North America, where local governments often consider it a cult. R. at

1. Stars and Comets has a few thousand members worldwide who frequently associate themselves

with the religion by wearing a “distinct green headband.” R. at 1, 3. The majority of Stars and

Comets members live “in the small island country of Sainte Michelle.” R. at 1.

Petitioner, though Saint Michelle native, left that country in early June 2019, for the safer

nation of Azteca, a country bordering the Southern United States. R. at 3. Although Azteca

supports Sainte Michelle’s political interests, it is far less violent towards the smaller population

of Stars and Comets members. R. at 3.

Once Petitioner arrived in Azteca, she did not register for asylum or refugee status, even

though Azteca is a party to several refugee organizations. R. at 3. Petitioner’s first destination was

the town of Rancho Pequeno where she resided with a fellow Stars and Comets member, Ms.

Gabriela Martinez. R. at 3. Petitioner continued to wear the green headband, identifying herself as

a Stars and Comets member. R. at 3. During her time in Rancho Pequeno, strangers twice robbed

Abel and police officers fined her for jaywalking. R. at 3. Additionally, random strangers graffitied

Ms. Martinez’s apartment door almost every day. R. at 3. When harassed by young children, police

officers did nothing to aid Petitioner. R. at 3.

The incidents in Azteca were minor compared to the violence perpetrated in Sainte

Michelle. R. at 2. For instance, when a prominent politician ran for office in Sainte Michelle, he

based his entire party platform on expelling all Stars and Comets believers from the country. R. at

2. While he ultimately did not win the election, violence against Stars and Comets members

2

escalated because of his campaign, culminating in almost one death of a Stars and Comets member

per week. R. at 2.

After one month in Rancho Pequeno, Petitioner travelled to the port of entry at Rancho

Nuevo, California, on July 17, 2019. R. at 3. She claimed asylum citing her past persecution and

fear of future persecution as a member of a disfavored group. R. at 3-4.

In the summer of 2019, the United States Department of Homeland Security and the

Department of Justice (“the Agencies”) issued an interim rule rejecting asylum applications from

individuals who travelled through a third country prior to arriving at the United States’ southern

border. 8 C.F.R. § 208.13(c)(4) (2019) (“new Regulation”). Therefore, the Immigration Judge

(“IJ”) denied Petitioner’s asylum application. R. at 4.

II. PROCEDURAL HISTORY

On August 1, 2019, the IJ denied Petitioner’s asylum application because (1) Petitioner did

not qualify for asylum under the new Regulation, and (2) the mistreatment Petitioner endured in

Azteca did not rise to the level of persecution. R. at 4. On September 1, 2019, the Board of

Immigration Appeals (“BIA”) affirmed the IJ’s ruling. R. at 4. Subsequently, Petitioner appealed

to this Court. R. at 4. This Court granted certiorari to determine (1) whether the new Regulation

is substantially valid, and (2) whether Petitioner has a well-founded fear of persecution.

STATEMENT OF JURISDICTION

A statement of jurisdiction has been omitted in accordance with the rules of the UC Davis

School of Law Asylum and Refugee Law National Moot Court Competition.

3

STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. 8 C.F.R. section 208.13(c)(4) seeks to limit an asylum applicant’s eligibility if she

travelled through a third country prior to arriving at the United States’ southern border. The validity

of this new Regulation is assessed using the two-prong Chevron test. This regulation is consistent

with the current statutory framework and Congress has acquiesced to its use. Is 8 C.F.R. section

208.13(c)(4) substantially valid thus barring Petitioner from asylum?

II. The current regulations offer two avenues of establishing a well-founded fear of

future persecution: (1) sufficient individual risk, or (2) a pattern or practice of persecution on the

basis of an individual’s race, religion, ethnicity, political opinion, or membership in a particular

social group. In Azteca, Petitioner endured minor threats and harassment unconnected to her

membership in the Stars and Comets faith. Has petitioner demonstrated a well-founded fear of

future persecution?

SUMMARY OF ARGUMENT 8 C.F.R. section 208.13(c)(4) is substantially valid because it passes the two-prong

Chevron test. The Chevron test determines whether a regulation is valid by first asking whether

Congress has directly spoken to the precise question at issue and then asking whether the regulation

is a permissive construction of Congress’ statutory framework. Congress has not spoken on the

precise question at issue through neither the safe resettlement bar nor the third country bar because

they are procedurally and substantively different than the safeguards in the new Regulation.

Moreover, the new Regulation is a permissible construction of the existing statutory framework

because Congress was aware of the new Regulation but has not enacted new legislation to overrule

it, in essence acquiescing to the new Regulation. Therefore, under Chevron, the new Regulation is

substantially valid and this Court should uphold it to deny Petitioner’s asylum claim.

4

At present, the regulatory framework offers two avenues of establishing a well-founded

fear of future persecution. The first is a reasonable probability that the applicant will be

individually persecuted based on specific threats or instances of violence on the basis of their

religion, or other protected category. Alternatively, the applicant can demonstrate that there is a

pattern or practice of persecuting people similarly situated to her, such that there is no need to

establish an individual risk. The two lower adjudicating courts held that Petitioner did not

demonstrate an individual risk of persecution and that there was not a pattern or practice of

persecution of Stars and Comets members in Azteca. Petitioner has only offered few instances of

violence or harassment in Azteca unconnected to her membership in the Stars and Comets faith.

Under the substantial evidence standard of review, Petitioner is unable to overcome the lower

courts’ holdings and has not demonstrated her eligibility for asylum.

STANDARDS OF REVIEW

I. Assessing the validity of a statute or regulation requires an exploration of legal

principles as its primary endeavor. Pure questions of law, such as this one, are reviewed de novo.

United States v. Booker, 543 U.S. 220, 259 (2005); Abedini v. INS, 971 F.2d 188, 190 (9th Cir.

1992). Thus, this Court should refer to the lower court to determine the facts of the case but should

rule on the evidence and matters of law without giving any deference to the lower court. Id.

II. Findings of persecution, or a well-founded fear thereof, are reviewed under the

deferential substantial evidence standard. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). A

reviewing court should uphold the findings if they are supported by reasonable and probative

evidence. Id. Substantial evidence is more than a “mere scintilla;” it must be sufficient for a

reasonable mind to accept it as enough to support a conclusion. Perez v. Chater, 77 F.3d 41, 45

(2d Cir. 1996). This Court may only reverse the decision of the lower adjudicating courts if the

5

evidence Petitioner presented not only inclined but compelled the factfinder to a different

conclusion. Morgan v. Holder, 634 F.3d 53, 57 (1st Cir. 2011).

ARGUMENT

I. 8 C.F.R. SECTION 208.13(c)(4) IS SUBSTANTIALLY VALID UNDER THE FRAMEWORK SET OUT IN CHEVRON

Asylum, as we know it, arose to mitigate the post-World War II chaos with the 1951 United

Nations Convention Relating to the Status of Refugees. U.N. General Assembly, Draft Convention

relating to the Status of Refugees, ¶ 8, U.N. Doc. A/RES/429 (Dec. 14, 1950). While granting

asylum is something the United States proudly does, there are several rules and regulations

dictating to whom the government may grant this extraordinary remedy. These rules and

regulations prevent asylum seekers from “asylum shopping;” the practice where individuals apply

for asylum in various countries in hopes of having several options from which they can choose the

best one. Maharaj v. Gonzales, 450 F.3d 961, 989 (9th Cir. 2006) (O’Scannlain, J., dissenting). As

the number of asylum applications the United States receives continues to grow, Congress and

various regulatory agencies have enacted additional limitations on an applicant’s eligibility. See

e.g., 8 C.F.R. § 208.13(c)(4).

Under the current asylum law standard, when a plaintiff alleges an agency’s regulation is

not in accordance with the law, or has exceeded the agency’s authority, courts apply the Chevron

framework to determine the regulation’s legality. Chevron U.S.A. Inc. v. Natural Resources

Defense Council, 467 U.S. 837, 842-43 (1984). This framework was first created when this Court

faced the question of whether the judiciary could step in to overrule or interpret an executive

agency’s action. Id. This Court “ha[s] long recognized that considerable weight should be accorded

to an [agency’s] construction of a statutory scheme it is entrusted to administer, and the principle

of deference [is given] to administrative interpretations.” Id. at 844. Thus, the Court created a two-

6

prong test to assess a regulation’s validity. Id. at 842-43. If the regulation passes both prongs, it is

upheld as valid. Id.

First, courts consider whether Congress has directly spoken to the precise question at issue.

Campos-Hernandez v. Sessions, 889 F.3d 564, 568 (9th Cir. 2018) (citing Chevron, 467 U.S. at

842). If Congress spoke on the precise issue through an enacted statute and Congress’ intent in

that statute is clear, any interpreting court must show deference to Congress’ intent and the new or

proposed regulation at issue is automatically invalid. Chevron, 467 U.S. at 842. If a court concludes

Congress has not spoken on the issue, or Congress’ articulated intent behind a statute is unclear, it

then turns to the second prong of the Chevron test. Id. at 843. For the second prong, “the question

. . . is whether the [administrative] agency’s answer is based on a permissible construction of the

statute.” Id.

Congress creates administrative agencies for the specific purpose of promulgating

regulations in their defined areas of expertise. See, e.g., 8 U.S.C. § 1101 et seq. (2000) (the

Immigration and Nationality Act (“INA”) grants authority to the Attorney General to regulate

immigration law). When an agency has interpreted a statute or defined a term clearly, a reviewing

court may not ignore the agency’s construal or create its own meaning because the agency, as the

creator of the regulation, is in a better position to understand its purpose. Chevron, 467 U.S. at

843. See, e.g., United States v. Mead Corp., 533 U.S. 218, 221 (2011); INS v. Aguirre- Aguirre,

526 U.S. 415, 424 (1999); Velasquez-Garcia v. Holder, 760 F.3d 571, 580 (7th Cir. 2014); Puentes

Fernandez v. Keisler, 502 F.3d 337, 340 (4th Cir. 2007) (holding the Fourth Circuit must afford

deference to the BIA’s interpretation of the term “national of the United States” in the INA);

Marmolejo-Campos v. Holder, 558 F.3d 903, 908 (9th Cir. 2009) (applying deference to the BIA’s

interpretation of the ambiguous terms in the INA); S.E.R.L. v. Att’y Gen. United States, 894 F.3d

7

535, 540 (3d Cir. 2018) (applying Chevron deference to the BIA’s interpretation of “particular

social group” with regard to refugee status).

This section of the brief will focus on applying the Chevron test to 8 C.F.R. section 208.13

(c)(4) to determine if it is substantially valid. This new Regulation was first brought to the judiciary

in the United States District Court for the Northern District of California in E. Bay Sanctuary

Covenant v. Barr. 385 F. Supp. 922 (2019), order reinstated, 391 F. Supp. 3d 974 (2019). There,

the District Court granted a nationwide preliminary injunction enjoining the Agencies from

applying the new Regulation. Id. On appeal, the Ninth Circuit narrowed the preliminary injunction

to only those states within the circuit. E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1030

(2019) (stay granted in part and denied in part). Subsequently, this Court stayed the preliminary

injunction in its entirety thereby allowing agencies to execute the new Regulation nationwide. Barr

v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019) (granting stay of preliminary injunction). This

Court now has the opportunity to again address the new Regulation’s validity, considering at how

the lower courts applied it to Petitioner’s asylum claim.

A. Applying the First Prong of Chevron, Congress Has Not Previously Spoken on the Precise Issue of the New Regulation

The first prong of the Chevron test requires a court to determine whether Congress “directly

addressed the precise question at issue.” 467 U.S. at 843. A court should conduct the first prong’s

analysis by “employing traditional tools of statutory construction.” Id. at 843 n.9. Most courts

begin by first considering the text of the statute itself. Massachusetts v. EPA, 549 U.S. 497, 528-

29 (2007); see also Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue, 926 F.3d 1061,

1075 (9th Cir. 2019). Some courts have implied that turning to additional tools to determine a clear

meaning in itself suggests the statute is ambiguous. See, e.g., Am. Water Works Ass’n v. EPA, 40

F.3d 1266, 1272 (D.C. Cir. 1994) (“Because we must examine the effective date provision in its

8

statutory context in order to determine which meaning the Congress intended, we cannot say that

either the NRDC’s or the EPA’s reading is the uniquely ‘plain meaning’ of the provision”).

Congress has previously enacted two limits on asylum eligibility: (1) the safe third country

bar, and (2) the firm resettlement bar. While Petitioner may argue that these statutes precisely

speak to the new Regulation, these bars are procedurally and substantially different from the new

Regulation.

i. The safe third country bar Congress enacted addresses a different issue than the new Regulation

“The safe third country bar requires a country’s formal agreement to accept refugees and

process their claims pursuant to safeguards negotiated with the United States.” E. Bay, 391 F.

Supp. 3d 974. See also 8 U.S.C. § 1158(a)(2)(A) (2009). The Unites States ensures these

safeguards via a bilateral or multilateral agreement between it and one or more countries. 8 U.S.C.

§ 1158(a)(2)(A). First, our government must determine that the third country would not threaten

the alien’s life or freedom, based on a protected characteristic, if the government removed the

applicant to that third country. E. Bay, 391 F. Supp. 3d 974. Second, our government must

determine whether “the alien would have access to a full and fair procedure for determining a

claim to asylum or equivalent temporary protection there.” Id.

As the Fourteenth Circuit discussed, “[t]he plain statutory text of the safe third country bar

speaks to removing asylum seekers pursuant to a treaty between the United States and the country

the asylum seeker is to be removed to.” R. at 6. “Essentially, the safe third country bar enables the

Attorney General to use treaties to remove asylum seekers.” R. at 6.

As of now, the United States has entered into a safe third country treaty with only one other

country: Canada. Agreement for Cooperation in the Examination of Refugee Status Claims from

Nationals of Third Countries, Can.-U.S., Dec. 5, 2002, TIAS 04-1229 (entered into force Dec. 29,

9

2004). The current administration is pressing for additional bilateral treaties with several South

and Central American countries including Panama, Guatemala, Mexico, Brazil, Honduras, and El

Salvador. Claire Felter, Amelia Cheatham, Can ‘Safe Third Country’ Agreements Resolve the

Asylum Crisis?, COUNCIL ON FOREIGN RELATIONS, (Aug. 29, 2019), https://www.cfr.org/in-

brief/can-safe-third-country-agreements-resolve-asylum-crisis. However, those governments have

been exceptionally reluctant to commit to the United States’ protective measures and are unwilling

to hinder their citizens’ ability to seek asylum in the United States. Id. Thus, at present, the third

country bar is only applicable to asylum seekers entering the United States from Canada.

The new Regulation is distinguishable from the third country bar. As the Fourteenth Circuit

noted, “8 C.F.R. [section] 208.13(c)(4), on the other hand, does not deal with treaties between the

United States and other countries.” R. at 6. Moreover, unlike the safe third country bar that deals

only with asylum applicants entering from Canada, the new Regulation is applies to asylum seekers

from any country attempting to enter the United States from the southern border. 8 C.F.R. §

208.13(c)(4).

Similar to the safe third country agreement, 8 C.F.R. section 208.13(c)(4)(iii) “addresses

an exception to the rule when the third country that the asylum seeker travelled through on her

way to the southern border was not a party ‘to the 1951 United Nations Convention relating to the

Status of Refugees, the 1967 Protocol, or the United Nations Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment.’” R. at 6. “The goal of this subdivision is

to protect the removee from being removed to a country that does not respect refugees or

international bans on torture.” R. at 6. “This exception requires the removal to be to a country that

the Attorney General can presume will not mistreat the removee.” R. at 6.

10

While the main focus of the safe third country bar is removing applicants to a country with

which the United States has a treaty, the new Regulation aims to prevent “asylum shopping.” The

new Regulation prevents applicants from applying for asylum in the United States if they have

chosen to leave their home country and travelled through a third country before arriving at the

United States’ southern border. 8 C.F.R. § 208.13(c)(4). The reason for this is because when an

individual flees to a third country, implied in her choice is that the country to which she is fleeing

is safer than her home country. Petitioner may argue that there is a variety of reasons an individual

may pass through a dangerous third country before arriving at the United States, however, that

argument is unfounded because she willingly chose to reside in Azteca—the purportedly

dangerous country—for one month before seeking asylum in the United States. R. at 3. Petitioner

had every opportunity to seek asylum or apply for refugee status in Azteca, but she chose to

“asylum shop” when she moved on to the United States once she found the conditions in Azteca

to be unsatisfying. R. at 3. Thus, Petitioner does not have a valid asylum claim under the safe third

country bar because she did not enter from Canada, nor does she have a valid claim pursuant to

the new Regulation because she entered from the United States’ southern border after travelling

through Azteca.

The only real overlap between the safe third country bar and the new Regulation is that

they both prevent removing asylum applicants to dangerous countries. However, this overlap

should not be determinative in this Court’s analysis under the Chevron test’s first prong because

the two sections protect removees in different manners. Merely having the same overall goal does

not make the two sufficiently similar. Instead, the procedural and substantive differences in the

two sections make them noticeably different, allowing the new Regulation to withstand an analysis

under the Chevron test’s first prong.

11

ii. Similarly, the firm resettlement bar Congress enacted addresses a different issue than the new Regulation

Another method of limiting asylum eligibility is through the firm resettlement bar. 8 U.S.C.

§ 1158(b)(2)(a)(vi) (2009). Under the firm resettlement bar, an alien is ineligible for asylum if she

“was firmly resettled in another country prior to arriving in the United States.” Id. Using the current

statutory scheme, the government must apply a two-step process to determine whether the firm

resettlement bar applies. Arrey v. Barr, 916 F.3d 1149, 1159 (9th Cir. 2019). First, the government

must “make individualized determinations that an asylum applicant received an offer of some type

of permanent resettlement in [another] country.” E. Bay, 391 F. Supp. 3d 974. Second, “the burden

shifts to the applicant to show the nature of [her] stay and ties was too tenuous, or the conditions

of [her] residence too restricted, for [her] to be firmly resettled.” Arrey, 916 F.3d at 1159.

Moreover, because firmly resettled aliens are no longer subject to persecution, an applicant can

“rebut the finding of firm resettlement” with additional evidence of persecution in that third

country. Id. at 1159-60.

The Ninth Circuit has recognized that the purpose of the two step process to find firm

resettlement “is to ensure that if this country denies a refugee asylum, the refugee will not be forced

to return to a land where [s]he would once again become a victim of harm or persecution.”

Andriasian v. I.N.S., 180 F.3d 1033, 1046-47 (9th Cir. 1999).

The firm resettlement bar is distinguishable than the limits outlined in the new Regulation.

The first step in a firm resettlement analysis considers whether the applicant has already received

an offer of permanent resettlement in a different country. E. Bay, 391 F. Supp. 3d 974. The new

Regulation, on the other hand, merely disqualifies applicants who could have applied for asylum

in a third country prior to arriving at the United States’ southern border. 8 C.F.R. § 208.13(c)(4).

12

Moreover, the firm resettlement bar protects asylum applicants from a potentially

dangerous third country in a different manner than the new Regulation. The second step in a firm

resettlement analysis allows an applicant to rebut a finding of firm resettlement by providing

evidence of persecution in the third country. Arrey, 916 F.3d at 1159-60. In contrast, the new

Regulation affirmatively protects the applicant by requiring that the third country is a party “to the

1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating to

the Status of Refugees, or the United Nations Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment.” 8 C.F.R. § 208.13(c)(4)(iii).

While the overall goal of both the firm resettlement bar and the safe third country bar is to

ensure a third country is safe option for an applicant prior to removing them there, this similarity

is too tenuous to find that Congress has already spoken on the precise question at issue. The

procedural and substantive differences between the two make them markedly different, allowing

the new Regulation to withstand an analysis under the Chevron test’s first prong.

In conclusion, the new Regulation survives the Chevron test’s first prong because both the

safe third country bar and the firm resettlement bar are substantially different from the guidelines

in the new Regulation.

B. Applying the Second Prong of Chevron, the New Regulation Is Based on A Permissible Construction of the Existing Statutes

The next step in this Court’s analysis is to address whether the new Regulation aligns with

the aforementioned statutes. Chevron, 467 U.S. at 843. A court’s analysis proceeds to Chevron’s

second prong only if a statute is “silent or ambiguous with respect to the specific issue.” Id.

“Congress has plenary power to create immigration law, [therefore] the Judicial Branch must defer

to [the] Executive and Legislative Branch[’s] decision making in that area.” Zadvydas v. Davis,

533 U.S. 678, 695 (2001); Kleindenst v. Mandel, 408 U.S. 753, 766 (1972). Congress can delegate

13

authority to an agency to fill in the gaps of a statute, and if it does so, courts will give “controlling

weight” to reasonable agency interpretations of a statutory ambiguity. Chevron, 467 U.S. at 865-

66. As such, courts cannot substitute their own construal for an agency’s reasonable construction.

Id. at 844; Young v. Cmty. Nutrition Inst., 476 U.S. 974, 981 (1986).

The Agencies enacted the new Regulation pursuant its authority under 8 U.S.C. section

1158(b)(2)(C) (2009). Asylum Eligibility and Procedural Modifications, 84 FR 33829-01 (July 16,

2019) (to be codified at 8 C.F.R. § 208.13(c)(4)). Through its congressional grant of authority, the

Attorney General has broad power to “establish additional limitations and conditions, consistent

with this section, under which an alien shall be ineligible for asylum.” 8 U.S.C. § 1158(b)(2)(C)

(emphasis added). Nothing in 8 U.S.C. section 1158 explicitly prohibits enacting a regulation like

the new Regulation. Moreover, the Fourteenth Circuit’s decision outlines how the new Regulation

does not contradict any sections in 8 U.S.C. section 1158. R. 7-9. In fact, the new Regulation is

particularly consistent with the provisions of both the safe third country bar and the firm

resettlement bar in that all three sections have the same overall goal of protecting asylum

applicants. Thus, the new Regulation is a permissible one because the Agencies had authority

promulgate it and it is consistent with the existing statutory framework.

Another way to determine whether a regulation is based on a permissible construction of a

statute is to look at how Congress reacts to the regulation. “[T]he standard to establish

[C]ongressional ratification of unauthorized agency action is not easy to meet.” Schism v. United

States, 316 F.3d 1259, 1293 (Fed. Cir. 2002) (en banc). The “doctrine of acquiescence is premised

upon Congress’ failure to act in response to an action it might view as previously unauthorized,

unlike the ratification context where Congress affirmatively acted to demonstrate its approval of

an agency action.” Id.; United States v. Midwest Oil Co., 236 U.S. 459, 470-73 (1915). While mere

14

legislative silence is not sufficient to show Congressional acquiescence to a practice or regulation,

evidence of Congressional awareness of an administrative practice or regulation will suffice to

show acquiescence. Id. at 1295-96. See also Micron Tech., Inc. v. United States, 243 F.3d 1301,

1311-12 (Fed. Cir. 2001). This Court held Congressional awareness is the crux of finding

Congressional acquiescence to a regulation. United States v. Beebe, 180 U.S. 343, 345 (1901);

Brooks v. Dewar, 313 U.S. 354, 360-61 (1941); Midwest Oil Co., 236 U.S. at 470-73 (holding

that because Congress knew about the long-continued practice of withdrawing public lands from

private acquisition, there was a belief Congress consented to the withdrawals); United States v.

Rutherford, 442 U.S. 544, 554 n. 10 (1979) (holding that if Congress is fully aware of an agency’s

action and does not seek to interpret or amend it, it is presumed Congress has acquiesced).

Many circuit courts have also endorsed the idea that Congressional silence means

congressional acquiescence to a new regulation. United States v. Portes, 786 F.2d 758, 765 (7th

Cir. 1985); United States v. Chimurenga, 760 F.2d 400, 405-06 (2d Cir. 1985); United States v.

Orta, 760 F.2d 887, 891 n. 20 (8th Cir. 1985); Butterbaugh v. Dep’t of Justice, 336 F.3d 1332,

1342 (Fed. Cir. 2003) (“Courts are loath to presume congressional endorsement unless the issue

plainly has been the subject of congressional attention”).

This Court analyzed Congressional acquiescence more extensively in Bob Jones University

where the Internal Revenue Service (“IRS”) denied tax-exempt status to parochial colleges that

had racially discriminatory policies. Bob Jones Univ. v. United States, 461 U.S. 574, 598 (1983).

The IRS issued rulings in both 1970 and 1971 and determined that schools with discriminatory

policies were not considered “charitable.” Id. This Court found that by failing to modify the IRS

rulings and by subsequently enacting other, related legislation, Congress had knowledge of and

acquiesced to the IRS’ rulings, thereby impliedly ratifying its decisions. Id. at 599-600.

15

This Court decided another similar case two years later in Riverside Bayview Homes, where

Congress interpreted the Army Corps of Engineers’ (“Corps”) regulation defining the “waters of

the United States.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123 (1985). In

1975, the Corps issued a regulation defining the “waters of the United States” to include all

freshwater wetlands adjacent to other covered waters. Id. at 123-24. Both chambers of Congress

debated this issue which ultimately resulted in the Corps retaining jurisdiction over the Nation’s

waters. Id. at 137. This Court held that “[a]lthough we are chary of attributing significance to

Congress’ failure to act, a refusal by Congress to overrule an agency’s construction of legislation

is at least some evidence of the reasonableness of that construction, particularly where the

administrative construction has been brought to Congress’ attention.” Id.

The Federal Circuit Court of Appeals also addressed Congressional acquiescence and

yielded an opposite outcome. In Schism, the relevant question was whether Congress acquiesced

to the military departments’ understanding of the statutes and regulations for free lifetime medical

care for retired personnel. 316 F.3d at 1294. There, the court found the plaintiffs did not offer

enough evidence that Congress “was aware of the fact that the recruiters had promised . . . free

lifetime medical care for military retirees.” Id. at 1297. In fact, when Congress considered

healthcare for retirees, it denied entitlement to free lifetime medical care. Id. at 1299. “Thus,

Congress’ action itself vitiates any argument of acquiescence.” Id.

Here, the Agencies issued an Interim Final Rule on July 16, 2019, meaning the new

Regulation went into effect on that date. On the same day, multiple non-profit civil rights

organizations filed a lawsuit seeking to enjoin applying the new Regulation. See E. Bay, 391 F.

Supp. 3d 974. After many appeals, this Court heard this case and ultimately allowed the

government to apply the new Regulation. Barr, 140 S. Ct. 3 (2019).

16

Since its inception, the new Regulation has been the topic of much debate in the media

nationwide. See e.g., Sarah Mervosh, Judge Reinstates Nationwide Injunction on Trump Asylum

Rule, NEW YORK TIMES, (Sep. 9, 2019), https://www.nytimes.com/2019/09/09/us/migrants-

asylum-injunction.html; Kristina Davis, Trump administration asks 9th Circuit to life court order

limiting asylum ban, LOS ANGELES TIMES, (Jan. 9, 2020) https://www.latimes.com/

california/story/2020-01-09/trump-administration-asks-9th-circuit-to-lift-court-order-limiting

asylum-ban; Maria Sacchetti, U.S. vows to appeal ruling that blocked Trump asylum policy, which

is aimed at curbing migration, THE WASHINGTON POST, (Jul. 25, 2019), https://www.

washingtonpost.com/immigration/us-vows-to-appeal-ruling-that-blocked-trump-asylum-policy-

which-is-aimed-at-curbing-migration/2019/07/25/17c43628-aeef-11e9-a0c96d2d7818f3da_story

.html; George Tzamaras and Belle Woods, SCOTUS Lifts Nationwide Injunction of “Asylum Ban

2.0,” AMERICAN IMMIGRATION LAWYERS ASSOCIATION, (Sep. 12, 2019), https://www.aila.org/

advo-media/press-releases/2019/scotus-lifts-nationwide-injunction-of-asylum-ban-2.

Moreover, on the same day the Federal Register published the new Regulation, the House

of Representatives published a Committee Report including exhaustive discussions of the new

Regulation’s implementation and perceived consequences. THOMPSON, COMMITTEE ON

HOMELAND SECURITY, H.R. REP. NO. 116-163, pt. 1, at 28 (2019). Given, the sheer volume of

media coverage and discussion in the Committee Reports, it is clear that Congress had abundant

knowledge of this new Regulation.

Similar to Bob Jones University, here, Congress’ knowledge on the new Regulation was

clear, and yet Congress failed to modify it by enacting a subsequent statute. See 461 U.S. at 598.

Moreover, like Riverside Bayview Homes, where both chambers of Congress heavily discussed the

topic of “waters of the United States,” here, both the media and Congress extensively debated over

17

the new Regulation. See, 474 U.S. at 137. This Court should follow its previous decisions and find

that by refusing to overrule the Agencies’ promulgated new Regulation, Congress acquiesced to

the Agencies’ reasonable interpretation of Congress’ former legislation. If Congress disapproved

of the new Regulation, it would have taken action, like it did in Schism, by enacting subsequent

legislation to impliedly overrule the new Regulation.

Petitioner may argue that Congress has not had sufficient time to act, given the new

Regulation took effect six months ago in July 2019. However, this argument lacks merit because

Congress is capable of quick action when it believes the matter is particularly urgent. See, e.g.,

H.R. 2975, 107th Cong. (2001) (enacted); S. 1510, 107th Cong. (2001) (enacted) (Congress

enacted the Patriot Act by overwhelming bipartisan margins less than one month after the attacks

on the World Trade Center).

In sum, because Congress was aware of the new Regulation and has not exercised its

plenary power to enact any subsequent, contrary legislation, Congress has impliedly acquiesced to

the permissibly constructed new Regulation and it passes the Chevron test’s second prong. Thus,

because 8 C.F.R. section 208.13(c)(4) passes the two-prong Chevron test, it is substantially valid,

and this Court should uphold it as applied to Petitioner’s asylum claim.

II. PETITIONER DOES NOT HAVE A WELL-FOUNDED FEAR OF FUTURE PERSECUTION BECAUSE SHE CAN NEITHER DEMONSTRATE SUFFICIENT INDIVIDUALIZED RISK NOR GROUP PERSECUTION

Asylum law has a humanitarian origin; it offers sanctuary to eligible individuals to escape

the persecutions of their native countries. However, the reality of our nation demands strict

standards to determine which individuals truly qualify for asylum in the United States.

Unsurprisingly, the current geopolitical climate has resulted in an upsurge of asylum filings.

According to the Office of Immigration Statistics’ most recent annual report, an estimated 115,399

18

people applied for asylum with the United States Citizen and Immigration Services in 2016. U.S.

Dep’t of Homeland Security, Office of Immigration Statistics, Annual Flow Report January 2018,

7 (2018). This number is more than a thirty-nine percent increase since 2015 and more than a one

hundred percent increase since 2014. Id. When analyzing this data over the last decade, this is the

seventh consecutive annual increase, and the highest since 1995. Id. The United States’ asylum

framework helps alleviate the sharp increase of displaced people around the world but can only

operate at a pace that abides by the regulating agencies’ standards. To maintain the efficiency of

the asylum process in the coming years, it is particularly imperative for this Court to clarify the

issues raised in this appeal.

The United States Attorney General has discretion under the INA to grant asylum to aliens

who meet the criteria of “refugee.” 8 U.S.C § 1101(a)(42)(A) (2018). A “refugee” is any person

outside their native country who is “unable or unwilling to return to . . . that country because of

persecution or a well [] founded fear of persecution.” Id. This persecution, or well-founded fear

thereof, must invoke one of the following enumerated categories: (1) race, (2) religion, (3)

nationality, (4) political opinion, or (5) membership in a particular social group. 8 U.S.C. §

1101(a)(42)(A) (2018). However, asylum is a highly discretionary remedy; the Attorney General

is not required to grant asylum to everyone who meets the above definition of refugee. See 8 C.F.R.

§ 208.13. Instead, finding that an individual is a refugee does nothing more than establish that the

Attorney General may grant asylum, under the current regulatory framework, in his discretion.

INS v. Cardoza-Fonseca, 480 U.S. 421, 441-44 (1987); INS v. Stevic, 467 U.S. 407, 423 n.18

(1984).

Persecution, at its foundation, is inflicting suffering or harm upon another. Sael v. Ashcroft,

386 F.3d 922, 924 (9th Cir. 2004). To establish the required persecution for asylum, the applicant

19

must demonstrate that she is the victim of past persecution or has a well-founded fear of future

persecution based on one of the five enumerated categories. 8 C.F.R § 208.13(b)(2). An asylum

applicant’s persecution claim must be both subjectively genuine, and objectively reasonable. Sael,

386 F.3d at 924. The subjective prong is satisfied through genuine, credible testimony, whereas

the objective prong is satisfied through showing past persecution or a well-founded fear of future

persecution. Id. Here, on appeal, Petitioner’s past persecution is not at issue. R. at “Issues on

Appeal.” The IJ and BIA previously determined she was not subject to past persecution in Azteca.

R. at 10. Thus, Petitioner’s only available method of establishing asylum eligibility is through a

well-founded fear of future persecution.

The current regulations provide two avenues for establishing a well-founded fear: (1)

sufficient individual risk, or (2) a pattern or practice of persecuting people similarly situated to the

applicant. 8 C.F.R § 208.13(b). See also Martinez-Pérez v. Session, 897 F.3d 22, 39-40 (1st Cir.

2018) (the purported persecution must exceed mere discriminatory experiences and rise to a level

of fairly high seriousness and regularity).

Persecution is an extreme term that goes beyond discrimination or harassment and instead

requires systematic and pervasive misconduct that establishes a threat to life or freedom. Id. at 39

(holding frequent verbal harassment, a home invasion, and a bottle thrown at petitioner due to her

membership in a social group was not severe enough to rise to the level of persecution). Even

threats of a menacing nature do not necessarily establish persecution. Boykov v. INS, 109 F.3d 413,

416 (7th Cir. 1997).

This high standard denotes the type and degree of suffering necessary to afford an applicant

asylum in the United States. Although caselaw, rather than Congress, dictates this standard, the

general consensus is that persecution must rise far above harassment or discrimination and include

20

the “punishment or [] infliction of suffering or harm” on the basis of an enumerated category.

Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004). See also, Sophie H. Pirie, Note: The Need for a

Codified Definition of “Persecution” in United States Refugee Law, 39 STAN. L. REV. 187, 188,

205 (1986) (although the definition of “persecution” is nebulous and malleable, it still remains an

onerous and high standard to meet).

This section of the brief will address how Petitioner has not demonstrated a well-founded

fear of persecution in Azteca, the country she travelled through prior to arriving at the United

States’ southern border. R. at. 3. Based on the previous argument, the new Regulation is valid and

applicable to Petitioner’s case. Thus, similar to the Fourteenth Circuit’s opinion, this argument

will focus on the merits of Petitioner’s asylum claim regarding Azteca. R. at 9 (“Since this court

finds that 8 C.F.R. [section] 208.13(c)(4) is constitutional and applicable in this matter,

[Petitioner’s] application for asylum becomes solely one based on asylum from Azteca”).

A. Petitioner Cannot Establish an Individual Risk of Persecution in Azteca to Sufficiently Demonstrate a Well-Founded Fear of Future Persecution

Claiming asylum based on an individual risk requires the applicant to objectively establish

they have at least a reasonable probability of facing persecution upon return to their country of

origin. Cardoza-Fonseca, 480 U.S. at 440. See also, Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.

1999) (holding individualized risk requires an asylum applicant to show more than a generalized

or random possibility of future persecution); Abankwah v. INS, 185 F.3d 18, 21, 26 (2d Cir. 1999)

(finding sufficient individual risk where the applicant’s tribe told her directly, by name, that if she

returned to her home country, Ghana, she would suffer female genital mutilation as a punishment

for engaging in premarital sex).

21

Robberies and other violence not motivated by religion, ethnicity, or any other of the

enumerated categories is not sufficient to establish an individual risk of persecution. Lie v.

Ashcroft, 396 F.2d 530, 532 (3d Cir. 2005). There, Lie and her husband were ethnically Chinese

and practicing Christians residing in Indonesia. Id. At the time, Muslim Indonesians perpetrated

widespread attacks on Chinese-Christians. Id. The attacks included vandalizing churches and

interreligious violence all without governmental response. Id. Lie’s family endured mistreatment

including threats of arson and violence, derogatory name-calling, and armed robberies on separate

occasions, one of which resulted in a physical injury. Id. at 533. On review, the Third Circuit noted

that “[s]imple robberies, in isolation, while unfortunate and troubling, does not seem to meet [the]

stringent standard” of persecution. Id. at 536. See also Gormley v. Ashcroft, 364 F.3d 1172, 1177

(9th Cir. 2004) (“Random, isolated criminal acts perpetrated by anonymous thieves do not

establish persecution”).

Moreover, even if Lie’s ethnicity may have motivated the robberies at least in part, that

motive would still not suffice to establish persecution. Lie, 396 F.2d at 534. Notably, Lie testified

that her attackers used ethnic slurs during the robberies, (“You Chinese pig, I want your money”)

yet the court still found the perpetrators were not motivated by Lie’s ethnicity or religion. Id. (citing

Halim v. Ashcroft, 109 Fed. Appx. 164, 165 (9th Cir. 2004) (“holding that a Chinese Indonesian

had not suffered past persecution after begin [sic] robbed at a Chinese restaurant by native

Indonesians who said, ‘You Chinese, give us all your belongings,’ but was rather ‘the victim of

disturbing, but random crime’”).

Similarly, a highly violent encounter, even one based on an enumerated category, also does

not automatically equate to an increased likelihood of future persecution. Melgar de Torres v.

Reno, 191 F.3d 307, 313 (2d Cir. 1999). In Melgar, Salvadoran soldiers intruded into the

22

applicant’s home and raped her. Id. at 310. Melgar argued her rape was retribution for aiding the

rebel guerilla group. Id. However, the Second Circuit found the rape was nothing more than an

“act of random violence” that did not support a well-founded fear of persecution on account of an

enumerated group. Id. at 314.

Additionally, evidence of family members or friends remaining in the applicant’s country

of origin without meeting harm diminishes the applicant’s individual risk. Id. See also Lie, 396

F.3d at 536-37; Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (an applicant’s claim of future

persecution is weakened, and even undercut, when similarly situated people close to the applicant

continue to live in the country without incident). Melgar’s mother and sister continued to live in

the same town as Melgar’s attacker without incident, despite the fact that the family as a whole

allegedly aided the rebel guerilla group. Melgar, 191 F.3d at 310. Similarly, Lie continued to live

safely in Indonesia for two years after her last robbery. Lie, 396 F.3d at 536-37.

Here, the IJ and BIA’s finding that Petitioner did not suffer a well-founded fear of

persecution certainly passes muster under the deferential standard of review applied herein. To

start, Petitioner claimed asylum by erroneously citing her fear of future persecution as a “member

of a disfavored group.” R. at 4. However, membership in a disfavored group is not one of the five

enumerated categories upon which an applicant may seek asylum. 8 C.F.R § 208.13(b)(2). Yet,

assuming arguendo, the purported persecution Petitioner fears is based on her religion as a member

of the Stars and Comets faith, the evidence Petitioner puts forth does not rise to the level required

to grant her asylum on the basis of an individualized risk.

During her month-long stay in Rancho Pequeno, Petitioner suffered various mistreatments,

including two robberies. R. at 3. Yet, the record does not include any evidence that Petitioner’s

religion motivated these robberies. Petitioner is also unable to demonstrate that her robberies were

23

“motivated at least in part” by her ethnicity or religion, like those of Lie in Indonesia. R. at 12; See

Lie, 396 F.2d at 532. Unlike Lie’s attackers, Petitioner’s attackers did not use racial or derogatory

slurs relating to Petitioner’s background, nor did they attack her while in a Stars and Comets house

of worship. R. at 3; See Lie, 396 F.3d at 535. The Third Circuit refused Lie asylum despite evidence

that her attacks were partially religiously motivated. See Lie, 396 F.3d at 536. Here, Petitioner’s

experiences do not come close to mirroring the violence Lie endured, and surely do not surpass

Lie’s mistreatment to afford her asylum in the United States. Petitioner’s robberies were

unfortunate random acts of violence that do not establish persecution or a well-founded fear

thereof.

Petitioner may attempt to argue that “the distinct green headband” associated with the Stars

and Comets faith creates a stronger connection between her attacks and her religion by making her

more susceptible to persecution. R. at 2. However, this argument lacks merit first because it was

not persuasive to the lower courts and also because, like Lie and Halim, this minor connection is

too attenuated to distinguish the incidents from those that are random. See Lie, 396 F.3d at 536;

Halim, 109 Fed. Appx. at 165.

Moreover, while in Azteca, Petitioner stayed with Ms. Martinez, another member of the

Stars and Comets religious group. R. at 3. Presumably, Ms. Martinez continues to live in Rancho

Penqeno without incident. Petitioner may point to the frequent “threatening graffiti” on her host’s

door and verbal threats by children as evidence of continued persecution, however, these types of

unfulfilled, anonymous, and unspecified threats are not sufficiently severe to rise to the stringent

standard that asylum eligibility demands. R. at 3. Much like Melgar, the fact that Petitioner’s close

friend, and fellow Stars and Comets member, has remained in Azteca safely undermines

Petitioner’s claimed fear of future persecution. See Melgar, 191 F.3d at 310.

24

The threshold of sufficient individual risk is set intentionally high for a reason. Although

the overall goal of asylum law is humanitarian relief, this Court must balance that goal with the

also important interest of pragmatism. Each year, the President of the United States, after

consulting with Congress, sets ceiling limits of asylum approvals from each country. Andorra

Bruno, Refugee Admissions and Resettlement Policy, CONGRESSIONAL RESEARCH SERVICE, Dec.

18, 2018, at CRS-2. This ceiling is based on thorough research, taking into account various

economic and social factors. Id. In fiscal year 2016, the United States only granted asylum to

approximately twenty five percent of the applicants. National Immigration Forum, Asylum Fact

Sheet (Jan. 10, 2019) (in 2016, the most recent year for which data is available, of the 73,081

asylum application, the United States granted 20,455). In 2016, the ceiling for refugees was set at

85,000 and increased to 110,000 in 2017; however, in 2018, the Executive Branch cut the ceiling

to 45,000 and again to 30,000 in 2019. ABA LEGAL FACT CHECK: EXPLORATION OF LEGALITIES

OF ASYLUM AMID CLAIMS US IS “FULL,” https://www.americanbar.org/news/abanews/

publications/youraba/2019/may-2019/aba-legal-fact-check--an-exploration-of-asylum-legalities-

amid-c/, (last visited Jan. 24, 2020).

The judiciary has no control over these caps; it can only ensure that those with the direst

circumstances are among the 30,000 available grants of asylum. Thus, as unfortunate as

Petitioner’s plight was, her experiences should not afford her a space on the limited list of those

who obtain asylum.

B. Petitioner Cannot Demonstrate Sufficient Evidence of Group-Based Persecution to Establish A Well-Founded Fear

Under the regulations, the other method of establishing asylum eligibility is demonstrating

a well-founded fear of future persecution based on a pattern or practice of persecution of people

similarly situated to the applicant. 8 C.F.R § 208.13 (b)(2)(ii)-(ii). A pattern or practice of

25

persecution exists when members of a given group are systematically and pervasively persecuted

in an organized fashion. Kotasz, 31 F.3d at 852; Avetova-Elisseva v. INS, 213 F.3d 1192, 1203 (9th

Cir. 2000) (confining viable patterns or practices of persecution to “more extreme” situations). The

archetypal example of a pattern or practice of persecution is the systematic attempt to annihilate

the Jews in Nazi Germany. Kotasz, 31 F.3d at 852. There, each individual Jew would not have to

await a “personal visit to his door by Nazi storm troopers in order to show a well-founded fear of

persecution.” Id.

In contrast, when widespread discrimination affects a particular group, even if a portion

of those individual group members suffer mistreatment that rises to the level of persecution, the

group as a whole does not meet the level of a pattern or practice of persecution. Wakkary v. Holder,

558 F.3d 1049, 1061 (9th Cir. 2009). Cf. Bromfield v. Mukasey, 543 F.3d 1071, 1078 (9th Cir.

2008) (finding a pattern or practice of persecuting gay men in Jamaica because both private

individuals and public officials perpetrated the violence); Knezevic v. Ashcroft, 367 F.3d 1206,

1208 (9th Cir. 2004) (finding that the ethnic cleansing of Serbs in Bosnia-Herzegovina was a

pattern or practice of persecution because the opposing group targeted petitioner’s entire town for

bombing and the police refused to protect the Serbs).

i. Petitioner, as a member of the Stars and Comets faith, is not subjected to a pattern or practice of persecution

A successful claim of a pattern or practice of persecution requires the applicant to show

the persecution is systematic, pervasive, and based on one of the enumerated categories. 8 C.F.R

§ 208.13(b)(2). Then, the applicant’s membership in that group makes it more likely than not that

she will face persecution upon return to that country. Wakkary, 558 F.3d at 1060.

Wakkary, an ethnically Chinese and Christian man living in Indonesia, claimed that there

was a pattern or practice of persecuting the country’s Chinese minority. Id. at 1053. Specifically,

26

he cited to a history of abuse and mistreatment, attacks on Christian churches, and the deaths of

over one thousand Chinese-Christians over a two-year period. Id. at 1054. The Ninth Circuit held

that the Chinese-Christians as a group suffered mistreatment and that some individuals’

mistreatment rose to the level of persecution. Id. at 1061. However, their situation as a whole was

not systematic or pervasive enough to establish a pattern or practice. Id. The court reiterated that

the situation in Indonesia was not similar enough to the patterns or practices of persecution

described in prior caselaw. Id. Accord, Mgoian, 184 F.3d at 1036 (finding a pattern or practice of

persecution against a family in the Kurdish-Moslems intelligentsia in Armenia because every one

of the applicant’s principle family members was specifically targeted for severe violence or death

because they participated in the Kurdish-Moslem intelligentsia); Angoucheva v. INS, 106 F.3d 781,

790 (7th Cir. 1997) (finding Macedonians who were members of the United Macedonian

Organization in Bulgaria suffered a pattern or practice of persecution because of the government’s

extreme disapproval of the group’s activities resulting in widespread sexual violence).

Here, the Fourteenth Circuit concluded that the plight of the Stars and Comets members in

Azteca did not establish a pattern or practice of persecution. R. at 12. The only evidence of group

mistreatment Petitioner offered to support her claims regarding Azteca is that threatening graffiti

on Ms. Martinez’s apartment door was “common.” R. at 3. The record includes no evidence

suggesting widespread violence against the entire Stars and Comets faith, as seen against the

applicant’s entire family in Mgoian. 184 F.3d at 1036. Petitioner’s claim is more similar to

Wakkary given that the violence against Stars and Comets as a whole was not organized,

systematic, pervasive, nor perpetrated by the Azteca government.

Although the police in Azteca did not readily offer help to Petitioner on the two instances

she alerted them to her mistreatment, there is no evidence that the Azteca police perpetrated the

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violence against her, as the government did against the Macedonians in Angoucheva. 106 F.3d at

790; R. at 3. Moreover, Petitioner only noted the Azteca police’s indifference when children

harassed her as she walked down the street. R. at 3. Thus, it is reasonable to infer the Azteca police

did not take Petitioner’s claims as a serious threat against her safety, and this Court should not

interpret the police officer’s inaction as acts of affirmative violence that mirror the acts of the

Bulgarian government in Angoucheva. 106 F.3d at 790.

Notably, the claim of pattern or practice of persecution against Stars and Comets members

is arguably stronger when considering their mistreatment in Sainte Michelle. The record includes

evidence of widespread attacks on Sainte Michellens, governmental animosity, and frequent deaths

on the basis of the group’s religious practices. R. at 2-3. Petitioner may proffer this as evidence to

support her claim of a pattern or practice of Stars and Comets members. However, the persecution

Stars and Comets members encountered in Sainte Michelle is not related to this Court’s analysis

here. Determining whether a pattern or practice of persecution exists should not take into account

the particular group’s treatment world-wide. Instead, the analysis should only focus on the

mistreatment within the particular country the applicant would return to: Azteca.

Azteca and Sainte Michelle are two related, yet very different countries. R. at 1. Apart from

supporting Sainte Michelle in its political interests, there is no evidence in the record to suggest

that Azteca has the same volatile environment as Sainte Michelle. In fact, based on the facts in the

record, Azteca seems far safer than Sainte Michelle for Stars and Comets members. R. at 2-3.

Specifically, unlike Sainte Michelle, there is no evidence of deaths of Stars and Comets members

at all in Azteca. R. at 3. Plainly, Petitioner’s circumstances in Azteca do not establish a pattern or

practice of persecution.

ii. Even if this Court adopted the disfavored group analysis, Petitioner still cannot establish a well-founded fear

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Alternatively, some circuit courts have held that asylum applicants who are unable to meet

the criteria outlined in the regulations may nonetheless qualify for asylum by demonstrating they

are a member of a disfavored group. See Kotasz, 31 F.3d at 847. Disfavored groups are those that

are not targeted for systematic persecution, but whose members are still at an increased risk of

persecution in general. Id. at 853. In other words, members of a disfavored group, by definition,

are not subject to a pattern or practice of persecution. Id. This alternate standard considers the

applicant’s membership in a disfavored group to work in tandem with the requirement of

individualized risk: the more pervasive the persecution of the disfavored group is, the less evidence

of individualized persecution is required for asylum eligibility. Id.

This Court, however, has never addressed, nor formally adopted, the controversial

disfavored group analysis. See generally Megan S. Knize, Article: On Being Very Afraid: Why We

Need A Consistent Evidentiary Standard for Asylum Seekers, 12 APPALACHIAN J.L. 123, 138

(2012) (The ramifications of the circuit split regarding the disfavored group analysis largely

impacts asylum applicants depending on their geographic location). Although the validity of the

disfavored group analysis is not at issue, it is important to explore the repercussions of this analysis.

Proponents of the disfavored group analysis, including Justice Jones’s dissent of Petitioner’s case

in the Fourteenth Circuit, argue that evidence of group-based persecution is always relevant to an

individual’s likelihood of facing future persecution. R. at 15. See e.g., Young Hao Chen v. United

States INS, 195 F.3d 198, 203-04 (4th Cir. 1999); Sael, 386 F.3d at 927 (noting a strong correlation

between the frequency of how often others in the group are mistreated and the likelihood of an

individual risk).

Circuits who have rejected the disfavored group analysis, however, mainly cite to its effect

of lowering the standard of evidence needed for asylum. Ahmed v. Gonzales, 467 F.3d 669, 675

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(7th Cir. 2006); Mohammad v. United States AG, 547 F.3d 1340, 1345 (11th Cir. 2008); Wan

Chien Kho v. Keisler, 505 F.3d 50, 55 (1st Cir. 2007) (holding that considering group membership

under the disfavored group analysis and placing the applicant in one of the five enumerated

categories is effectively “double dipping”). As discussed above, the administrative agencies that

built the regulatory framework intentionally created a heightened standard of asylum eligibility.

To protect the regulatory intent behind asylum law, the standard must remain elevated.

Here, in Petitioner’s initial application for asylum, she cites her membership in a disfavored

group as the basis of her claim. R. at 4. The Fourteenth Circuit alludes to this analysis in

discounting Petitioner’s claims by iterating, “Even if we were to adopt [the disfavored group

analysis] . . . [Petitioner] never showed a nexus between her negative experiences with Azteca

police and her membership in the Stars and Comets religion.” R. at 12. Petitioner has not provided

any evidence that Stars and Comets members in Azteca suffer any mistreatment beyond mere

discrimination. R. at 12. Considering Petitioner’s proffered evidence of unfulfilled threats, and

negative experiences with police unconnected to her faith, Petitioner has not established Stars and

Comets in Azteca are a disfavored group, let alone a group she is a member of.

Moreover, even if this Court found that 8 C.F.R. section 208.13 (c)(4) is invalid,

Petitioner’s previous mistreatment in her native country of Sainte Michelle would still not grant

her eligibility for asylum. None of the adjudicating courts in this case based their decisions on

Petitioner’s evidence of purported persecution in Sainte Michelle. R. at 4. It would be improper

for this Court to act as the factfinder and rule on Petitioner’s asylum from Sainte Michelle without

giving the IJ the opportunity. If this Court finds that the proper analysis should focus on Saint

Michelle, the proper remedy is remand to the lower court to make that determination.

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In sum, as unfortunate as the mistreatment against Petitioner has been, it does not rise to

the level of persecution. Petitioner has not demonstrated sufficient individual risk, nor a pattern or

practice of persecution in Azteca and this Court should affirm her denial of asylum.

CONCLUSION For the foregoing reasons, this Court should affirm the holding of the Fourteenth Circuit

court of appeals. The newly enacted Regulation is substantially valid under the Chevron test and

Petitioner is unable to establish her eligibility for asylum.

Date: January 27, 2020 Respectfully submitted:

Team 1017 Attorneys for Respondent,

ATTORNEY GENERAL OF THE UNITED

STATES OF AMERICA