Garcia Morales v. Blanche

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LESTER J GARCIA MORALES; No. 25-1760 SHEYLA MONROY TAY; L. J. I. Agency Nos. G. M.; I. G. M.; J. G. M., A240-533-133 A240-533-134 Petitioners, A240-533-135 A240-533-137 v. A245-371-133 TODD BLANCHE, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 13, 2026 Pasadena, California Filed August 31, 2026 Before: Richard A. Paez and Patrick J. Bumatay, Circuit Judges, and Mustafa T. Kasubhai, District Judge. * * The Honorable Mustafa T. Kasubhai, United States District Judge for the District of Oregon, sitting by designation. 2 GARCIA MORALES V. BLANCHE Opinion by Judge Paez; Dissent by Judge Bumatay SUMMARY ** Immigration Granting a petition for review filed by Lester Garcia Morales, Sheyla Monroy Tay, and their three minor children of a decision of the Board of Immigration Appeals that denied Garcia Morales’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), the panel held that (1) the Circumvention of Lawful Pathways Rule (“Rule”), 88 Fed. Reg. 31314 (May 16, 2023) (codified at 8 C.F.R. §§ 208.33, 1208.33), is inconsistent with the asylum statute, and therefore, the agency erred by applying the Rule to find Petitioners ineligible for asylum; and (2) the agency erred by failing to apply this court’s complete mixed motives framework. Petitioners, natives and citizens of Guatemala, sought refuge in the United States after the same gang leader who murdered Garcia Morales’s sister threatened to kill them. The agency concluded that Garcia Morales was ineligible for asylum under the Rule, which restricts asylum eligibility for non-Mexican asylum seekers who entered the United States between ports of entry between May 11, 2023, and May 11, 2025. Migrants who entered during that time ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  GARCIA MORALES V. BLANCHE 3 are subject to the Rule regardless of when their applications are filed and adjudicated. The panel noted that the district court, in the same litigation that resulted in this court’s decisions in E. Bay Sanctuary Covenant v. Biden (East Bay I), 993 F.3d 640 (9th Cir. 2021), and E. Bay Sanctuary Covenant v. Garland (East Bay II), had recently vacated the Rule, E. Bay Sanctuary Covenant v. Trump, No. 18-CV-06810-JST, 2026 WL 1256873, at *9 (N.D. Cal. May 7, 2026), and the government has filed a notice of appeal. The panel concluded that 8 U.S.C. § 1252(f), which bars courts (other than the Supreme Court) from enjoining or restraining the operation of specified provisions except in individual cases, did not apply because the asylum statute is not covered by it and because Garcia Morales did not seek relief on a class-wide basis. The panel reaffirmed East Bay I’s holding that restricting asylum eligibility for noncitizens who enter between ports of entry impermissibly conflicts with 8 U.S.C. § 1158(a), which provides that any noncitizen who arrives in the United States—“whether or not at a designated port of arrival”— may apply for asylum. The panel wrote that the dissent principally reprised the arguments the court rejected in East Bay I, including the argument that the Rule does not affect who can apply for asylum, but only who is eligible. The panel reiterated that there is no good or plausible reason to think that Congress mandated a refugee’s right to apply for asylum based on their manner of entry and simultaneously permitted the government to deny asylum on that same basis. 4 GARCIA MORALES V. BLANCHE Responding to the dissent’s argument that the Rule is different from East Bay I because it is a rebuttable presumption subject to exceptions—not a categorical ban— the panel concluded that restricting asylum for any subset of noncitizens based on manner of entry is impermissible under § 1158(a). The panel also concluded that each exception is legally invalid or illusory. As to the exception for noncitizens denied asylum or humanitarian protection in a transit country, the panel wrote that, as the court held in East Bay II, the government cannot require asylum seekers to be denied protection in a transit country because such a requirement conflicts with the statute’s concern for the safety of asylum seekers. The panel also rejected the remaining counterarguments raised by the government and the dissent, reiterating that the panel is bound by East Bay I and II. Responding to the dissent’s argument that the panel’s decision was policy- driven, the panel wrote that it was their dissenting colleague who would ignore precedent in favor of an interpretation unmoored from the law Congress enacted. Addressing the agency’s alternative determination—that Petitioners failed to establish a nexus to a protected ground—the panel remanded for the BIA to apply the court’s complete mixed motives framework. A petitioner must establish that membership in his proposed particular social group (“PSG”) was or will be at least one central reason for his persecution. Under this court’s precedent, a motive is a central reason for harm if (1) that motive, standing alone, would have led the persecutor to harm the applicant, or (2) the persecutor would not have harmed the applicant if such motive did not exist and the motive was more than incidental or tangential. Here, the panel concluded that the BIA committed legal error by conflating the mixed motives  GARCIA MORALES V. BLANCHE 5 tests. The BIA considered whether Garcia Morales’s membership in the assumed PSGs of “taxi business owners,” or “Guatemalans who do not comply” with gang extortions, standing alone, would have led the gang leader to harm him, but failed to consider whether the gang leader “would not have harmed” him absent his membership in these PSGs, and whether the motive was more than “incidental” or “tangential.” The panel remanded for further proceedings consistent with this opinion and a concurrently filed memorandum, in which the panel addressed Petitioners’ other challenges to the agency’s adverse determinations. Dissenting, Judge Bumatay wrote that the majority’s decision usurped immigration policy from the political branches. In 8 U.S.C. § 1158(b)(2)(C), Congress delegated to the Executive broad authority to establish “limitations and conditions” on asylum eligibility as long as they are “consistent” with the asylum statute. Given the text, context, and structure of § 1158(b)(2)(C), Judge Bumatay concluded that the Rule is perfectly consistent with § 1158. The Rule does not interfere with aliens’ ability to apply for asylum; it only restricts the parameters of a successful asylum application in limited ways. Judge Bumatay wrote that the majority judicially creates a substantive “guarantee” for aliens that eliminates the government’s ability to consider manner of entry in adjudicating asylum applications. And even more, the Rule does not turn on an alien’s “manner of entry.” Instead, it applies to all aliens except for those denied asylum elsewhere or those with authorizing paperwork or a pre- scheduled appointment. Most concerning, the majority reads § 1158 so broadly that it all but forecloses the 6 GARCIA MORALES V. BLANCHE Executive from promulgating any new conditions on asylum eligibility. Judge Bumatay also concluded that East Bay I and II do not govern because the Rule does not turn on manner of entry and is not a categorical bar. The Rule includes exceptions and ways for aliens to rebut the presumption. As to the BIA’s mixed motives analysis, Judge Bumatay wrote that the majority creates a new rule that the BIA must use magic words when analyzing mixed motives cases. Under its new rule, the BIA must spell out every element of every way a petitioner may establish mixed motives before denying a claim. In Judge Bumatay’s view, the BIA’s reasonable decision should be affirmed. COUNSEL Zachary D. Aho, Law Office of Zachary D. Aho, Seattle, Washington, for Petitioners. Matthew B. George (argued), Senior Litigation Counsel; Sheri R. Glaser, Acting Assistant Director, Office of Immigration Litigation; Brett A. Shumate, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. Morgan Russell (argued), Spencer Amdur, and Cody Wofsy, American Civil Liberties Union Foundation, San Francisco, California; Lee P. Gelernt and Omar C. Jadwat, American Civil Liberties Union Foundation, New York, New York; Melissa Crow, Center for Gender and Refugee Studies, Washington, D.C.; Robert Pauw, Center for Gender and Refugee Studies, Seattle, Washington; Keren Zwick and Mary Georgevich, National Immigrant Justice Center,  GARCIA MORALES V. BLANCHE 7 Chicago, Illinois; for Amici Curiae American Civil Liberties Union, Center for Gender and Refugee Studies, and National Immigrant Justice Center. OPINION PAEZ, Circuit Judge: Lester J. Garcia Morales (“Garcia Morales” or “Petitioner”), Sheyla Monroy Tay, and their three minor children (collectively, “Petitioners”), natives and citizens of Guatemala, sought refuge in the United States after the same gang leader who murdered Garcia Morales’s sister threatened to kill them. Petitioners moved hours away from their home to escape the gang’s threats, but within two weeks, the gang found them, sent them a photo of their new front door, and again threatened to kill them. The police refused to help, offering to intervene only if they caught the gang leader in the act of murdering Garcia Morales. Out of fear for their lives, Petitioners fled Guatemala. When Garcia Morales sought asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), an Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) determined that he was ineligible for asylum under the Circumvention of Lawful Pathways Rule, 88 Fed. Reg. 31314 (May 16, 2023) (codified at 8 C.F.R. §§ 208.33, 1208.33) (“the Rule”), which restricts asylum eligibility for asylum seekers who entered the United States between ports of entry between 8 GARCIA MORALES V. BLANCHE May 11, 2023 and May 11, 2025. 1 See id. The IJ and BIA also determined that Petitioners failed to establish harm amounting to past persecution or that membership in their assumed particular social groups (“PSGs”) was a central reason for their past or feared harm. Garcia Morales raises a critical challenge to the validity of the Rule. The Rule, in turn, concerns a central promise that our law makes to noncitizens who seek refuge in the United States. Subject to narrow exceptions, the Immigration and Nationality Act (“INA”) guarantees arriving noncitizens the right to apply for asylum, irrespective of how they entered the country. See 8 U.S.C. § 1158(a). This promise is codified in the first provision of the asylum statute, which provides that any noncitizen who arrives in the United States—“whether or not at a designated port of arrival”—may apply for asylum. Id. In codifying this right, “Congress recognized that refugees fleeing imminent persecution do not have the luxury of choosing their escape route into the United States.” E. Bay Sanctuary Covenant v. Biden (East Bay I), 993 F.3d 640, 658 (9th Cir. 2021). Rather than turning away asylum seekers who cross the border out of desperation or necessity, the asylum statute prioritizes the protection of refugees—in line with our international treaty commitments and our collective values as a country. See id. at 658, 672–75; E. Bay 1 Garcia Morales’s wife and children filed separate asylum applications and are derivative beneficiaries of his asylum application. In this opinion, we address the agency’s determination that Petitioners are ineligible for asylum under the Rule and the agency’s application of the nexus standard to Garcia Morales’s asylum claim. We address Petitioners’ other challenges to the agency’s adverse asylum, withholding of removal, and CAT protection determinations in a memorandum disposition filed concurrently with this opinion.  GARCIA MORALES V. BLANCHE 9 Sanctuary Covenant v. Garland (East Bay II), 994 F.3d 962, 977 (9th Cir. 2020). We previously invalidated an asylum regulation that conflicted with § 1158(a) of the INA. In East Bay I, we affirmed the district court’s order enjoining a rule that restricted asylum eligibility for noncitizens who entered the U.S. between designated ports of entry. 993 F.3d at 669–71. Because § 1158(a) guarantees noncitizens who enter between ports of entry the right to seek asylum, we held that the government could not restrict asylum eligibility based on manner of entry. Id. In East Bay II, we reaffirmed that any additional limitations the government imposes on asylum eligibility must be consistent with the asylum statute as a whole. 994 F.3d at 976–979. There, we invalidated a rule that required asylum seekers to have applied for and been denied asylum or other protection in a country through which they traveled, as inconsistent with the statute’s concern for the safety of asylum seekers. Id. In May 2023, when the government’s Title 42 restrictions on asylum expired, 2 the government adopted the 2 Invoking authority under 42 U.S.C. §§ 265, 268, the government directed immigration officials to expel noncitizens who lacked documentation or sought to enter the U.S. between ports of entry. See 42 C.F.R. § 71.40 (implementing regulation). Known as Title 42 restrictions, these orders began in March 2020 and were renewed periodically until May 2023. See Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 17060 (Mar. 26, 2020); Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85 Fed. Reg. 22424 (Apr. 22, 2020); Amendment and 10 GARCIA MORALES V. BLANCHE Rule. The Rule limits asylum eligibility for asylum seekers like Garcia Morales, who entered the United States between May 11, 2023 and May 11, 2025, and did not present at a port of entry. 8 C.F.R. §§ 208.33, 1208.33. We are guided by our decisions in East Bay I and East Bay II. The Rule effectively reimposes the restriction we invalidated in East Bay I. We reaffirm our holding that restricting asylum eligibility for noncitizens who enter between ports of entry impermissibly conflicts with § 1158(a) and the broader asylum statute. The agency therefore erred in concluding that Petitioners are ineligible for asylum pursuant to the Rule. We also hold that the agency committed legal error in its alternative merits determination, by failing to apply this court’s complete mixed motives framework. For these reasons, we grant the petition for review and remand to the BIA for further proceedings. Extension of Order Under Sections 362 and 365 of the Public Health Service Act; Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, 85 Fed. Reg. 31503 (May 26, 2020); Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, 85 Fed. Reg. 65806 (Oct. 16, 2020); Public Health Reassessment and Order Suspending the Right to Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists, 86 Fed. Reg. 42828 (Aug. 5, 2021); Public Health Determination and Order Regarding Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists, 87 Fed. Reg. 19941 (Apr. 6, 2022).  GARCIA MORALES V. BLANCHE 11 I. A. The challenged Rule closely resembles two asylum eligibility rules that this court previously invalidated. In November 2018, the government adopted an interim final rule and accompanying presidential proclamation which, together, barred asylum for noncitizens who entered the U.S. between ports of entry. East Bay I, 993 F.3d at 658; see also Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934, 55952 (Nov. 9, 2018); Presidential Proclamation No. 9822, Addressing Mass Migration Through the Southern Border of the United States, 83 Fed. Reg. 57661, 57663 (Nov. 9, 2018). Immigration organizations filed suit challenging the rule under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and in East Bay I, we held that the rule was unlawful. 993 F.3d at 675, 681. In that case, we determined that the rule directly conflicted with the asylum statute because it required asylum seekers to “enter the United States at ports of entry to preserve their eligibility for asylum,” notwithstanding § 1158(a)’s guarantee that noncitizens may seek asylum irrespective of their manner of entry. Id. at 669–70. We also held that the rule was arbitrary and capricious for two reasons. First, it conditioned asylum eligibility on manner of entry, a factor that had long been “worth little if any weight” in the discretionary decision of whether to grant asylum in a particular case. Id. at 671–72 (quotation omitted). Second, in light of the asylum statute’s history and purpose, the rule contravened Congress’s intent to preserve 12 GARCIA MORALES V. BLANCHE asylum eligibility for people who enter between ports of entry. Id. at 672–74. The government issued a second rule, in July 2019, which restricted asylum eligibility for noncitizens unless they could show that they had applied for and been denied asylum or equivalent protection in another country. East Bay II, 994 F.3d at 973; see Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33829, 33830 (July 16, 2019). In East Bay II, we concluded that the rule was substantively invalid. 994 F.3d at 988. We held that the rule conflicted with the statute’s firm-resettlement and safe- third-country provisions, which address when a noncitizen who travels through another country “can be deemed sufficiently safe in that country to warrant a denial of asylum” in the U.S. Id. at 978. These provisions require that a noncitizen have a “genuinely safe option” in another country. Id. at 979. Because the rule required noncitizens to seek asylum elsewhere and did “virtually nothing to ensure that a third country is a ‘safe option,’” we determined that it was inconsistent with the statute. Id. at 977 (quoting E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 922, 944 (N.D. Cal. 2019)). B. In February 2023, as the Title 42 restrictions were about to end, the Department of Justice (“DOJ”) and the Department of Homeland Security (“DHS”) published notice of a proposed rule restricting asylum eligibility for noncitizens who arrive at the southwestern border (“SWB” or “southern border”) after traveling through another country. See Circumvention of Lawful Pathways, 88 Fed. Reg. 11704 (Feb. 23, 2023).  GARCIA MORALES V. BLANCHE 13 The agencies published the final rule on May 16, 2023. See 88 Fed. Reg. 31314. Entitled “Circumvention of Lawful Pathways,” the Rule applies a “presumption of ineligibility for asylum” to noncitizens who transited through another country before arriving at the southern border between May 11, 2023 and May 11, 2025. See id. at 31321; 8 C.F.R. §§ 208.33, 1208.33. Migrants who entered during the specified time period remain subject to the Rule “regardless of when the application is filed and adjudicated.” 8 C.F.R. §§ 208.33(c)(1), 1208.33(d)(1). In promulgating the Rule, the government relied on its statutory authority in 8 U.S.C. § 1158(b)(1)(A) to grant asylum and its authority in 8 U.S.C. § 1158(b)(2)(C) to establish “additional limitations and conditions” on asylum eligibility. See 88 Fed. Reg. at 31323. Under the Rule, all non-Mexican adults and families seeking asylum are presumed ineligible for such relief unless they meet one of the Rule’s limited exceptions. To avoid the presumption of ineligibility, asylum seekers must show that they: (1) were authorized to travel to the U.S. “to seek parole, pursuant to a DHS-approved parole process”; (2) applied for and were denied asylum or other protection in another country through which they traveled; or (3) “[p]resented at a port of entry” with a prescheduled appointment made through a smartphone on the U.S. Customs and Border Protection One application (“the CBP One app”), or without an appointment if they can demonstrate “by a preponderance of the evidence that it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or 14 GARCIA MORALES V. BLANCHE other ongoing and serious obstacle.” 3 See 8 C.F.R. §§ 208.33(a)(2)(ii)(A)–(C), 1208.33(a)(2)(ii)(A)–(C). 4 Asylum seekers who do not qualify for one of the above exceptions may rebut the presumption if they demonstrate “by a preponderance of the evidence that exceptionally compelling circumstances exist.” Id. at §§ 208.33(a)(3), 1208.33(a)(3). Such circumstances include cases where the asylum seeker (or a qualifying family member) was a victim of human trafficking, faced “an acute medical emergency,” or was subject to an “imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder” at the time they entered the U.S. See id. The Rule’s primary aim was to deter asylum seekers from entering the U.S. between ports of entry. 88 Fed. Reg. at 31427 (“[T]he purpose of this Rule is to discourage irregular migration.”). The government justified the Rule as “necessary to prevent the expected increase in the number of migrants who would otherwise seek to travel without authorization to the United States” upon the expiration of Title 42 restrictions on asylum. See id. at 31326; id. at 31315–17. As the government emphasized in describing the Rule, to accomplish this objective, the Rule “imposes 3 Effective January 20, 2025, the Administration terminated the CBP One appointment system and, effective March 25, 2025, certain parole processes that formed part of the Rule’s “lawful pathways.” Executive Order No. 14165 §§ 7(a)-(b), Securing Our Borders, 90 Fed. Reg. 8467, 8468 (Jan. 20, 2025); Termination of the Parole Processes for Cubans, Haitians, Nicaraguans, and Venezuelans, 90 Fed. Reg. 13611 (Mar. 25, 2025). We do not address the impact of the termination of these pathways on the Rule’s validity because we conclude that these exceptions did not render the Rule lawful. See infra Section IV.B. 4 The Rule also contains an exception for unaccompanied minors. 8 C.F.R. §§ 208.33(a)(2)(i), 1208.33(a)(2)(i).  GARCIA MORALES V. BLANCHE 15 consequences” on asylum seekers who entered the U.S. between ports of entry. Id. at 31318; see also id. at 31324– 26, 31328–29, 31341, 31361, 31369–70, 31416, 31430–32, 31444–45 (referencing “consequences”). At its core, the Rule severely limits asylum eligibility. The Rule effectively required asylum seekers to present at a port of entry to preserve their eligibility. See, e.g., id. at 11729 (explaining that the Rule imposes a “disincentive for those who might otherwise cross without authorization between ports of entry”); id. at 31324 (explaining that the Rule is expected “to reduce the number of noncitizens seeking to cross the SWB without authorization to enter the United States”). The government recognized that in pursuing its goal of reducing “irregular migration,” the Rule would result in the denial of meritorious asylum claims. See id. at 31332 (acknowledging that “the [R]ule will result in the denial of some asylum claims that otherwise may have been granted”). C. East Bay Sanctuary Covenant, joined by other advocacy organizations, challenged the validity of the Rule, arguing it conflicted with the asylum statute, was arbitrary and capricious, and was procedurally defective. The district court held that the Rule was substantively and procedurally invalid, relying on East Bay I and East Bay II, granted the plaintiffs’ motion for summary judgment, and vacated the Rule under 5 U.S.C. § 706(2). E. Bay Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025, 1053–54 (N.D. Cal. 2023). We vacated the district court’s judgment and remanded for additional proceedings in light of the Supreme Court’s decision in FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), and the termination of the CBP One 16 GARCIA MORALES V. BLANCHE appointment system and parole processes in the Rule. See E. Bay Sanctuary Covenant v. Trump, 134 F.4th 545, 547– 48 (9th Cir. 2025). The district court reaffirmed its summary judgment order and again vacated the Rule. 5 E. Bay Sanctuary Covenant v. Trump, No. 18-CV-06810-JST, 2026 WL 1256873, at *9 (N.D. Cal. May 7, 2026). The government has filed a notice of appeal. D. 1. In September of 2020, Placido Alexander Lux García (“Placido”), a leader of the Mara-18 gang, murdered Garcia Morales’s sister for failing to pay extortion to run her taxi business. A month later, Garcia Morales, who was also a taxi business owner, began receiving notes from Placido demanding extortion payments and warning that if he went to the police, the same thing would happen to him and his family. Placido sent fifteen notes threatening to kill Garcia Morales and his family and delivered six cellphones to Garcia Morales through his drivers. On October 15, 2022, Placido texted and called Garcia Morales, demanding 8,000 quetzales monthly. Garcia Morales agreed to pay 1,000 quetzales monthly “because of fear that they [the Mara-18 gang] kill my family and I.” The next day, Placido demanded 100,000 quetzales. Fearing 5 While the district court’s vacatur of the Rule prevents the BIA from applying the Rule to dismiss pending appeals, it does not moot the relief sought by Garcia Morales: namely, remand for further proceedings, because his order of removal was based in part on the Rule. See Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986) (“The test for mootness of an appeal is whether the appellate court can give the appellant any effective relief in the event that it decides the matter on the merits in his favor. If it can grant such relief, the matter is not moot.”).  GARCIA MORALES V. BLANCHE 17 death, Garcia Morales and his family relocated to a relative’s house two hours away. Ten days later, Placido and Mara-18 found them. Garcia Morales received a note under the gate of his new house titled “FOR LESTER AND SHEYLA DEATH HAHAHAHA.” The note gave Garcia Morales ten days to pay 100,000 quetzales or Placido would murder the entire family, “even the dog of the house.” The letter ended: “IF YOU GO TO THE POLICE YOU WILL REGRET IT, DEATH OR LIFE YOU DECIDE, DOG.” Garcia Morales also received a texted photo of the front door at the new house, stating that Mara-18 had him under surveillance. Garcia Morales reported the threats to the police. The police said that they “had lots of reports” about Placido but because he “belonged to a very big . . . criminal band,” they could not take action unless they caught him in the act of murdering Garcia Morales. Petitioners fled Guatemala on October 26, 2022. One night, the smuggler transporting Petitioners stopped the car, demanded more money, and called the cartel to tell them to kidnap Petitioners. Garcia Morales and his family escaped on a passing bus. Petitioners entered the U.S. in October 2023. 2. Petitioners appeared unrepresented before the IJ. The IJ held that Petitioners were subject to the Rule’s presumption of ineligibility for asylum because they entered between ports at the southern border in October 2023 and did not satisfy any of the Rule’s exceptions. The BIA agreed, holding that the smuggler’s threat to kidnap Petitioners was not “so ‘imminent and extreme’ as to rebut the presumption 18 GARCIA MORALES V. BLANCHE of ineligibility.” With respect to Petitioners’ argument that the Rule conflicts with the INA, the BIA responded: “[W]e are bound by the rule and must apply it.” Alternatively, the IJ denied Petitioners’ applications on the merits. The IJ held that Garcia Morales failed to establish a cognizable PSG or a nexus to a protected ground. The BIA conducted an independent review of the evidence and law and dismissed the appeal. The BIA assumed Petitioners had established a cognizable PSG based on their status as “taxi owners,” “taxi business owners,” “Guatemalans who do not comply with gang extortions,” or “Guatemalans who have not complied with gang demands,” but concluded that they failed to establish that membership in these groups was or would be a central reason for their past or feared harm. We ordered supplemental briefing on the Rule’s validity. Garcia Morales v. Bondi, No. 25-1760, 2026 WL 457554, at *1 (9th Cir. Feb. 18, 2026). Garcia Morales renews his argument that the Rule is inconsistent with the INA. The government argues that the Rule is within its statutory authority to grant asylum under 8 U.S.C. § 1158(b) and to establish “additional limitations and conditions” on asylum eligibility under 8 U.S.C. § 1158(b)(2)(C). See 88 Fed. Reg. at 31323. II. When the BIA conducts its own review of the evidence and law, our review is limited to the BIA’s decision except to the extent that it “expressly” adopts the IJ’s opinion. Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th Cir. 2021); Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). In reviewing the BIA’s decision, our review is limited to the grounds “explicitly” relied upon by the Board. Budiono v.  GARCIA MORALES V. BLANCHE 19 Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016). We review factual determinations for substantial evidence and questions of law de novo. Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014). “If we conclude that the BIA’s decision cannot be sustained upon its reasoning, we must remand.” Regalado-Escobar v. Holder, 717 F.3d 724, 729 (9th Cir. 2013) (quoting Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004)). III. We have jurisdiction under 8 U.S.C. § 1252(a). Under 8 U.S.C. § 1252(f), only the Supreme Court has “jurisdiction or authority to enjoin or restrain the operation of” specified provisions of the INA, 8 U.S.C. §§ 1221–1232, “other than with respect to the application of such provisions to an individual [noncitizen] against whom proceedings under such part have been initiated.” 8 U.S.C. § 1252(f)(1). The phrase “operation of” the specified INA provisions includes agency policies that “implement” them. Garland v. Aleman Gonzalez, 596 U.S. 543, 549–50 (2022). However, the jurisdictional “[l]imit on injunctive relief” in § 1252(f)(1) is inapplicable to this petition for review. 8 U.S.C. § 1252(f)(1). Section 1252(f) applies only to the provisions it specifies, and the asylum statute, 8 U.S.C. § 1158, is not one of the provisions listed. See 8 U.S.C § 1252(f)(1) (referencing 8 U.S.C. §§ 1221–1232). By specifying only certain provisions, § 1252(f)’s “plain text makes clear that its limitations on injunctive relief do not apply to other provisions of the INA.” Gonzalez v. ICE, 975 F.3d 788, 813 (9th Cir. 2020). That the asylum statute may ultimately affect some of the specified provisions does not bring it within the ambit of § 1252(f). See Gonzales v. DHS, 508 20 GARCIA MORALES V. BLANCHE F.3d 1227, 1233 (9th Cir. 2007) (holding that § 1252(f) does not implicate the adjustment of status statute merely because it might have collateral effects on removal). Even assuming a collateral impact on specified provisions could trigger § 1252(f), the statute establishes that circuit courts “retain the authority to ‘enjoin or restrain the operation of’ the relevant statutory provisions ‘with respect to the application of such provisions to an individual [noncitizen] against whom proceedings under such part have been initiated.’” Aleman Gonzalez, 596 U.S. at 550 (quoting 8 U.S.C. § 1252(f)(1)); Reno v. Am.-Arab Anti- Discrimination Comm., 525 U.S. 471, 481–82 (1999) (explaining that § 1252(f)(1) “does not extend to individual cases”). Garcia Morales is seeking relief in his individual case, not on a class-wide basis; thus, 8 U.S.C. § 1252(f) is inapplicable. IV. We turn next to the Rule’s validity. Petitioners argue that the Rule is inconsistent with the asylum statute, as interpreted by this court in East Bay I and East Bay II. We agree. A. We first consider whether the Rule is “consistent with” the asylum statute. 8 U.S.C. § 1158(b)(2)(C); United States v. Larionoff, 431 U.S. 864, 873 (1977) (“[R]egulations, in order to be valid must be consistent with the statute under which they are promulgated”). The Rule limits asylum eligibility based on “whether or not [noncitizens entered] at a designated port of arrival.” 8 U.S.C. § 1158(a)(1). Under the Rule, adults and accompanied minors who lack parole authorization and wish  GARCIA MORALES V. BLANCHE 21 to preserve their eligibility for asylum must decide ex ante whether to seek asylum in a transit country (an unlawful requirement under East Bay II) or present at a port of entry (an unlawful requirement under East Bay I). For those noncitizens who fail to obtain an asylum denial from a transit country before reaching the SWB and lack “exceptionally compelling circumstances,” the Rule bars asylum eligibility if they enter between ports. 8 C.F.R. §§ 208.33(a)(2)–(3), 1208.33(a)(2)–(3). Put differently, under the Rule, noncitizens who enter between ports are ineligible for asylum absent a qualifying exception. Notwithstanding its framing as a “presumption of ineligibility,” see infra Section IV.B, the Rule is thus best understood as an affirmative restriction based on manner of entry. Id. §§ 208.33(a)(1), 1208.33(a)(1). This appeal therefore presents a similar question of statutory interpretation that we considered in East Bay I: namely, whether the asylum statute permits the government to restrict asylum eligibility for noncitizens who enter the U.S. between designated ports of arrival. Compare 83 Fed. Reg. 55934, with 88 Fed. Reg. 31314; East Bay I, 993 F.3d at 670–71. Our task in interpreting a statute that “delegates discretionary authority to an agency” is to “independently interpret the statute and effectuate the will of Congress.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 395 (2024). We reaffirm our holding that pursuant to the “best reading of the statute,” the government cannot deem noncitizens ineligible for asylum because they entered the U.S. between ports of entry. Id. at 400; East Bay I, 993 F.3d at 670–71. Because the Rule does just that, it is inconsistent with § 1158(a). 22 GARCIA MORALES V. BLANCHE Congress codified the right to seek asylum when it enacted the Refugee Act of 1980. In doing so, Congress sought to “bring United States refugee law into conformance” with international treaty commitments, INS v. Cardoza-Fonseca, 480 U.S. 421, 427, 436–37 (1987), and to “establish[] a more uniform basis for the provision of assistance to refugees,” East Bay I, 993 F.3d at 674 (quoting Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980)). Recognizing that “refugees fleeing imminent persecution do not have the luxury of choosing their escape route into the United States,” id. at 658, Congress provided that noncitizens could seek asylum “irrespective of [their] status,” and irrespective of whether they arrived “at a land border or port of entry,” Pub. L. No. 96-212, § 208(a), 94 Stat. 102, 105 (1980). Congress thus “mandated equity in its treatment of all refugees, however they arrived.” East Bay I, 993 F.3d at 658 (citing 125 Cong. Rec. 35813–14 (1979) (statement of Rep. Holtzman)). To “preserve[] that principle,” id. at 658, when Congress amended the asylum statute in 1996, it specified that any noncitizen who arrives in the U.S., “whether or not at a designated port of arrival,” may seek asylum, Pub. L. No. 104-208, Div. C, Title VI, § 604(a), 110 Stat. 3009-690 (1996). 6 Today, the asylum statute provides that: Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought 6 For a more detailed discussion of the history of the asylum statute, refer to East Bay I, 993 F.3d at 672–75, and East Bay II, 994 F.3d at 969–72.  GARCIA MORALES V. BLANCHE 23 to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title. 8 U.S.C. § 1158(a). We previously held that this guarantee—that noncitizens may apply for asylum, irrespective of how they entered the country—means that the government cannot restrict asylum eligibility based on a noncitizen’s manner of entry. East Bay I, 993 F.3d at 670. We reached this conclusion by examining the text, context, and structure of § 1158. The dissent principally reprises the same arguments we rejected in East Bay I. In the dissent’s view, because “section 1158 splits asylum applications (§ 1158(a)) and eligibility (§ 1158(b)) into two different subsections,” and the Rule does not prevent migrants from submitting futile asylum applications, it is “consistent” with § 1158(a)’s requirement that noncitizens be permitted to “apply for asylum.” Id. We previously rejected this unconvincing reading of § 1158(a)(1). Once again, we decline to merely pay lip service to the text of § 1158(a)(1). “To say that one may apply for something that one has no right to receive is to render the right to apply a dead letter.” Id. at 670–671 (quoting E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 772 (9th Cir. 2018)). While the Rule “facially conditions only who is eligible to receive asylum,” it is “the equivalent of a bar to applying for asylum in contravention of a statute that forbids the Attorney General from laying such a bar on these grounds.” E.