IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60604

NADEEM ALI, also known as Inayal Sharif, 

 Petitioner,

v.

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

 Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

Before JONES, HO, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

Nadeem Ali lost his status as a legal permanent resident (“LPR”) when 

he was convicted of certain drug offenses. He challenges that result by arguing

that—at the time of his drug convictions—he was both an LPR and an asylee. 

The Board of Immigration Appeals (“Board” or “BIA”) disagreed. So do we.

I.

On December 7, 1991, Nadeem Ali left his home country of Pakistan and 

came to the United States. He used a fake visa to enter the country. So the 

Government initiated exclusion proceedings.1

1 Under the pre-1996 Immigration and Nationality Act (“INA”), proceedings brought 

against aliens attempting to enter the country were called “exclusion proceedings,” and 

proceedings brought against aliens already present in the United States were called 

United States Court of Appeals

Fifth Circuit

FILED

February 24, 2020

Lyle W. Cayce

Clerk

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2

Ali applied for asylum. See 8 U.S.C. § 1158(a)(1). He claimed a rival 

political party—the Muslim Qaumi Movement (“MQM”)—had imprisoned him 

three different times between 1982 and 1991 based on his support for the 

Pakistan People’s Party (“PPP”). On December 3, 1992, an Immigration Judge 

(“IJ”) granted Ali asylee status. The IJ found:

[Ali] had satisfied his evidentiary burden of proof establishing that

he had been persecuted and continues to have a well-founded fear

of persecution upon return to Pakistan on account of political

opinion and within the contemplation of the I&N Act. Additionally,

the court found the applicant to be deserving of political asylum as

a matter of discretion.

That barred the Attorney General from removing Ali to Pakistan as long as he 

remained an asylee. See 8 U.S.C. § 1158(c)(1); 8 C.F.R. § 208.22. 

Thereafter, Ali applied to become an LPR. See 8 U.S.C. § 1159(b). The 

Government granted Ali’s application in June of 1993. That legalized his 

permanent residence. 

It did not legalize Ali’s other behavior. In 1998, Ali pleaded no contest to

delivering drug paraphernalia. See TEX. HEALTH & SAFETY CODE § 481.125. 

And in 2013, Ali pleaded guilty to possessing cocaine. See Id. §§ 481.102, 

“deportation proceedings.” In 1996, Congress passed the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009 (1996) 

(codified as amended in scattered sections of 8 U.S.C.). After IIRIRA, both kinds of 

proceedings are simply called “removal proceedings.” See IIRIRA § 309(d)(2) (“[A]ny reference 

in law to an order of removal shall be deemed to include a reference to an order of exclusion 

and deportation or an order of deportation.”); see also Cardoso v. Reno, 216 F.3d 512, 515 n.3 

(5th Cir. 2000) (discussing the change in nomenclature); Requena-Rodriguez v. Pasquarell, 

190 F.3d 299, 308 (5th Cir. 1999) (similar). Ali’s immigration status changed before and after 

IIRIRA, so we use the terms in effect at the time of the relevant change.

At the time of Ali’s exclusion proceedings, an alien could be paroled into the United 

States pending exclusion proceedings. See, e.g., Patel v. McElroy, 143 F.3d 56, 57–59 (2d Cir. 

1998). That appears to be what happened between Ali’s arrival in the United States in 

December of 1991 and his exclusion proceedings in December of 1992. Because an alien 

subject to exclusion could be paroled into the United States, the pre-IIRIRA distinction 

between exclusion and deportation “had more to do with an alien’s legal status than with his 

location.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 175 (1993). 

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481.115. The INA authorizes the Government to remove an LPR convicted of 

an offense “relating to a controlled substance.” 8 U.S.C. § 1227(a)(2)(B)(i). 

Cocaine is a controlled substance. See 21 U.S.C. §§ 802(6), 812(c). So the 

Government initiated removal proceedings. See supra note 1.

Ali argued the Government had no power to remove him without first 

terminating his asylee status. See 8 U.S.C. § 1158(c)(2). An IJ disagreed. The 

IJ concluded Ali ceased being an asylee the moment he became an LPR. As a 

result, Ali needed to apply for asylum again if he wanted to invoke that status 

to avoid removal. So Ali did.

But this time, an IJ denied Ali’s asylum application. And the BIA 

affirmed. It concluded Ali’s status as an LPR ended his status as an asylee. It 

further found the IJ could properly reassess and reject Ali’s credibility and 

claims of persecution, notwithstanding the 1992 decision granting him asylum. 

And the Board concluded Ali was not entitled to asylum (or other relief) on the 

merits. 

In 2015, Ali petitioned this Court for review of the BIA’s decision. Ali 

argued that his successful and voluntary adjustment to LPR status did not

terminate his asylee status. See Ali v. Lynch (Ali I), 814 F.3d 306, 309 (5th Cir. 

2016). The Ali I panel said “the BIA is entitled to Chevron deference when it 

interprets a statutory provision of the INA and gives the statute ‘concrete 

meaning through a process of case-by-case adjudication.’’’ Ibid. (quoting INS 

v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999), and citing Chevron, U.S.A., Inc. 

v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). The panel nevertheless 

determined that the BIA had “not yet exercised its Chevron discretion to 

interpret the statute . . . .” Id. at 311; see also id. at 309 (“[W]e remand for the 

BIA to exercise its Chevron discretion in the first instance.”); id. at 312 (“[W]e 

conclude that the BIA did not exercise its Chevron discretion because it did not 

fully consider the statutory question . . . .”); id. at 314 (“[W]e remand for the 

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BIA to exercise its Chevron discretion . . . .”); id. at 315 (The BIA “did not 

exercise its Chevron discretion.”). So Ali I vacated the BIA’s decision and 

remanded for a fuller explanation of the Board’s interpretation of the statute. 

Id. at 314–15.

On remand, the BIA stood by its conclusion that Ali lost his asylee status 

upon becoming an LPR. But this time, the Board explained its reasons at 

length and in a precedential opinion. See Matter of N-A-I-, 27 I. & N. Dec. 72 

(BIA 2017). In the Board’s view, the statute admits only one interpretation: 

The BIA concluded the statutory text, regulations, caselaw, and legislative 

history all supported its view that a voluntary adjustment from asylee status 

to LPR status terminates the former in exchange for the latter. Then the BIA 

carefully considered Ali’s contrary position and found it foreclosed by the INA’s 

text, regulations, and caselaw. Once again, Ali petitioned for review.

II.

The first question is whether an alien loses his asylee status when he 

voluntarily and successfully adjusts to LPR status. He does.

A.

We start, as the parties do, with Ali I. In that decision, our Court held 

the BIA had “not yet exercised its Chevron discretion . . . .” Ali I, 814 F.3d at 

311; see also id. at 309, 312, 314, 315. In the first panel’s view, the BIA had not 

sufficiently grappled with the text of § 1158(c) (governing the termination of 

asylum) or § 1159(b) (governing adjustment to LPR status). See id. at 312–13. 

Ali I also faulted the BIA for not grappling with statutory context or 

administrative precedents under the INA. See id. at 313–14. And our Court 

was troubled that the Board had not yet consulted legislative history. See id.

at 314. Because the BIA had not completed these steps, the Ali I panel said it 

could only “guess at the theory underlying the agency’s action.” Id. at 315 n.10 

(quotation omitted). And “a court [cannot] be expected to chisel that which 

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must be precise from what the agency has left vague and indecisive.” Ibid.

(quotation omitted).

Administrative-law wonks call that a “Chevron Step Zero” decision. See, 

e.g., Fox v. Clinton, 684 F.3d 67, 83 (D.C. Cir. 2012) (Williams, J., concurring); 

Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 GEO. L.J. 

833, 836 (2001). Chevron Step Zero is “the initial inquiry into whether the 

Chevron framework applies at all.” Cass R. Sunstein, Chevron Step Zero, 92 

VA. L. REV. 187, 191 (2006); see, e.g., United States v. Mead Corp., 533 U.S. 218, 

226–27 (2001). But Chevron Step Zero cannot be completed where the agency 

has not yet offered its interpretation of the statute. See Fox, 684 F.3d at 83 

(Williams, J., concurring). In that circumstance, “a remand is essential.” Ibid.

That’s precisely what Ali I did. The panel noted that the Board had acted 

on Ali’s appeal without the benefit of “any earlier guidance or inquiry from this 

court.” Ali I, 814 F.3d at 315 n.10. So the panel provided both. Id. at 310–15.

But Ali I repeatedly emphasized that—rather than offer its own interpretation 

of the INA—it would “remand for the BIA to interpret the relevant INA 

provisions in the first instance.” Id. at 308; see also id. at 309, 315.

Ali argues the first panel also found that § 1158(c) and § 1159(b) are 

ambiguous. But the ambiguity question—“whether Congress has directly 

spoken to the precise question at issue”—is Chevron Step One. Chevron, 467 

U.S. at 842. Of course, Step One cannot be performed before Step Zero. See 

Mead, 533 U.S. at 226–27. And we do not share Ali’s presumption that the 

prior panel performed the Chevron steps out of order. Plus, “Chevron’s premise 

is that it is for agencies, not courts, to fill statutory gaps.” Texas v. AlabamaCoushatta Tribe of Texas, 918 F.3d 440, 447 (5th Cir. 2019) (quotation omitted). 

So it would not make sense for a court to opine on the meaning of a statute 

while repeatedly demanding the agency do it “in the first instance.” Ali I, 814 

F.3d at 308; see also id. at 309, 315. Language that might be read to the 

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contrary in Ali I is best understood as “guidance or inquiry from this court,” id.

at 315 n.10, provided to help the agency as it exercised its interpretive 

authority “in the first instance,” id. at 315. To read Ali I otherwise would mean 

the prior panel found the statute ambiguous (Step One) and blessed the BIA’s 

interpretation as one of “the reasonable interpretations” (Step Two)—but then 

didn’t defer to the BIA’s reasonable interpretation of an ambiguous part of the 

INA. Cf. id. at 311. That wouldn’t be Chevron at all. See Mead, 533 U.S. at 229 

(explaining that under Chevron, a court is “obliged to accept the agency’s 

position if Congress has not previously spoken to the point at issue and the 

agency’s interpretation is reasonable”). Ali I is best understood as a Step Zero 

decision that remanded so the Board could interpret the statute in the first 

instance.2

B.

On remand from Ali I, the BIA offered a thoughtful and thorough 

analysis of the statute. And it adopted its decision in a lengthy and 

precedential opinion. See Matter of N-A-I-, 27 I. & N. Dec. 72 (BIA 2017). In it, 

the Board explained why an asylee loses that status when he voluntarily 

adjusts to LPR status. We’re persuaded by the BIA’s explanation.

The key statutory provision at issue here says the Attorney General 

“may adjust” an asylee “to the status of an alien lawfully admitted for 

permanent residence” if the asylee meets certain requirements. 8 U.S.C. 

§ 1159(b). The word “to” indicates the alien’s status is altered in a more 

2 Of course, even if Ali I intended to find the INA provisions ambiguous, Supreme 

Court precedent still would leave the Board free to find those provisions unambiguously 

support its position. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 

967, 983 (2005) (“[T]he agency’s decision to construe that statute differently from a court does 

not say that the court’s holding was legally wrong. Instead, the agency may, consistent with 

the court’s holding, choose a different construction, since the agency remains the 

authoritative interpreter (within the limits of reason) of such statutes.”).

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fundamental sense—the alien goes from one status to another. See, e.g.,

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006) (discussing an unlawful 

reentrant’s “application to adjust his status to that of lawful permanent 

resident” (emphasis added)). The word “to” also denotes the arrival at a new 

terminus. See To, WEBSTER’S NEW INTERNATIONAL DICTIONARY 2656 (2d ed. 

1934) (“Primarily to expresses the relation of direction of approach and arrival 

making its governed word denote the terminus.”); To, OXFORD ENGLISH 

DICTIONARY (2d ed. 1989) (def. 11) (“Indicating a state or condition resulting 

from some process: So as to become.”). On the plain text, then, the BIA was 

correct to conclude a new LPR discards his old asylee status. 

Moreover, the BIA’s interpretation coheres with the broader structure 

and context of the INA. “Statutory language cannot be construed in a vacuum. 

It is a fundamental canon of statutory construction that the words of a statute 

must be read in their context and with a view to their place in the overall 

statutory scheme.” Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016) (quotation 

omitted). When we read Congress’s statutes, “it is our role to make sense rather 

than nonsense out of the corpus juris.” W. Va. Univ. Hosps., Inc. v. Casey, 499 

U.S. 83, 101 (1991). Here, it makes sense to provide different benefits (and 

burdens) for different statuses. On the BIA’s reading, an asylee gets something 

an LPR does not—a right to a pre-removal termination hearing. But an LPR 

can get several things an asylee does not. LPR status permits an alien to apply 

for the full benefits of citizenship. 8 U.S.C. § 1427(a). It permits him to seek—

on a priority basis—immigration visas on behalf of family members. Id. 

§ 1153(a)(2). It generally allows him to travel freely outside the United States 

without getting preapproval from the Attorney General. Compare id. 

§ 1101(a)(13)(C), with id. § 1158(c)(1)(C). And in certain circumstances, LPR 

status permits him to continue living in the United States even if conditions in 

his home country improve. Compare id. § 1101(a)(20), with id. §§ 1101(a)(42), 

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1158(c)(2)(A). The distinction between the two statuses would be illusory if 

their benefits (and burdens) were the same. The BIA’s reading of this 

particular provision of the INA fits within a sensible construction of the larger 

statutory scheme. 

The only other circuit to address this question also agreed with the BIA’s 

interpretation. In Mahmood v. Sessions, 849 F.3d 187 (4th Cir. 2017), the 

Fourth Circuit concluded the statute’s text clearly supported the BIA’s reading: 

“A provision that addresses two statuses and provides for the adjustment from 

one ‘to’ the other appears clearly to indicate a change to and not an accretion 

of the second status.” Id. at 191. As explained below, none of Ali’s

counterarguments convince us to create a circuit split. See Gahagan v. USCIS, 

911 F.3d 298, 304 (5th Cir. 2018) (observing that a petitioner “offer[ed] no 

argument that would justify creating a circuit split on this issue”). 

C.

Ali’s principal argument is that the BIA changed its interpretation of the 

INA without offering a “reasoned explanation” for its decision. Encino 

Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016). But the premise 

of this argument is not that the BIA changed its position. Rather, Ali says the 

BIA changed a different agency’s position. Specifically, Ali says that 

Department of Homeland Security (“DHS”) regulations and guidance suggest

an alien may hold both LPR and asylee statuses simultaneously. See 8 C.F.R. 

§ 208.14(c), (g); U.S. CITIZENSHIP & IMMIGRATION SERVICES, Affirmative 

Asylum Procedures Manual 84 (2013); U.S. CITIZENSHIP & IMMIGRATION 

SERVICES, Fact Sheet: Traveling Outside the United States as an Asylum 

Applicant, an Asylee, or a Lawful Permanent Resident Who Obtained Such

Status Based on Asylum Status (2006). Because DHS takes this view, Ali 

contends the BIA must explain its “change” in policy. 

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But the BIA is not DHS. The BIA is part of the Executive Office for 

Immigration Review, which exercises authority delegated from the Attorney 

General. See 8 U.S.C. § 1101(b)(4); 8 C.F.R. §§ 1003.0(a), 1003.10(a). DHS is a 

standalone agency led by a different principal officer. See 6 U.S.C. §§ 101(5), 

101(16), 111(a), 112. And the rule requiring an agency to give a “reasoned 

explanation” for a change in policy applies only where an agency changes its 

own policy. See, e.g., Encino Motorcars, 136 S. Ct. at 2122–23 (DOL changing 

DOL policy); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 506–10 (2009)

(FCC changing FCC policy); Brand X, 545 U.S. at 1000–01 (FCC changing FCC 

policy); Smiley v. Citibank (South Dakota) N.A., 517 U.S. 735, 742–43 (1996)

(OCC allegedly changing OCC policy). In addressing the effect of another 

agency’s potentially inconsistent position on Chevron deference, the Supreme 

Court reasoned “even if the position taken by the Department of Energy in 

[another case] was inconsistent with the [Commerce Department’s] position 

here, it would not speak to the deference owed the Commerce Department 

under Chevron.” See United States v. Eurodif S. A., 555 U.S. 305, 316 n.7 

(2009). The same rationale applies here: the BIA is not its brother’s keeper, so 

it has no obligation to explain “departures” from stances taken by a different 

agency.

Moreover, to the extent one agency is its brother’s keeper, Ali has the 

fraternal relationship backwards. The Executive Branch’s regulations say the 

BIA is in charge: 

Except as Board decisions may be modified or overruled by the 

Board or the Attorney General, decisions of the Board, and 

decisions of the Attorney General, shall be binding on all officers 

and employees of the Department of Homeland Security or 

immigration judges in the administration of the immigration laws 

of the United States. . . . Selected decisions . . . shall serve as 

precedents in all proceedings involving the same issue or issues.

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8 C.F.R. § 1003.1(g) (2018). That would make it particularly inappropriate to 

require the BIA to apologize for its “departure” from a position taken by DHS.3

Ali also argues a neighboring statutory provision implies adjustment to 

LPR status cannot strip asylee status. Section 1158(c)(2) empowers the Board 

to terminate asylee status under five circumstances. Ali says those five bases 

for terminating asylum are exhaustive—and adjustment to LPR status is not 

listed among them. But as the BIA explained in its decision, the Board did not 

terminate Ali’s asylee status. Rather, Ali did it by voluntarily adjusting to LPR 

status. Because the Board never exercised its powers under § 1158(c)(2), that 

provision provides no help to Ali.

Next, Ali argues the BIA misread the legislative history behind § 1158 

and § 1159. As an initial matter, an agency has no general obligation to cull 

legislative history for the meaning of a statute. See Azar v. Allina Health 

Servs., 139 S. Ct. 1804, 1814 (2019) (observing that “legislative history is not 

the law”) (quotation omitted); cf. Frank H. Easterbrook, Text, History, and 

Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL’Y 61, 67 (1994)

(“[S]tatutory text and structure, as opposed to legislative history and intent 

(actual or imputed), supply the proper foundation for meaning.”). Moreover,

the use of legislative history by agencies in the interpretation of statutes 

creates at least one unique danger, since agencies often play “some role in the 

3 Because the BIA and DHS both exercise executive power that ultimately flows from 

the President, see U.S. CONST. art. II, § 1, the President is empowered to resolve any 

disagreement between the two. And ever since the Judiciary Act of 1789, the Attorney 

General has had power to render opinions to settle intra-executive-branch questions and 

disputes. See Act of Sept. 24, 1789, 1 Stat. 73, 93, § 35. Today that authority is codified at 28 

U.S.C. §§ 511–513 and exercised by the Office of Legal Counsel. That reinforces our view that 

any difference between the BIA and DHS is best settled elsewhere. Cf. Dir., Office of Workers’ 

Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 

122, 129 (1995) (explaining it “would be most inappropriate” to “put the federal courts into 

the regular business of deciding intrabranch and intraagency policy disputes”); Letter from 

Chief Justice John Jay and the Associate Justices to President George Washington (Aug. 8, 

1793), in 3 CORRESPONDENCE & PUBLIC PAPERS OF JOHN JAY 488–89 (Johnston ed. 1891).

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creation of legislative history.” Christopher J. Walker, Inside Agency Statutory 

Interpretation, 67 STAN. L. REV. 999, 1038 (2015). Judges citing legislative 

history at least have the task of “looking over a crowd and picking out your 

friends.” In re DeBerry, 945 F.3d 943, 950 (5th Cir. 2019) (quotation omitted).

But when agencies draft legislative history, they make the crowd. That raises

even more concerns about the “incentives for agencies to self-deal while 

legislating in the shadows.” Christopher J. Walker, Legislating in the 

Shadows, 165 U. PA. L. REV. 1377, 1431 (2017).

Still, the BIA in this particular case considered legislative history in 

accordance with the Ali I mandate. And the Board correctly explained that the 

history does nothing to affect its reading of the INA. Even on Ali’s reading of 

it, the most the legislative history could show is that § 1158(c)(2) provides an 

exhaustive list of the bases the Board can use to terminate an asylee’s status. 

Nothing in the history undermines the Board’s view that § 1159 allows the 

alien to terminate his own asylee status by voluntarily applying for and 

receiving LPR status. 

Finally, Ali argues that it makes no sense to force LPRs to reapply for 

asylum. As he correctly notes, an alien in that scenario will bear the burden of 

demonstrating he fears persecution, often years after leaving his home 

country. 8 U.S.C. § 1158(b)(1)(B). Because the passage of time makes it more 

difficult to obtain and assess evidence, Ali says, it will be difficult for the alien 

to establish he’s entitled to asylum. If the Government seeks to terminate 

asylum because of a “fundamental change in circumstances,” it’s the 

Government that bears the burden of proof. See id. § 1158(c)(2)(A). So Ali 

argues the Government, not the alien, should bear that burden here. 

But, as we’ve explained, the Government’s authority to terminate 

asylum under § 1158(c)(2) is simply not at issue here. It’s a category error to 

equate an alien’s “voluntary surrender of his asylum status through his 

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adjustment under § 1159(b) with the involuntary loss of his asylum status 

through the Attorney General’s termination of it under § 1158(c).” Mahmood, 

849 F.3d at 192. And to the extent this is an argument about what would make 

for good policy, it’s best pressed elsewhere. See SAS Inst., Inc. v. Iancu, 138 S. 

Ct. 1348, 1358 (2018) (“Policy arguments are properly addressed to Congress, 

not this Court.”).

III.

Upon successfully adjusting to LPR status, Ali lost asylee status. 

Accordingly, to avoid removal, he needed to reapply for asylum before a second 

IJ. Ali argues the first IJ’s asylum decision in 1992 should have issuepreclusive effect on the second IJ’s asylum decision in 2014. Again, no.

A.

At the outset, it is not obvious why any of the preclusion doctrines would 

apply to the decisions of an Article II immigration judge. After all, the

preclusion doctrines derive from the legal force of judgments, which courts (not 

IJs) enter. See United States v. Ferreira, 54 U.S. (13 How.) 40, 47 (1851); 

RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1981). That’s why it (at least) 

once was true that administrative decisions did not trigger preclusion in the 

same way judicial decisions do. See, e.g., Pearson v. Williams, 202 U.S. 281, 

285 (1906) (Holmes, J.) (discussing decision by immigration official and noting 

that “[d]ecisions of a similar type long have been recognized as decisions of the 

executive department, and cannot constitute res judicata in a technical sense”); 

Churchill Tabernacle v. FCC, 160 F.2d 244, 246 (D.C. Cir. 1947) (noting “the 

well settled doctrine that res judicata and equitable estoppel do not ordinarily 

apply to decisions of administrative tribunals”).

The Supreme Court recently clarified, however, that some 

administrative determinations can enjoy issue-preclusive effect. See B & B 

Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1309–10 (2015)

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(discussing decisions by the Trademark Trial and Appeal Board). Those 

preclusive effects could raise Article III questions if applied to a court. See id.

at 1304–05 & n.2 (reserving the question). But we can identify no reason an 

agency could not apply issue preclusion to itself. The BIA apparently has done 

so. See, e.g., Ali v. Mukasey, 529 F.3d 478, 489 (2d Cir. 2008); In re Fedorenko, 

19 I. & N. Dec. 57, 61 (BIA 1984). And we have recognized that practice before. 

See Amrollah v. Napolitano, 710 F.3d 568, 571 (5th Cir. 2013).

B.

Issue preclusion against the agency does not apply unless the alien can 

prove, among other things, that “the identical issue” was previously litigated 

and adjudicated. Ibid. (quotation omitted). Moreover, “relitigation of an issue 

is not precluded unless the facts and the legal standard used to assess them

are the same in both proceedings.” Id. at 572 (quotation omitted). And “[i]ssues

of fact are not identical or the same, and therefore not preclusive, if the legal 

standards governing their resolution are significantly different.” Ibid.

(quotation omitted). To trigger issue preclusion, then, Ali bears the burden of 

showing the facts and law used to assess the issue were the same in both 

proceedings.

To carry his burden, Ali points to the 1992 IJ’s decision. In a single-page 

“Memorandum of Oral Decision and Order,” the decision says in relevant part: 

[Ali’s] application along with supporting documentation has been 

filed with the court, and hearing on the merits of the relief request 

completed on December 3, 1992. At the conclusion of the hearing, 

in the presence of counsel for both parties, and after review and 

consideration of the testimony and evidence presented, it was the 

finding of this court that the applicant had satisfied his 

evidentiary burden of proof establishing that he had been 

persecuted and continues to have a well-founded fear of 

persecution upon return to Pakistan on account of political opinion 

and within the contemplation of the I&N Act. Additionally, the 

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court found the applicant to be deserving of political asylum as a 

matter of discretion.

Ali says this paragraph precludes the Government from relitigating the issue 

of past persecution. 

It does not because the law has changed. The 1992 IJ found Ali “satisfied 

his evidentiary burden of proof that he had been persecuted” under thenexisting law. Subsequently, Congress enacted the REAL ID Act and changed 

how applicants satisfy the burden of proof for past persecution. See Pub. L. No. 

109-13, § 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. 

§ 1158(b)(1)(B)).4 We have previously recognized that these are “new 

standards” that give IJs “more discretion” in deciding whether an alien proved 

past persecution. Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009). And it’s 

well-settled that such changes undermine collateral-estoppel claims. See, e.g., 

4 For example, the REAL ID Act added a new subsection entitled “SUSTAINING 

BURDEN.” See 8 U.S.C. § 1158(b)(1)(B)(ii). It specifies: 

The testimony of the applicant may be sufficient to sustain the applicant’s burden 

without corroboration, but only if the applicant satisfies the trier of fact that the 

applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient 

to demonstrate that the applicant is a refugee. In determining whether the applicant 

has met the applicant’s burden, the trier of fact may weigh the credible testimony 

along with other evidence of record. Where the trier of fact determines that the 

applicant should provide evidence that corroborates otherwise credible testimony, 

such evidence must be provided unless the applicant does not have the evidence and 

cannot reasonably obtain the evidence. 

Ibid.

In another new subsection entitled “CREDIBILITY DETERMINATION,” the REAL ID Act 

specifies: 

Considering the totality of the circumstances, and all relevant factors, a trier of fact 

may base a credibility determination on the demeanor, candor, or responsiveness of 

the applicant or witness, the inherent plausibility of the applicant’s or witness’s 

account, the consistency between the applicant’s or witness’s written and oral 

statements (whenever made and whether or not under oath, and considering the 

circumstances under which the statements were made), the internal consistency of 

each such statement, the consistency of such statements with other evidence of record 

(including the reports of the Department of State on country conditions), and any 

inaccuracies or falsehoods in such statements . . . .

Id. § 1158(b)(1)(B)(iii).

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18A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 4422

(3d ed. 2018).

That’s sufficient to reject Ali’s issue-preclusion argument. The 1992 IJ 

did not say anything about Ali’s credibility. But even if the first IJ had, it would 

not preclude the second IJ from determining whether Ali was credible under 

the REAL ID Act’s new legal standard for “credibility determination[s].” 

8 U.S.C. § 1158(b)(1)(B)(iii). Moreover, the REAL ID Act separately directs an 

IJ to apply a new legal standard for determining whether and to what extent 

an alien’s testimony—even if credible—can establish past persecution. See id.

§ 1158(b)(1)(B)(ii). Using the REAL ID Act’s new legal standard, the 2013 IJ 

found Ali was not credible and had not established past persecution.

Ali’s only counterargument is that the REAL ID Act did not change the 

legal standard that this Court applies to review IJs’ credibility findings. But

the change in law that destroys Ali’s issue-preclusion argument is the standard 

IJs apply to determine whether claims of past persecution are supported by 

credible testimony. And Congress changed that standard with the REAL ID 

Act. See Wang, 569 F.3d at 537; supra note 4.

Applying the REAL ID Act’s new, higher legal standard, the second IJ 

found that Ali was not credible. In his first asylum application, Ali’s personal 

statement said his longest detention lasted six months. Elsewhere in the same 

application, he said it lasted sixteen months. For whatever reason, the first 

IJ’s decision said nothing about this inconsistency or about Ali’s credibility 

more generally. Obviously, the first IJ’s failure to say anything does not 

preclude the second IJ from saying something—especially given the second IJ’s 

new legal obligations under the REAL ID Act. And when the second IJ asked 

Ali about the inconsistency, Ali could not explain it. He just said it had been a 

long time and implied he couldn’t remember the details. Nor could he explain 

why he testified to being imprisoned only twice, when his application listed 

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three such incidents. Then he told the BIA “that he was advised to lie by the 

person who prepared his new asylum application.” All of this justified the 

Government’s decision to find Ali not credible.5

* * *

Ali’s voluntary and successful adjustment to LPR status ended his status 

as an asylee. And the first IJ’s decision lacked preclusive effect because the 

REAL ID Act changed the law. The petition for review is DENIED. 

5 In all events, it’s not obvious why it matters whether the Government is issueprecluded from relitigating past persecution. True, if an alien establishes past persecution, 

he presumptively has a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). 

But in this case, the 2013 IJ and the Board determined that new facts also vitiated Ali’s fear 

of future persecution. At his second asylum hearing, Ali testified that he returned to Pakistan 

twice without incident—first in 1994 for two months and then again in 2007 for over one 

month. He also stated that his political party (the PPP) is now the most powerful political 

party in Pakistan. Moreover, Ali also said that since he entered the United States, he had 

not been threatened by the MQM—even when he visited Pakistan. The Board relied on these 

facts in affirming the 2013 IJ’s denial of asylum. And Ali never challenged the substance of 

the agency’s finding that he failed to credibly establish eligibility for relief, so he forfeited 

that issue. Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)

(“Failure adequately to brief an issue on appeal constitutes [forfeiture] of that argument.”).

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