i

THE SUPREME COURT OF THE UNITED STATES

SPRING TERM, 2020

DOCKET NO. 19-19002

CAROLINA ABEL,

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON WRIT OF CERTIORARI TO THE

FOURTEENTH CIRCUIT COURT OF APPEALS

Brief for Respondent

TEAM NO. 1015

ii

QUESTIONS PRESENTED

1. Congress empowered the Attorney General to establish categorical limitations on asylum

eligibility that are consistent with the asylum statute, 8 U.S.C. § 1158. Pursuant to that

authority, the Attorney General promulgated a regulation barring asylum eligibility for

aliens who pass through third countries en route to the United States and fail to apply for

asylum there first. Did the Attorney General exceed his authority by promulgating such a

regulation?

2. The circuits agree that persecution consists only of extreme acts, not mere low-level

harassment. Petitioner Carolina Abel was accosted by children, cited numerous times for

jaywalking, and the door of her host’s home was graffitied. Did the Immigration judge err

in finding she did not have a well-founded fear of persecution?

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .........................................................................................................................ii

TABLE OF CONTENTS ............................................................................................................................ iii

TABLE OF AUTHORITIES ........................................................................................................................ vi

OPINIONS CITED BELOW ........................................................................................................................ ix

JURISDICTION ........................................................................................................................................... ix

INTRODUCTION AND SUMMARY OF ARGUMENT ............................................................................ 1

STATEMENT OF THE CASE ..................................................................................................................... 3

I. BECAUSE CONGRESS HAS NOT SPOKEN TO THE PRECISE QUESTION AND THE REGULATION IS A

PERMISSIBLE CONSTRUCTION OF THE STATUTE, 8 C.F.R. § 208.13(C)(4) IS SUBSTANTIALLY VALID

UNDER CHEVRON. .................................................................................................................................. 6

A. Congress Has Not Spoken To The Precise Question Because The Statute Is Silent As To The Denial

Of Asylum To Aliens Who Travel To The U.S. Through A Third Country Without First Applying

For Asylum In That Country. ........................................................................................................... 8

1. The safe third country bar does not address the same issue as the transit bar because it requires

agreements between countries and does not involve third country transit. ............................... 10

2. The firm resettlement bar does not address the same issue as the transit bar because it deals with

permanent status and serves a different function in the broader scheme of asylum law. ..............

................................................................................................................................................... 11

3. Even if the statute addresses related issues, it is still silent as to the precise question because

other mentions of third countries in the statute do not evince unambiguous congressional intent

as to third country transit. .......................................................................................................... 12

iv

B. Because It Is Consistent With The Statutory Text And Scheme, The INA’s Legislative History,

International Law, And The Overall Purpose Of Asylum, 8 C.F.R. § 208.13(c)(4) Is A Permissible

Construction Of The Statute. .......................................................................................................... 13

1. Because the transit bar merely exercises the very discretion the statute accords it, and because it

is harmonious with other statutory provisions, 8 C.F.R. § 208.13(c)(4) is consistent with the

statutory text and scheme. .......................................................................................................... 14

2. Because Reports and Hearings of the House of Representatives demonstrate long-standing

support for bars based on third country alternatives, 8 C.F.R. § 208.13(c)(4) is consistent with

the legislative history of 8 U.S.C. § 1158. ................................................................................. 16

3. Because the transit bar comports with the aims of the Refugee Act of 1980 as well as

international law, 8 C.F.R. § 208.13(c)(4) is consistent with the overall purpose of asylum. .. 17

4. Because the statute expressly grants the Attorney General discretion to fashion additional

limitations like the transit bar, 8 C.F.R. § 208.13(c)(4) is a permissible construction of the

statute. ........................................................................................................................................ 19

II. ABEL FAILED TO ESTABLISH ASYLUM ELIGIBILITY BECAUSE SHE HAS NOT SUFFERED PAST

PERSECUTION AND DOES NOT HAVE A WELL-FOUNDED FEAR OF PERSECUTION. ........................... 20

A. Abel Cannot Establish Refugee Status Based On Past Persecution Because Her Experiences In

Azteca Were Not Severe Enough To Meet The High Standard For Persecution. .......................... 21

1. The two robberies in Azteca were not incidents of persecution because they were not

government-sponsored nor did they have sufficient nexus to Abel’s faith. ............................. 22

2. The tickets for jaywalking do not constitute acts of persecution because Abel has shown no

nexus to her religion, and a country’s enforcement of generally applicable laws cannot be

considered persecution. ............................................................................................................ 23

v

3. The few occasions where youths chased Abel and threw objects at her are incidents of low-

level harassment which do not rise to the level of persecution. ............................................... 24

4. The anonymous graffiti left on Ms. Martinez’s door constitute low-level harassment which do

not rise to the level of persecution. .......................................................................................... 25

5. Considered together, the cumulative effect of Abel’s experiences in Azteca does not rise to the

level of severity required for a finding of past persecution. .................................................... 26

B. Abel Cannot Establish Refugee Status Based On A Well-Founded Fear Of Persecution Because

She Is Not Individually Targeted In Azteca And Because There Is Not A Pattern Or Practice Of

Persecution In Azteca. .................................................................................................................... 26

1. Abel is not the victim of systematic persecution because there is not a pattern or practice of

persecuting Stars and Comets members in Azteca. ................................................................. 27

2. Abel has not been individually targeted for persecution in Azteca because the threats she

received were unfulfilled and not addressed to her personally. ............................................... 28

CONCLUSION............................................................................................................................................ 29

vi

TABLE OF AUTHORITIES

STATUTES PAGE(S)

8 U.S.C. § 1158 ..................................................................................................................... passim.

REGULATIONS PAGE(S)

8 C.F.R. §§ 208.13(c)(4), 208.15 .......................................................................................... passim.

UNITED STATES SUPREME COURT CASES PAGE(S)

Arkansas v. Oklahoma, 503 U.S. 91, 105 (1992) ..........................................................................19

Chemical Mfrs. Ass’n v. Natural Res. Def. Council, Inc., 470 U.S. 116 (1985) .................8, 13, 17

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) ................... passim.

I.N.S. v. Abudu, 485 U.S. 94 (1988).................................................................................................7

I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999) ...............................................................................7

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) ..........................................................................27

I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) .............................................................20, 21, 22, 26

Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007)...............................................15, 19

Lopez v. Davis, 531 U.S. 230 (2001) .......................................................................................14, 15

Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S.

519 (1978) ............................................................................................................................7

UNITED STATES COURT OF APPEALS CASES PAGE(S)

Abdulai v. Ashcroft, 239 F.3d 542 (3rd Cir. 2001) ........................................................................19

Accord Tamas-Mercea v. Reno, 222 F.3d 417 (7th Cir. 2000) ......................................................21

vii

Boykov v. I.N.S., 109 F.3d 413 (7th Cir. 1997) ..............................................................................25

Cabrera v. Sessions, 890 F.3d 153 (5th Cir. 2018)........................................................................21

Cazun v. Attorney General United States, 856 F.3d 249 (3rd Cir. 2017) ................................19, 20

Chen v. U.S. I.N.S., 195 F.3d 198 (4th Cir. 1999) .........................................................................27

Cooke v. Mukasey, 538 F.3d 899 (8th Cir. 2008) ..............................................................21, 22, 24

Dia v. Ashcroft, 353 F.3d 228 (3rd Cir. 2003) .............................................................................7, 9

D’ Tchitchui v. Holder, 657 F.3d 132 (2nd Cir. 2011) ..................................................................17

Garcia-Villeda v. Mukasey, 531 F.3d 141 (2nd Cir. 2008) .............................................................7

Ghaly v. I.N.S., 58 F.3d 1425 (9th Cir. 1995) ................................................................................21

Gonzalez-Medina v. Holder, 641 F.3d 333 (9th Cir. 2011) ............................................................9

Gormley v. Ashcroft, 364 F.3d 1172 (9th Cir. 2004) ....................................................................23

Hachem v. Holder, 656 F.3d 430 (6th Cir. 2011) ..........................................................................13

Knezvic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2009) ......................................................................27

Kotasz v. I.N.S., 31 F.3d 847 (9th Cir. 1994) .................................................................................20

Lengkong v. Gonzales, 478 F.3d 859 (8th Cir. 2007) ...................................................................22

Lolong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) ......................................................................27

Lukwago v. Ashcroft, 329 F.3d 157 (3rd Cir. 2003) ..........................................................21, 22, 23

Mejia-Ramos v. Barr, 934 F.3d 789 (8th Cir. 2019)......................................................................28

Ming Ming Wijono v. Gonzales, 439 F.3d 868 (8th Cir. 2006) ....................................................24

Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) ................................................12, 13

Navas v. I.N.S., 217 F.3d 646 (9th Cir. 2000) ....................................................................21, 22, 25

Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003) ...........................................................................22

Quomsieh v. Gonzales, 479 F.3d 602 (8th Cir. 2007) ...................................................................25

viii

Ravix v. Mukasey, 552 F.3d 42 (1st Cir. 2009) .............................................................................24

Rodriguez-Rivera v. I.N.S., 848 F.2d 998 (9th Cir. 1988) .............................................................24

Sall v. Gonzales, 437 F.3d 229 (2nd Cir. 2006) .............................................................................17

Singh v. I.N.S., 134 F.3d 962 (9th Cir. 1998) ....................................................................21, 24, 25

Vasquez v. Holder, 635 F.3d 563 (1st Cir. 2011) .....................................................................9, 19

Xiao Lu Ma v. Sessions, 907 F.3d 1191 (9th Cir. 2018) ..................................................................7

Yang v. I.N.S., 79 F.3d 932 (9th Cir. 1996) ...................................................................................18

TREATIES PAGE(S)

1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223,

T.I.A.S. No. 6577 .......................................................................................................3, 5, 18

MISCELLANEOUS AUTHORITIES PAGE(S)

Department of Homeland Security (DHS) Office of Immigration Statistics, Annual Flow

Report Refugees and Asylees: 2017 7 (2019) ................................................................1, 18

H.R. REP. NO. 104-469, pt. 1, at 139 (1996) ..................................................................................16

Asylum and Inspections Reform: Hearing Before the Subcomm. on International

Law, Immigration, and Refugees of the Comm. on the Judiciary H.R.,

103rd Cong. 308 (1993) .....................................................................................................16

ix

OPINIONS CITED BELOW

Abel v. Attorney General, Dkt. No. 1658-7863 (14th Cir. 2019)

JURISDICTION

A statement of jurisdiction has been omitted in accordance with the rules of the U.C. Davis School

of Law Asylum and Refugee Law National Moot Court Competition.

1

INTRODUCTION AND SUMMARY OF ARGUMENT

Mass migration has increasingly burdened the already bloated United States immigration

system. In 2017, the number of affirmative asylum applications filed in the U.S. rose for the eighth

consecutive year, topping 139,000.1 That same year, the number of pending asylum applications

eclipsed 280,000 – a nearly one-hundred sixty percent increase from just two years prior.2 It is no

surprise that our nation’s overwhelmed immigration system forces meritorious asylum applicants

to wait years before even being considered for asylum relief.

To address this pressing humanitarian issue, the Attorney General exercised his authority

pursuant to 8 U.S.C. § 1158(b)(2)(C) to promulgate a new regulatory bar to asylum eligibility.

This new bar, 8 C.F.R. § 208.13(c)(4) (the “transit rule” or “transit bar”), bars asylum eligibility

for aliens who transited through a third country en route to the United States and failed to apply

for asylum in said third country. This rule promotes sound asylum policy objectives – it accelerates

asylum relief by limiting asylum eligibility to those who truly have nowhere else to go and

encourages our neighboring countries to shoulder their fair share of the burden. But now petitioner

Carolina Abel (“Abel”) argues on her third appeal that the Attorney General acted ultra vires when

he promulgated 8 C.F.R. § 208.13(c)(4) and that she is entitled to asylum. Her arguments lack

merit for three reasons.

First, Congress did not speak to the precise question in this case when it enacted 8 U.S.C.

§ 1158 et seq. (the “asylum statute”). Here, the precise question is whether an alien can be

categorically denied asylum eligibility based on her having transited through a third country en

1 See Department of Homeland Security (DHS) Office of Immigration Statistics, Annual Flow Report Refugees and Asylees: 2017 7 (2019) (hereinafter “DHS Asylum Report 2017”). The 139,000 applications mentioned above refers to principal applicants only and does not include the nearly 70,000 dependent applications. The 2017 data is the most recent asylee data available. 2 See id. at 8.

2

route to the United States and failing to apply for asylum in the third country. Abel contends that

the firm resettlement bar, 8 U.S.C. § 1158(b)(2)(A)(vi), and the safe third country bar, 8 U.S.C. §

1158(a)(2)(A), (collectively the “statutory bars”) manifest Congress’s answer to the precise

question here, but that argument is fatally flawed. While those bars may bear some cursory

connection to the transit bar (in that they all pertain to asylum eligibility and third countries), the

three bars are analytically distinct and bar different classes of aliens based on different criteria.

Further, Congress has delegated broad authority to the Attorney General to grant or deny asylum.

See 8 U.S.C. § 1158(a)(1). The statutory bars represent limited circumstances where Congress has

removed the Attorney General’s discretion and required that he deny asylum. But nowhere in the

statute does Congress require that he grant asylum – even when the alien is otherwise eligible for

asylum. See id. Thus, it does not follow from Congress mandating that aliens must not be eligible

for asylum when they meet the statutory bars that other aliens must be eligible for asylum if they

escape those requirements. Thus, the unambiguous language of the asylum statute does not speak

to the precise issue here.

Second, the transit bar is consistent with the text of the asylum statute, the legislative

history, international law, and the overall purpose of asylum law. The asylum statute expressly

authorizes the Attorney General to establish categorical limitations on asylum eligibility through

administrative rulemaking. See 8 U.S.C. § 1158(b)(2)(C). The transit bar is just such a categorical

limitation and is therefore consistent with the statute. The legislative history of the Immigration

and Nationality Act (“INA”) is replete with Congressional support of provisions limiting asylum

eligibility for aliens who engage in forum shopping. This sentiment is mirrored in the overall

purpose of asylum law in the eyes of the legislature and judiciary. The transit bar is consistent

with these goals because it restricts eligibility to those who had nowhere else to turn. And the

3

transit bar does not conflict with the 1967 United Nations Protocol Relating to the Status of

Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577; rather, it bolsters the laudable goal of fostering

international cooperation to share in the burden of housing the world’s homeless. Accordingly,

the transit bar is based on a permissible construction of the asylum statute and is therefore

substantially valid.

Third, Abel does not have a well-founded fear of persecution based on her experiences in

Azteca. Because Abel transited through Azteca en route to the United States and did not apply for

asylum there, she is barred from basing asylum eligibility on any purported persecution she

experienced in her home country of Saint Michelle. Thus, her application for asylum becomes one

based solely on the month she spent in Azteca. And while Abel undoubtedly had some unfortunate

experiences in Azteca, few of those incidents have the requisite connection to her faith and none

are extreme enough to meet the lofty standard for what constitutes “persecution.” Because Abel

cannot point to evidence in the record that compels a finding of a well-founded fear of persecution,

she is ineligible for asylum.

The Court should affirm the Fourteenth Circuit’s decision and hold that the transit rule is

substantially valid and that Abel cannot establish a well-founded fear of persecution as a matter of

law.

STATEMENT OF THE CASE

The asylum statute, 8 U.S.C. § 1158(b)(2)(C), authorizes the Attorney General to fashion

limitations on asylum eligibility that are consistent with the statute. (R at 7.) On July 16, 2019,

the Attorney General exercised this authority by promulgating a new regulatory bar to asylum

eligibility: the transit bar. (R at 4.) The new regulation, 8 C.F.R. § 208.13(c)(4), bars asylum

eligibility for aliens who transited through a third country en route to the United States and failed

4

to apply for asylum in that third country. Id. This dispute centers around 8 C.F.R. § 208.13(c)(4)

and its application to Petitioner Carolina Abel (“Abel”).

Abel is from the small Caribbean nation of Saint Michelle and is a lifelong member of the

Stars and Comets faith. (R at 1-2.) Stars and Comets is a small but zealous religious group with

a strong presence in Latin America and the Caribbean. (R at 1.) Their members, including Abel,

wear a green headband as part of their faith. (R at 2.) The Stars and Comets is notorious for its

secretive rituals and brazen political stances, so much so that governments and locals alike regard

it as a cult. (R at 1.) Many residents of Saint Michelle resent the Stars and Comets for their

aggressive recruitment tactics and vociferous criticism of the Saint Michelle government. (R at

2.)

Recently, the Stars and Comets group has been the subject of controversy in Saint Michelle.

Id. One politician ran for office based on a platform of expelling Stars and Comets members from

the country. Id. Although the politician ultimately lost, one Stars and Comets member was

attacked per day around the time of the election. Id.

On March 15, 2019, around fifty Stars and Comets members picketed outside the capital

building, protesting purported religious bias in the Saint Michelle government. Id. When a

counter-protest group later showed up, the peaceful protests devolved into violence. Id. Numerous

members of both groups were badly hurt, and six Stars and Comets members were fatally injured.

Id. The police arrested the remaining Stars and Comets members and two of the counter-protesters.

Id. Tensions continued to escalate thereafter, and at one point a Stars and Comets member was

dying almost weekly. (R at 3.)

Abel experienced some of the turmoil firsthand, as she was harassed and chased by

delinquents for wearing her headband. (R at 2.) On one occasion, a man struck Abel in the face

5

and grabbed her, but she was able to free herself and get to safety. Id. When Abel recounted this

incident to police, they blamed her and claimed she deserved it. Id.

Abel decided to flee Saint Michelle. (R at 3.) She stowed away on a cargo ship bound for

Azteca,3 a large nation that shares a border with the southern United States. Id. On June 17, 2019,

she arrived at Rancho Pequeno, an Aztecan town abutting the U.S. border. Id. She stayed with

Gabriela Martinez, another Stars and Comets member, at her apartment in town. Id.

During her month-long stay in Rancho Pequeno, Abel experienced some minor

misfortunes. Id. Police cited her seven times for jaywalking and demanded she pay the fines on

the spot. Id. Abel has never denied that she was guilty of jaywalking. Id. Abel was also robbed

twice by unknown assailants, and on three occasions when Abel was walking down the street,

some children chased her, threw objects at her, and shouted “go home cult freak.” Id. While Abel

called out to nearby police on two of those occasions, they did not assist. Id. Anonymous vandals

also graffitied Ms. Martinez’s door almost daily with scribbled messages that ranged from lewd

insults about Stars and Comets to death threats. Id. Ms. Martinez told Abel that this was common.

Id.

On July 17, 2019, Abel applied for asylum at the United States border between Rancho

Pequeno, Azteca and Rancho Nuevo, California, claiming past persecution and a fear of future

persecution on account of her faith. (R at 3-4.) The Immigration Judge (“IJ”) found that Abel was

ineligible for asylum pursuant to 8 C.F.R. § 208.13(c)(4) because she had not first applied for

asylum in Azteca. (R at 4.) Moreover, the IJ also found that the incidents in Azteca did not meet

3 Azteca is is a party to the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

6

the persecution or well-founded fear of persecution standards, such that she was ineligible for

asylum on that basis as well. Id.

On her first appeal, the Board of Immigration Appeals (“BIA”) affirmed the IJ’s findings.

Id. On her second appeal, Abel argued that the transit rule was invalid and that the BIA and IJ

erred when it found that she did not meet either persecution standard. Id. The Fourteenth Circuit

was unpersuaded, holding that 8 C.F.R. § 208.13(c)(4) was substantially valid under Chevron. (R

at 9.) Subsequently, the Court affirmed the IJ and BIA’s rulings that Abel was not subject to

persecution in Azteca and did not have a well-founded fear of persecution there either. (R at 10.)

This timely appeal followed.

ARGUMENT

I. BECAUSE CONGRESS HAS NOT SPOKEN TO THE PRECISE QUESTION AND THE REGULATION IS A PERMISSIBLE CONSTRUCTION OF THE STATUTE, 8 C.F.R. § 208.13(C)(4) IS SUBSTANTIALLY VALID UNDER CHEVRON.

To determine whether an agency’s regulation is a substantially valid construction of its

enabling statute, a court must engage in a two-step inquiry. Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842-43 (1984). First, the court must determine “whether

Congress has directly spoken to the precise question at issue.” Id. (emphasis added). Only where

“the intent of Congress is clear” and “unambiguously expressed” should a court conclude its

inquiry at this juncture. Id. If instead the statute is either silent or ambiguous “with respect to the

specific issue,” then the court must ask whether the agency’s regulation represents “a permissible

construction of the statute.” Id.

Agency determinations are entitled to substantial deference from the courts. See id. at 844

(“We have long recognized that … the principle of deference [should be accorded] to

7

administrative interpretations.”).4 Such deference is “especially appropriate in the immigration

context where officials ‘exercise especially sensitive political functions that implicate questions of

foreign relations.’” I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting I.N.S. v. Abudu,

485 U.S. 94, 110 (1988)).5 Because such functions are inherently political and “may affect our

relations” with other countries, and because “[t]he judiciary is not well positioned to shoulder

primary responsibility for assessing the likelihood and importance of such diplomatic

repercussions,” special deference should be accorded to agency interpretations such as the transit

bar. Id.

Further still, where a statute is highly technical or complex, courts have expressed similar

reluctance to finding an agency’s interpretation unreasonable since the agency possesses greater

expertise than the judiciary with respect to specific subjects. See Chevron, 467 U.S. at 865. As

the Ninth Circuit recently recognized, the INA is one such statute, calling it “so technical and so

complex.” Xiao Lu Ma v. Sessions, 907 F.3d 1191, 1193 (9th Cir. 2018). In light of the complexity

of the statute, the heightened political sensitivity of the immigration context, and the express

delegation of authority to the Attorney General, 8 C.F.R. § 208.13(c)(4) is entitled to substantial

deference.

4 See also Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543 (1978) (“Absent constitutional constraints or extremely compelling circumstances, the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.”). 5 See also Dia v. Ashcroft, 353 F.3d 228, 238 (3rd Cir. 2003) (“This ‘basic tenet of administrative law’ … has even more force in the immigration context where our deference is especially great.”) (citation omitted); Garcia-Villeda v. Mukasey, 531 F.3d 141, 148 (2nd Cir. 2008) (“Deference to the Attorney General’s interpretation is even more imperative ‘in the immigration context.’”) (citation omitted).

8

A. Congress Has Not Spoken To The Precise Question Because The Statute Is Silent As To The Denial Of Asylum To Aliens Who Travel To The U.S. Through A Third Country Without First Applying For Asylum In That Country.

Congress has not spoken to the precise question at issue where the plain language of the

statutory text does not explicitly address the question. Chemical Mfrs. Ass’n v. Natural Res. Def.

Council, Inc., 470 U.S. 116, 126 (1985). Additionally, even where the statute addresses related or

similar issues, Congress has not spoken to the precise question if the plain meaning of the statute

does not compel a particular interpretation as to that issue. Chevron, 467 U.S. at 860. In other

words, where the statute is entirely silent on the issue or merely ambiguous, the court must proceed

to the second step of the Chevron inquiry. Id. at 843.

Of course, the precise question must be defined at the outset based on what the regulation

at issue actually sets forth. The transit bar provides that any alien who attempts to enter the United

States from its southern border after transiting through a third country will be ineligible for asylum

unless the alien can show that he or she applied for protection in that third country and was denied.

8 C.F.R. § 208.13(c)(4)(i).

Petitioner argues that the question is whether Congress has generally spoken to the impact

of a third country alternative on asylum eligibility. But this cannot possibly be the correct framing,

as it is far too broad to do justice to the Chevron emphasis on precision. See Chevron, 467 U.S. at

842-43. Instead, the precise question here is whether an asylum seeker may be denied asylum

when they arrive at the southern border of the United States after passing through a third country

without first having applied for (and been denied) asylum in that third country.

The plain language of 8 U.S.C. § 1158 nowhere explicitly deals with this precise question.

Notably, 8 U.S.C. § 1158(a)(2) and § 1158(b)(2) each lay out several exceptions that restrict who

may apply for asylum and under what conditions it may be granted. Of the combined nine

exceptions contained in these sections, not a single one makes any mention of aliens arriving in

9

the United States after passing through a third country without first applying for asylum in that

country. 8 U.S.C. §§ 1158(a)(2), 1158(b)(2). Therefore, on its face, the statute is plainly and

simply silent on the issue. Because Congress has not spoken to the precise question here, the Court

must proceed to the second step of the Chevron inquiry.6 See Dia v. Ashcroft, 353 F.3d 228, 236

(3rd Cir. 2003) (holding that because “[t]he INA ‘is silent … with respect to’ streamlined

administrative appeals,” the streamlining regulations at issue “easily pass the first step of the

Chevron inquiry.”) (internal citation omitted).7

Petitioner argues that 8 U.S.C. § 1158 in fact addresses the issue in question. Specifically,

petitioner points to two sections of the statute where third countries are mentioned: the safe third

country bar, 8 U.S.C. § 1158(a)(2)(A), and the firm resettlement bar, 8 U.S.C. § 1158(b)(2)(A)(vi).

But there are two fatal flaws to petitioner’s contention.

First, the mere fact that the statute elsewhere deals with third countries in some fashion

does not mean that these are the only circumstances under which Congress intended for third

countries to be relevant to asylum eligibility. Put differently, it does not follow that because

Congress foreclosed asylum eligibility based on third countries under certain circumstances that

Congress meant to preserve asylum eligibility for aliens coming through third countries under

other circumstances. See Vasquez v. Holder, 635 F.3d 563, 568 (1st Cir. 2011) (holding that

Congress had not spoken to the precise question where the statute listed some events that end

continuous physical presence because that did not mean Congress intended for those to be the only

events).

6 For a more detailed discussion of each section of 8 U.S.C. § 1158, see R at 7-8. 7 See also Gonzalez-Medina v. Holder, 641 F.3d 333, 338 (9th Cir. 2011) (holding that the INA is simply silent on the issue of where past persecution may occur because nowhere does the statutory language explicitly address it).

10

Second, any plain reading of the language of these two sections reveals that neither one

speaks to the precise issue that the transit bar is concerned with:

1. The safe third country bar does not address the same issue as the transit bar because it requires agreements between countries and does not involve third country transit.

The safe third country bar is notably distinct from the transit bar.8 To start, the transit bar

has nothing to do with bilateral or multilateral agreements between the United States and other

countries, which are at the heart of the safe third country bar. Conversely, the safe third country

bar does not require that the third country be one the alien passed through en route to the United

States, which is at the heart of the transit bar. In other words, an alien that passes through a third

country without first applying for asylum in that country will be barred by the transit rule,

regardless of whether there is any agreement between the United States and the third country. On

the other hand, the safe third country bar may remove an alien to a country that has entered into

an agreement with the United States, regardless of whether the alien has ever stepped foot in that

country. Thus, the plain language of the safe third country bar evinces that it does not in any

meaningful sense address the same precise question as the transit bar.

8 The safe third country provision bars an alien’s asylum application “if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country … in which the alien’s life or freedom would not be threatened on account of [a protected ground].” 8 U.S.C. § 1158(a)(2)(A) (emphasis added).

11

2. The firm resettlement bar does not address the same issue as the transit bar because it deals with permanent status and serves a different function in the broader scheme of asylum law.

The firm resettlement bar is also notably distinct from the transit bar.9 First, as defined by

8 C.F.R. § 208.15,10 firm resettlement turns on whether the alien has received some type of

permanent status in a third country, whereas the transit bar has nothing to do with permanent status

in third countries. Instead, the transit bar is concerned only with whether the alien applied for

“protection from persecution or torture,” which generally does not entail a permanent status.

Accordingly, the firm resettlement provision would not bar someone like Abel from seeking

asylum, despite her month-long stay in Azteca, because she did not receive any offer of permanent

status there. The transit rule, on the other hand, bars her because she did not apply for asylum in

Azteca despite passing through it.

Moreover, in order for it to be true that the firm resettlement bar addresses the same issue

as the transit bar, it would have to be true that anyone to whom the transit bar applies is firmly

resettled in the third country at issue. But this is inescapably inaccurate from the plain language

of the transit bar because an alien need not be firmly resettled in a third country to be barred from

seeking asylum. Indeed, an alien who merely passes through a third country, even if only for a

short while, is ineligible for asylum if they did not first apply for protection in that third country.

9 It is worth noting that the statute itself does not define what it means to be firmly resettled. It merely states that asylum may not be granted to an alien that was “firmly resettled in another country prior to arriving in the United States.” 8 U.S.C. § 1158(b)(2)(vi). Indeed, the only definition of the term comes instead from a regulation: 8 C.F.R. § 208.15. This fact alone demonstrates that the plain language of the firm resettlement bar does not directly address the precise question at issue because Congress did not precisely define firm resettlement at all. 10 “An alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” 8 C.F.R. § 208.15 (emphasis added).

12

As such, the firm resettlement bar and the transit bar apply to fundamentally different

circumstances.

These two provisions also serve different functions. The firm resettlement bar is meant to

prevent those who already have a safe option from taking advantage of U.S. asylum law to increase

their array of safe alternatives. The transit bar, on the other hand, is meant to encourage those who

do not yet have a safe option to obtain one, if possible, before turning to the United States for

refuge. As such, both provisions play important but distinct roles in protecting the United States

from carrying more than its fair share of the international burden, ensuring that only those who

truly have nowhere else to turn benefit from its aid.

In short, because neither the safe third country bar nor the firm resettlement bar deal with

the same circumstances as the transit bar, there is nothing in the statute that directly addresses the

precise question that 8 C.F.R. § 208.13(c)(4) is concerned with.

3. Even if the statute addresses related issues, it is still silent as to the precise question because other mentions of third countries in the statute do not evince unambiguous congressional intent as to third country transit.

The mere fact that two other statutory provisions are implicated because they address

similar or related issues is not enough for petitioner to prevail on the first Chevron step. At best,

such provisions create precisely the sort of ambiguity that requires proceeding to the second step

of the inquiry.

In Morales-Izquierdo v. Gonzales, 486 F.3d 484, 487-88 (9th Cir. 2007), petitioner

challenged a regulation that authorized immigration officers, rather than immigration judges, to

reinstate removal orders. Prior to 1997, when the Attorney General promulgated the relevant

regulation, removal orders could only be reinstated by immigration judges. Id. Petitioner argued

that the regulation was invalid because Congress had directly addressed the precise question,

answering it in 8 U.S.C. § 1229(a)(1) by explicitly requiring that removal proceedings be

13

conducted by immigration judges. Id. at 489. Because reinstatement and removal are related,

petitioner posited that Congress intended for reinstatement proceedings to also be conducted by

immigration judges only. Id. Conceding that the petitioner’s argument carried some weight

because the statutory language failed to exclude reinstatement proceedings from the directive of §

1229(a)(1), the court nevertheless concluded that this “failure hardly amount[ed] to the kind of

unambiguous expression of congressional intent that would remove the agency’s discretion at

Chevron step one.” Id. at 490 (emphasis added).

Like in Morales, where reinstatement and removal were related, here, the transit bar, the

safe third country bar, and the firm resettlement bar are all related because all three relate to third

countries in some form or another. However, as in Morales, where the mere relation between the

issues was not enough to foreclose the regulation, here, the mere fact that the safe third country

bar and the firm resettlement bar are related to the transit bar “hardly amounts to the kind of

unambiguous expression of congressional intent” that is necessary for petitioner to prevail at this

juncture. Id. at 492. Accordingly, the Court must proceed to the second Chevron step.11

B. Because It Is Consistent With The Statutory Text And Scheme, The INA’s Legislative History, International Law, And The Overall Purpose Of Asylum, 8 C.F.R. § 208.13(c)(4) Is A Permissible Construction Of The Statute.

A regulation is a permissible construction of the statute where the agency’s interpretation

is consistent with the statutory text and scheme, its legislative history, and the overall purpose of

the statute. Chemical Mfrs. Ass’n, 470 U.S. at 126-30. To uphold a regulation, the court need not

find that the agency’s interpretation is the only permissible construction – or even the best.

11 See also Hachem v. Holder, 656 F.3d 430, 438 (6th Cir. 2011), where the court observed that “Congress has not spoken directly to the issue … What Congress has spoken on unambiguously is that the Attorney General has the discretion to grant voluntary departure … [and] may promulgate regulations to limit the eligibility for voluntary departure.” Here, as in Hachem, Congress has not spoken directly to the issue. What Congress has spoken to is that the Attorney General has the discretion to grant asylum and may promulgate regulations to limit eligibility.

14

Chevron, 467 U.S. at 843 n. 11 (1984). Rather, it need only find that the regulation is a reasonable

interpretation of the statute, even if it would not have been the court’s interpretation had the

question first arisen in a judicial proceeding. Id. Moreover, where there is “an express delegation

of authority to the agency” to fashion additional limitations or conditions by regulation, such

regulations are to be struck down only if they are “arbitrary, capricious, or manifestly contrary to

the statute.” Id. at 843-44.

1. Because the transit bar merely exercises the very discretion the statute accords it, and because it is harmonious with other statutory provisions, 8 C.F.R. § 208.13(c)(4) is consistent with the statutory text and scheme.

The Supreme Court dealt with a highly analogous interpretive question in Lopez v. Davis,

531 U.S. 230 (2001). In Lopez, the statute at issue stated that the Bureau of Prisons (BOP) “may

… reduce[]” “[t]he period a prisoner convicted of a nonviolent offense remains in custody after

successfully completing a [substance abuse] treatment program.” 18 U.S.C. § 3621(e)(2)(B)

(emphasis added); Id. at 233. As such, the statute identified “a class of inmates ineligible for

sentence reductions … i.e., those convicted of a violent offense.” Id. at 239. However, the

regulation at issue identified yet another category of inmates, such as petitioner, who were

ineligible for sentence reduction despite only being convicted of nonviolent offenses. Id. at 235.

The petitioner in Lopez argued that, by identifying in the statute one class of inmates that were

ineligible for sentence reductions, Congress had prohibited the BOP from identifying any

additional categories of ineligible inmates. Id. The Court disagreed, stressing that the “use of the

permissive ‘may’ in § 3621(e)(2)(B)” indicated that Congress intended to grant the BOP discretion

with respect to the sentence reduction of nonviolent inmates. Id. at 241 (emphasis added).

Accordingly, the BOP’s regulation creating an additional bar for a certain class of nonviolent

inmates was consistent with the statutory language and overall scheme. Id. at 240-41.

15

Here, as in Lopez, the petitioner argues that because 8 U.S.C. § 1158 creates two categorical

bars involving third countries (i.e., the safe third country bar and the firm resettlement bar), the

statute precludes the Attorney General from creating any additional bars involving third countries.

However, as in Lopez, nothing in the language of 8 U.S.C. § 1158 explicitly precludes the agency

from devising such additional categories. And, as in Lopez, the administrative head was accorded

broad discretion in decision-making through the use of the permissive “may.” 8 U.S.C. §

1158(a)(1); Lopez, 531 U.S. at 241. The only real distinction between the interpretive question in

Lopez and here is that the agency head in Lopez was not statutorily empowered to create categorical

administrative rules; here, the Attorney General has an explicit power to fashion “additional

limitations or conditions” pursuant to 8 U.S.C. § 1158(b)(2)(C). If the use of the word “may”

sufficed in Lopez for the Court to determine that the regulation was consistent with the statute,

surely the transit bar is consistent with statutory language that expressly authorizes the Attorney

General to devise such additional limitations. See also Long Island Care at Home, Ltd. v. Coke,

551 U.S. 158, 167-68 (2007) (holding that the fact that a statute addressed some third-party rules

did not mean it was meant to preclude other third-party rules the agency might devise, especially

in light of an express grant of discretion to do just that).

Moreover, the transit bar is perfectly harmonious with the safe third country bar and the

firm resettlement bar. After all, all three provisions serve a similar purpose: ensuring that asylum

seekers with viable alternatives do not take advantage of U.S. asylum law. Because the transit bar

is merely an exercise of the very authority that 8 U.S.C. § 1158 vests in the Attorney General, and

because it is in perfect harmony with the rest of the statute, it is a permissible construction of 8

U.S.C. § 1158.

16

2. Because Reports and Hearings of the House of Representatives demonstrate long-standing support for bars based on third country alternatives, 8 C.F.R. § 208.13(c)(4) is consistent with the legislative history of 8 U.S.C. § 1158.

The transit bar is also wholly consistent with the long legislative history of the INA. For

instance, a 1996 Report of the House of Representatives asserts that “[r]efugees fleeing persecution

should ordinarily seek protection in the first safe country to which they travel.” H.R. REP. NO.

104-469, pt. 1, at 139 (1996). Because this is exactly what the transit bar encourages aliens to do,

it represents precisely the sort of provision that the Report regretted not having at the time. See id.

(“[T]he U.S. system includes no meaningful provision for the return of aliens to countries

(including countries through which they have travelled prior to reaching the U.S.), in which they

would not be persecuted and in which they would have access to proper asylum procedures.”).

Additionally, during a 1993 Hearing of the House of Representatives, a prepared statement

read as follows: “Any alien attempting to enter this country from a safe third country should be

presumptively ineligible for asylum. Persons fleeing danger should take the advantage of the

succor at the first available opportunity. Again, no forum/nation shopping.” Asylum and

Inspections Reform: Hearing Before the Subcomm. on International Law, Immigration, and

Refugees of the Comm. on the Judiciary H.R., 103rd Cong. 308 (1993) (statement of Dan Stein,

Executive Director, Federation for American Immigration Reform). Finally, a panelist expressed

the following sentiments during a panel discussion:

[Asylum] is not intended to provide an individual with the ability to select in which of several safe countries he or she wants to live … If you have successfully avoided the persecution that has caused you to leave your home country, then the burden on the United States ought to be greatly diminished … I would say that if you have transited Heathrow, that there ought to be a burden on you to explain why you came to the United States, instead of staying in the U.K.

Id. (statement of Michael T. Lempres, former Executive Associate Commissioner for Operations,

Immigration and Naturalization Service).

17

Because the transit bar perfectly embodies these sentiments expressed in the legislative

history of the INA, it is a permissible construction of the statute. See Chemical Mfrs. Ass’n, 470

U.S. at 129 (holding that the EPA’s regulation was a permissible construction of the enabling

statute where the “legislative history itself does not evince an unambiguous congressional intention

to forbid” the regulation).

3. Because the transit bar comports with the aims of the Refugee Act of 1980 as well as international law, 8 C.F.R. § 208.13(c)(4) is consistent with the overall purpose of asylum.

In addition to being consistent with the statutory text and the legislative history, the transit

bar is also consistent with the overall purpose of asylum law. The stated purpose of the Refugee

Act of 1980 reads: “[I]t is the historic policy of the United States to respond to the urgent need of

persons subject to persecution in their homelands,” and “to encourage all nations to provide

assistance and resettlement opportunities to refugees to the fullest extent possible.” Refugee Act

of 1980, Pub. L. No. 96-212, § 101, 94 Stat. 102 (1980) (emphasis added).

The transit bar is fully consistent with these aims for two reasons. First, “the core

regulatory purpose of asylum … is ‘not to provide [applicants] with a broader choice of safe

homelands,’ but rather, to ‘protect [refugees] with nowhere else to turn.” See D’ Tchitchui v.

Holder, 657 F.3d 132, 137 (2nd Cir. 2011) (quoting Sall v. Gonzales, 437 F.3d 229, 233 (2nd Cir.

2006)). The transit bar is perfectly aligned with this aim. After all, only where asylum seekers

have unsuccessfully applied for asylum in a third country that they have transited through can they

truly be said to have “nowhere else to turn.” Id.

Second, the transit bar incentivizes asylum seekers to apply for protection in countries that

they transit through before arriving in the United States. Accordingly, the transit bar is also

perfectly aligned with the second stated purpose of the Refugee Act of 1980 because it directly

“encourage[s]” other nations “to provide assistance and resettlement.” Refugee Act § 101.

18

Because the transit bar is consistent with the stated aims of Congress and in fact directly furthers

them, it is a permissible construction of 8 U.S.C. § 1158. See Yang v. I.N.S., 79 F.3d 932, 939 (9th

Cir. 1996) (holding that the firm resettlement bar was consistent with the purpose of asylum law

because firmly resettled aliens have somewhere else to turn and because it directly encouraged the

participation of other nations).

Abel also claims that the transit bar conflicts with international law, but the opposite is

true. Nowhere does the 1967 United Nations Protocol Relating to the Status of Refugees (the

“U.N. Protocol”) prohibit contracting States from barring asylum eligibility based on an alien

failing to apply for asylum in a third country that she transited through. See 19 U.S.T. 6223,

T.I.A.S. No. 6577. Rather, the U.N. Protocol actually lists as one of its four primary considerations

in the preamble that “the grant of asylum may place unduly heavy burdens on certain countries,

and that a satisfactory solution of a problem of which the United Nations has recognized the

international scope and nature cannot therefore be achieved without international co-operation[.]”

See id. The transit bar creates an incentive for aliens to apply for asylum in other countries so that

those countries might abate the “unduly heavy burden[]” that the U.S. immigration systems

undoubtedly shoulders. See DHS Asylum Report 2017, supra note 1, at 7-8. Moreover, Article

31 of the U.N. Protocol contemplates that an alien may be penalized for failing to seek asylum in

countries that they pass through. See id.12 Thus, the transit rule is also consistent with international

law regarding asylum.

12 Article 31(1) provides “The Contracting States shall not impose penalties… on refugees who, coming directly from a territory where their life or freedom was threatened….” See 19 U.S.T. 6223, T.I.A.S. No. 6577 (emphasis added). Article 31(2) also states “The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until… they obtain admission into another country.” See id. (emphasis added).

19

4. Because the statute expressly grants the Attorney General discretion to fashion additional limitations like the transit bar, 8 C.F.R. § 208.13(c)(4) is a permissible construction of the statute.

Finally, this Court has long recognized that, where a statute expressly delegates authority

or discretion to an agency, a reasonable regulation promulgated by that agency will be deemed a

permissible construction of the statute. Arkansas v. Oklahoma, 503 U.S. 91, 105 (1992). Here, 8

U.S.C. § 1158 vests in the Attorney General broad discretion to establish or prescribe conditions

for the granting of asylum. Because the transit bar establishes precisely such a condition, it is a

reasonable exercise of its express statutory authority and therefore a permissible construction of

the statute. See id. (holding that EPA regulations establishing conditions for the issuance of

permits constituted “a perfectly reasonable exercise of the Agency’s statutory discretion” where

the statute provided that, for EPA-issued permits, “[t]he Administrator shall prescribe conditions

… to assure compliance with the requirements of [§402(a)(1)].”); see also Long Island Care, 551

U.S. at 165 (holding that where the statute authorized “the Secretary of Labor ‘to prescribe

necessary rules, regulations, and orders with regard to the amendments made by this Act,’ a

regulation accordingly prescribed was a permissible construction of such statutory discretion).

Lower courts have recognized this principle to be especially appropriate in the case of the

present statute. In a sentiment that has since been echoed by other circuits, the Third Circuit

stressed that “[i]n light of the INA’s enormously broad delegation to the Attorney General, we

would be extremely reluctant to hold that his interpretation is unreasonable.” Abdulai v. Ashcroft,

239 F.3d 542, 552 (3rd Cir. 2001) (emphasis added).13

13 See also Vasquez v. Holder, 635 F.3d 563, 569 (1st Cir. 2011) (quoting Abdulai to express similar reluctance regarding the prospect of finding the Attorney General’s interpretation of the INA to be unreasonable); Cazun v. Attorney General United States, 856 F.3d 249, 260 (3rd Cir. 2017) (stating that since “the Supreme Court has emphasized that the Attorney General can deny asylum in the agency’s discretion even when an alien meets the criteria for asylum … [i]t would be strange to find that granting

20

In short, because 8 U.S.C. § 1158 expressly delegates broad discretion to the Attorney

General, and because 8 C.F.R. § 208.13(c)(4) is consistent with the statutory text, its legislative

purpose, international law, and the overall purpose of asylum, the transit bar is a permissible

construction of the statute. As such, it is substantially valid and entitled to Chevron deference.14

II. ABEL FAILED TO ESTABLISH ASYLUM ELIGIBILITY BECAUSE SHE HAS NOT SUFFERED PAST PERSECUTION AND DOES NOT HAVE A WELL-FOUNDED FEAR OF PERSECUTION.

Because 8 C.F.R. § 208.13(c)(4) is substantially valid and because Abel did not apply for

asylum in Azteca despite transiting through it, Abel is ineligible for asylum based on any events

that took place in her home country of Saint Michelle. Thus, Abel can only base her asylum

application based on the month she spent in Azteca. The events in Saint Michelle, while admittedly

unfortunate, are irrelevant for purposes of this analysis.

Asylum eligibility determinations are factual findings that must be reviewed under the

highly deferential “substantial evidence” standard. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481

(1992). “This strict standard bars a reviewing court from independently weighing the evidence

and holding that petitioner is eligible for asylum, except in cases where compelling evidence is

shown.” Kotasz v. I.N.S., 31 F.3d 847, 851 (9th Cir. 1994). Here, the IJ and BIA determined that

Abel did not suffer persecution in Azteca and did not have a well-founded fear of future

persecution there. Thus, to reverse these factual findings, Abel must prove “that the evidence not

only supports that conclusion, but compels it[.]” Elias-Zacarias 502 U.S. at 481 n. 1 (emphasis in

original).

asylum is discretionary, but that the Attorney General must allow [alien] to apply.”) (internal citations omitted). 14 For further discussion on the extent of deference accorded to the Attorney General in matters of immigration, see Cazun, 856 F.3d at 260-61 (holding that the regulation at issue was valid even where the Attorney General’s position was flawed, “in tension with the text of” the relevant statutory provision, and “counterintuitive as applied to someone in [alien]’s situation” because deference “to the agency’s expertise on complex matters of immigration policy” was warranted).

21

To establish asylum eligibility, the alien bears the burden of establishing that she is a

“refugee” as defined in 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(1)(A), (B)(i). Abel

may qualify as a “refugee” only by showing that she is unable or unwilling to return to Azteca due

to “persecution or a well-founded fear of future persecution on account of [her] race, religion,

nationality, membership in a particular social group, or political opinion.” Elias-Zacarias, 502

U.S. at 481; see 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b).

A. Abel Cannot Establish Refugee Status Based On Past Persecution Because Her Experiences In Azteca Were Not Severe Enough To Meet The High Standard For Persecution.

To establish refugee status based on past persecution, the alien must prove that she

experienced: (1) incidents which individually or collectively rise to the level of persecution

(“persecution”); (2) on account of one of the statutorily-defined grounds (“nexus”); and (3) that

were the result of government action or forces the government is either unable or unwilling to

control (“government sponsorship”). Navas v. I.N.S., 217 F.3d 646, 655-56 (9th Cir. 2000).

The circuits have developed various formulations for what constitutes persecution, but the

essence of their standards is the same: the acts must be of an extreme or severe character. See

Singh v. I.N.S., 134 F.3d 962, 967 (9th Cir. 1998) (quoting Ghaly v. I.N.S., 58 F.3d 1425, 1431

(9th Cir. 1995)) (“[P]ersecution is an extreme concept that does not include every sort of treatment

our society regards as offensive.”). Thus, the circuits agree that “[l]ow-level intimidation and

harassment alone do not rise to the level of persecution.” Cooke v. Mukasey, 538 F.3d 899, 903

(8th Cir. 2008).15 The circuits also agree that acts which give rise to persecution are far more

grave, such as “detention, arrest, interrogation, prosecution, imprisonment, illegal searches,

15 Accord Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000); Lukwago v. Ashcroft, 329 F.3d 157, 167-68 (3rd Cir. 2003).

22

confiscation of property, surveillance, beatings, or torture.” Oforji v. Ashcroft, 354 F.3d 609, 613

(7th Cir. 2003) (internal citation omitted).16

To establish the requisite nexus, the alien must provide direct or circumstantial evidence

of the persecutor’s motives. Elias-Zacarias, 502 U.S. at 483. The statutorily protected ground

must be a “central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis

added). Moreover, although the protected ground “need not be the only reason for harm, it cannot

be incidental, tangential, superficial, or subordinate to another reason for harm.” Cabrera v.

Sessions, 890 F.3d 153 (5th Cir. 2018) (internal citations omitted).

1. The two robberies in Azteca were not incidents of persecution because they were not government-sponsored nor did they have sufficient nexus to Abel’s faith.

Abel supports her contention that she was persecuted in Azteca by pointing to two

robberies that she experienced in Rancho Pequeno. But she cannot establish the requisite nexus

between these robberies and her Stars and Comets faith. Although Abel was wearing her Stars

and Comets headband, this alone falls short of meeting the requirement that her faith was “at least

one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i); see Lengkong v.

Gonzales, 478 F.3d 859, 862-63 (8th Cir. 2007) (finding insufficient nexus where alien was robbed

and only evidence tending to show religious animus towards Christianity was alien’s cross

necklace). Therefore, Abel cannot establish the nexus element for the robberies.

Abel also cannot establish government sponsorship. For one, there is no suggestion in the

record that Azteca government actors perpetrated the robberies. And because Abel did not report

the crimes to the police, there is no evidence that the crimes were the result of forces that Azteca

was “either unable or unwilling to control.” Navas, 217 F.3d at 655-56. Thus, the robberies fail

on the government sponsorship element as well.

16 See also Lukwago, 329 F.3d at 168; Cooke, 538 F.3d at 903.

23

Abel may contend that her headband does in fact lend circumstantial evidence of nexus. It

is too coincidental, she argues, that someone who is readily identifiable as a Stars and Comets

member would be robbed twice in a single month absent some religious animus. This argument

fails because Abel has not made a showing regarding the general incidence of robberies in Rancho

Pequeno. Without such a showing, it is impossible to know whether her experience was abnormal

enough to lend an inference of religious motive for the robberies. See Gormley v. Ashcroft, 364

F.3d 1172, 1177 (9th Cir. 2004) (“Random, isolated criminal acts perpetrated by anonymous

thieves do not establish persecution.”). Because the robberies were not the result of government

action and were not centrally motivated by Abel’s faith, the robberies do not constitute persecution.

2. The tickets for jaywalking do not constitute acts of persecution because Abel has shown no nexus to her religion, and a country’s enforcement of generally applicable laws cannot be considered persecution.

Abel also claims that she was persecuted when the Rancho Pequeno police ticketed her

multiple times for jaywalking and forced her to pay the fines on the spot. While Abel’s tickets

were unquestionably the result of government action, she has shown no nexus to her faith. As

above, the only evidence that could support an inference that Abel was ticketed “on account of”

her religion is her Stars and Comets headband. And as above, without more information regarding

general ticketing practices in Rancho Pequeno, the mere fact that she was fined numerous times in

a month is insufficient to lend an inference that Abel was targeted based on her religion. Indeed,

Abel has not even contended that she was wrongfully ticketed, i.e., she has never denied being

guilty of jaywalking. As such, it is far more likely that she was ticketed for violating the law than

for her religion. Accordingly, Abel has failed to establish the requisite nexus between her

jaywalking citations and her faith.

Moreover, Abel has failed to show that these acts could be considered persecution to begin

with. After all, being fined for breaking the law does not constitute persecution. See Lukwago,

24

329 F.3d at 168 (“It is generally accepted ‘that a sovereign nation enjoys the right to enforce its

laws... and that penalties for evasion are not considered persecution.’”); see also Rodriguez-Rivera

v. I.N.S., 848 F.2d 998, 1005 (9th Cir. 1988). Accordingly, Abel has also failed to establish that

the citations are acts of persecution. Therefore, the tickets fail on two elements.

3. The few occasions where youths chased Abel and threw objects at her are incidents of low-level harassment which do not rise to the level of persecution.

Abel also argues that the three occasions where youths chased her and threw bottles at her

support her asylum claim. The government sponsorship element is concededly established by the

police’s failure to respond to Abel’s calls for help. And though some of the kids called Abel a

“cult freak” during these incidents, it is unclear whether this is sufficient to establish nexus. See

Ming Ming Wijono v. Gonzales, 439 F.3d 868, 873 (8th Cir. 2006) (finding that anti-Chinese

statements made by attackers during robbery were “insufficient to establish a nexus between the

attacks and a protected ground.”).

But even assuming that both nexus and government sponsorship have been established,

Abel still cannot show that these incidents rise to the level of persecution. Abel was not harmed

by any of the kids who harassed her. And, as stated above, persecution is an “extreme concept[.]”

See Singh, 134 F.3d at 967. Children throwing rocks and bottles at someone, on the other hand, is

much closer to acts of “[l]ow-level intimidation and harassment” which do not constitute

persecution. Cooke v. Mukasey, 538 F.3d at 903. Accordingly, the rock-throwing incidents,

standing alone, do not constitute persecution. See Ravix v. Mukasey, 552 F.3d 42, 46 (1st Cir.

2009) (upholding the B.I.A.’s finding that alien had not experienced past persecution where adult

gang members threw stones at alien and one rock hit the alien in the head).

25

4. The anonymous graffiti left on Ms. Martinez’s door constitute low-level harassment which do not rise to the level of persecution.

Abel also supports her asylum claim by pointing to the daily graffiti on Ms. Martinez’s

apartment door. These graffiti messages varied from lewd insults about the Stars and Comets to

death threats. But unfulfilled death threats generally do not constitute past persecution because,

absent physical injury, mere threats inflict no actual harm at the time they are received. See

Quomsieh v. Gonzales, 479 F.3d 602, 606 (8th Cir. 2007) (“Absent physical harm, the incidents

of harassment, unfulfilled threats of injury, and economic deprivation are not persecution.”).17

Instead, death threats are normally dealt with in the “well-founded fear of persecution” analysis.

See Gui v. I.N.S., 280 F.3d 1217, 1229 (9th Cir. 2002).

Here, the threats here were not addressed to Abel by name, and nothing in the record

suggests that anybody ever attempted to follow through on them. Because the threats are not “of

a most immediate and menacing nature,” Boykov, 109 F.3d at 416, and because there is no

associated physical injury, the threats do not rise to the level of persecution.

Thus, the only remaining aspects of the graffiti incidents relevant to the question of past

persecution are the daily vandalism and lewd insults, but Abel again fails to meet her burden. First,

there is no suggestion in the record that the vandals were members of the Azteca government.

Second, because neither Abel nor Ms. Martinez reported the vandalism to the police, this is not an

example of “police inaction in the face of… persecution[.]” Navas, 217 F.3d at 656 n. 10. Finally,

vandalism and insults are acts that, albeit unpleasant, fall short of the high bar for persecution.

Thus, because graffiti does not constitute persecution and because there is no government

sponsorship, these facts do not support a finding of past persecution. See Singh v. I.N.S., 134 F.3d

17 Accord Gui v. I.N.S., 280 F.3d 1217, 1229 (9th Cir. 2002); Boykov v. I.N.S., 109 F.3d 413, 416 (7th Cir. 1997).

26

962, 965 (9th Cir. 1998) (holding that the evidence did not compel a finding of past persecution

where alien’s home was stoned every night and police took no action when she reported it).

5. Considered together, the cumulative effect of Abel’s experiences in Azteca does not rise to the level of severity required for a finding of past persecution.

As expounded above, none of Abel’s experiences in Azteca establish past persecution

individually. They also fail to do so collectively. First, it follows logically that each individual

incident must bear a nexus to the protected ground and be the result of government sponsorship in

order to be considered in the aggregate. After all, if any given incident fails to meet either of those

two elements, then it is irrelevant whether it is extreme or severe.

Here, the few occasions where children harassed Abel are the only incidents which satisfy

both the nexus and government sponsorship requirements. Accordingly, there is simply no

collective weighing to be had here. Abel argues that the police would not have stopped the vandals

who graffitied Ms. Martinez’s door if she had reported it and therefore that incident should be

weighed as well. Even if one were to accept this speculative argument, minor vandalism and

harassment from street youths, considered together, still do not meet the high threshold of what

constitutes persecution. These incidents amount to nothing more than the sort of low-level

harassment that courts have consistently found do not rise to the level of persecution.

In short, there is insufficient evidence to even support a finding of past persecution, let

alone enough to compel it. See Elias-Zacarias 502 U.S. at 481 n. 1.

B. Abel Cannot Establish Refugee Status Based On A Well-Founded Fear Of Persecution Because She Is Not Individually Targeted In Azteca And Because There Is Not A Pattern Or Practice Of Persecution In Azteca.

Because Abel has failed to demonstrate past persecution, she is eligible for asylum only if

she can show that she has a well-founded fear of future persecution. See Elias-Zacarias, 502 U.S.

at 481. To meet her burden, it is not enough for Abel to show that she possessed a subjective fear

27

of persecution. Because the “well-founded fear of persecution” standard has both a subjective and

objective component, Abel must also show that her fear of persecution was objectively reasonable.

See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987).

To establish the subjective requirement, an alien must present “candid, credible, and

sincere testimony demonstrating a genuine fear of persecution.” Chen v. U.S. I.N.S., 195 F.3d 198,

202 (4th Cir. 1999) (internal citations/quotes omitted). The BIA made no specific finding

regarding Abel’s credibility, but we will assume arguendo that she has such a subjective fear.

To satisfy the objective requirement, the alien must “show, with specific, concrete facts,

that a reasonable person in like circumstances would fear persecution.” Id.18 An alien can meet

this requirement in three ways: (1) membership in a class that is systematically persecuted

(“systematic persecution”); (2) individual targeting; or (3) a combination of systematic persecution

and individual targeting. Id. at 202-03.

1. Abel is not the victim of systematic persecution because there is not a pattern or practice of persecuting Stars and Comets members in Azteca.

To establish systematic persecution, Abel must prove that there is a pattern or practice of

persecuting Stars and Comets members. Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007).

Here, there is no showing that there was any such pattern or practice. In fact, the only reference

in the record regarding acts directed at Stars and Comets members beyond Abel is Ms. Martinez’s

statement that the graffiti was common. But, as explained above, repeated vandalism is

insufficient to rise to the level of persecution. Without any other evidence of how Stars and Comets

18 Petitioner paints this as an overly-generous standard, arguing that “[e]ven a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear.” Knezvic v. Ashcroft, 367 F.3d 1206, 1212 (9th Cir. 2009). But this does violence to the objective standard announced by the Supreme Court in Cardoza-Fonseca, 480 U.S. at 430-31. The inquiry is not whether Abel has a ten percent chance of experiencing future persecution. Rather, the standard here mirrors the familiar formulation of objective standards elsewhere in the law: whether an objectively “reasonable person in like circumstances would fear persecution.” Chen, 195 F.3d at 202.

28

members are treated in Rancho Pequeno (or indeed, Azteca at large), there is plainly insufficient

evidence to compel the conclusion that there is a “pattern or practice” of persecuting members of

Stars and Comets in Azteca. Accordingly, Abel cannot establish a well-founded fear of

persecution based on systematic persecution.

2. Abel has not been individually targeted for persecution in Azteca because the threats she received were unfulfilled and not addressed to her personally.

Abel is also unable to establish a well-founded fear of persecution based on being

individually targeted in Azteca. True, anonymous persons graffitied death threats on Ms.

Martinez’s door while Abel was staying there, but there is no indication that the threats were

addressed to Abel by name or that the vandals even knew her identity. Indeed, per Ms. Martinez’s

own admission, the vandals began graffitiing threats on her door well before Abel even arrived to

Azteca. Moreover, nobody ever tried to follow through on these threats. Thus, the threats are

perhaps better characterized as a general display of bigotry towards Stars and Comets members

than a death threat “targeted” at Abel individually. These circumstances are plainly insufficient to

compel a finding that Abel has a well-founded fear of being individually targeted in Azteca. See

Mejia-Ramos v. Barr, 934 F.3d 789, 791, 793 (8th Cir. 2019) (Finding that alien failed to establish

a well-founded fear of persecution where the alien’s brother and father were kidnapped and never

heard from again and the alien later received an anonymous call promising that she would meet

the same fate).19

19 Of course, a well-founded fear of persecution cannot be supported by a fear of acts which do not actually constitute “persecution.” Hence, a reasonable person cannot be said to have a well-founded fear of being “individually targeted” by vandals and street youths.

29

3. Because Abel cannot show a well-founded fear of persecution in Azteca, she has failed to establish that she is a refugee and her asylum petition must be denied.

Because Abel cannot show a systematic persecution of Stars and Comets members in

Azteca, she also cannot prevail on a combined theory of systematic persecution and individual

targeting, as there is simply nothing to combine. Thus, Abel has failed to adduce evidence that

would compel a finding that a reasonable person in like circumstances would fear persecution.

Therefore, she cannot establish a well-founded fear of persecution. And because she cannot

compel a finding of past persecution either, she cannot establish refugee status within the meaning

of 8 U.S.C. § 1101(a)(42)(A). Therefore, Abel is statutorily ineligible for asylum, and the

Fourteenth Circuit’s opinion should be affirmed.

CONCLUSION

For the foregoing reasons, this Court should affirm the judgment of the Court of Appeals

by holding that the transit rule is substantially valid and that Abel cannot establish a well-founded

fear of persecution as a matter of law.

30

Respectfully Submitted,

Team 1015

Team 1015

Attorneys for Respondent