source: Caselaw Access Project

author: FISHER, Circuit Judge:

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text:
    Rony Estuardo PEREZ-GUZMAN, AKA Ronnie Perez-Guzman, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 13-70579
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 4, 2016 Pasadena, California
    Filed August 31, 2016

      Eric M. Fraser (argued), Osborn Male-don, P.A., Phoenix, Arizona, for Petitioner.
    Tim Ramnitz (argued); Anthony C. Payne, Senior Litigation Counsel; Joyce R. Branda, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
    Keren Zwick (argued), National Immigrant Justice Center, Chicago, Illinois; Stephen W. Manning, Immigrant Law Group P.C., Portland, Oregon; Robin L. Goldfaden, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, San Francisco, California; for Amicus Curiae American Immigration Lawyers Association, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and National Immigrant Justice Center.
    Before: RAYMOND C. FISHER, MILAN D. SMITH, Jr., and JACQUELINE H. NGUYEN, Circuit Judges.
   OPINION

FISHER, Circuit Judge:

Rony Estuardo Perez-Guzman (Perez), a native and citizen of Guatemala, entered the United States without inspection for the first time in 2011. The Department of Homeland Security (DHS) apprehended and removed him after expedited removal proceedings. Perez reentered the United States in 2012 and was again apprehended by DHS, which reinstated the earlier removal order. After an asylum officer found Perez had established a reasonable fear of being tortured if removed to Guatemala, he was referred to an Immigration Judge (IJ) for consideration of his applications for withholding of removal and protection under the Convention Against Torture (CAT). Because Perez was subject to a reinstated removal order, the IJ declined to consider his application for asylum. The IJ denied on the merits his requests for withholding of removal and protection under CAT, and the Board of Immigration Appeals (BIA) affirmed.

The parties agree that we must remand to the BIA on Perez’s claims for withholding of removal and protection under CAT in light of intervening circuit precedent. The issue we consider here is whether an individual subject to a reinstated removal order is eligible to apply for asylum under the Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). We hold Congress has not clearly expressed whether 8 U.S.C. § 1231(a)(5),. enacted by IIRIRA, prevents an individual subject to a reinstated removal order from applying for asylum under 8 U.S.C. § 1158. We conclude, however, that the Attorney General’s regulation preventing Perez from applying for asylum under these circumstances is a reasonable interpretation of the statutory scheme, and is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Accordingly, we remand to the BIA only for reconsideration of Perez’s withholding and CAT claims.

I. Background

A. Factual Background

Perez alleges that three incidents in his home county of Guatemala make him eligible for asylum, withholding of removal and CAT protection. First, Perez was struck by a stray bullet fired by members of a gang extorting a local businessman and gave a statement to police about the gang members involved in the shooting. After they were released from jail, the gang members visited Perez’s house while he was away.

Second, Perez discovered his name appeared on a “death squad kill list” compiled by a group of police officers and soldiers who engaged in extrajudical law enforcement by executing suspected gang members, guerrillas and other criminals. Other individuals on the list were later killed, including Perez’s cousin. Shortly after his cousin’s murder, Perez fled his hometown.

Finally, Perez was abducted by individuals purporting to be Guatemalan police officers. The kidnappers blindfolded Perez, tied him to a chair and beat him before realizing they had abducted the wrong man. The kidnappers discussed killing Perez, but released him with the threat that they would kill him if he reported the attack.

Perez left Guatemala and entered the United States for the first time in June 2011, but was stopped by the Border Patrol. He later testified before the IJ that the Border Patrol agents never asked him whether he feared returning to Guatemala, but only “came out with a paper” for him to sign certifying that he had entered the country illegally. Records of a brief interview conducted during the expedited removal process, however, note Perez answered in the negative when asked whether he feared returning to Guatemala. He was removed to Guatemala in July 2011.

Perez reentered the United States and was apprehended a second time in January 2012. DHS reinstated his earlier removal order. Because Perez expressed a fear of returning to Guatemala, he was referred to an asylum officer, who found his fear pi persecution or torture was reasonable arid referred him to an IJ for further proceedings.

Before the IJ, Perez sought asylum, withholding of removal and protection under CAT. The IJ, however, concluded Perez was ineligible for asylum because he had previously been removed and DHS had reinstated his earlier removal order. The IJ also denied Perez’s applications for withholding of removal and CAT protection, concluding he had not established a likelihood that he would either be persecuted on a protected ground or tortured with government consent or acquiescence if returned to Guatemala. The BIA affirmed the denial of withholding of removal and CAT protection on the merits. It explained it would not reach the merits of Perez’s asylum claim and that “[b]ecause the Department of Homeland Security ... reinstated a prior order of removal in this case, the Immigration Judge’s consideration was limited to the applicant’s request for withholding of removal and CAT protection. See 8 C.F.R. § 1208.31(e).”

B. Legal Background

Perez’s claim turns on the interplay between two provisions of the INA — 8 U.S.C. § 1158, the asylum statute, and 8 U.S.C. § 1231(a)(5), the reinstatement bar.

The Refugee Act of 1980 directed the Attorney General to establish procedures for granting asylum and enacted the initial version of § 1158, which afforded any alien the right to apply for asylum irrespective of immigration status. See Refugee Act of 1980, Pub. L. No. 96-212, § 208, 94 Stat. 102 (codified as amended at 8 U.S.C. § 1158). Although Congress later amended the statute to prevent individuals convicted of aggravated felonies from receiving asylum, see Immigration Act of 1990, Pub. L. No. 101-649, § 515, 104 Stat. 4978, the law governing asylum applications remained largely unchanged until the enactment of IIRIRA, Pub. L. No. 104-208, Div. C, 110 'Stat. 3009 (1996).

In its post-IIRIRA form, § 1158(a)(1) retains its original scope, stating that “[a]ny alien who is physically present in the United States ... irrespective of such alien’s status, may apply for asylum in accordance with this section.” § 1158(a)(1) (emphasis added). A few statutory exceptions qualify this broad eligibility, barring asylum applications from individuals who can be resettled in another country, see § 1158(a)(2)(A), failed to timely apply, see § 1158(a)(2)(B), or previously were denied asylum, see § 1158(a)(2)(C). Section 1158(a)(2)(D) creates an exception to the exceptions in subsections (a)(2)(B) and (C), stating in relevant part that an individual may make a second application for asylum notwithstanding a previous denial if he shows changed circumstances affecting his eligibility for asylum. See § 1158(a)(2)(D).

IIRIRA also revised the effect of reinstatement, the summary removal process whereby the government reinstates and executes an individual’s previous removal order rather than initiating a new removal proceeding against him. Before IIRIRA, only a subset of individuals who illegally reentered the country were subject to reinstatement of their earlier removal orders; .the rest were placed in ordinary removal proceedings, even on subsequent reentries. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33-35, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). In addition, individuals in the “limited class of illegal reen-trants” subject to reinstatement could still “seek some varieties of discretionary relief’ from their reinstated removal order. Id. at 34, 126 S.Ct. 2422. With IIRIRA, however, Congress replaced the old reinstatement provisions with “one that toed a harder line,” and “[ujnlike its predecessor, ... applie[d] to all illegal reentrants, explicitly insulate[d] the [reinstated] removal orders from review, and generally foreclose[d] discretionary relief from the terms of the reinstated order.” Id. at 34-35, 126 S.Ct. 2422 (noting the availability of withholding of removal). This reinstatement bar, codified at § 1231(a)(5), states

[ i]f the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from' its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.

§ 1231(a)(5) (emphasis added). “[T]his chapter” refers to chapter 12 of title 8 of the U.S. Code, which contains both the asylum statute and reinstatement bar.

Consistent with this section, the Attorney General promulgated 8 C.F.R. § 1208.31(e), which states in relevant part that “[i]f an asylum officer determines that an alien [subject to a reinstated removal order] has a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a ... [r]eferral to [an] Immigration Judge, for full consideration of the request for withholding of removal only.” 8 C.F.R. § 1208.31(e) (emphasis added). The notice published in the Federal Register stated in its summary that “[f]or persons subject to reinstatement, ... the rule establishes a screening mechanism” similar to the one used in expedited removal proceedings. See Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8478 (Feb. 19, 1999). The notice went on to explain that the new process was intended “to rapidly identify and assess” claims for withholding of removal and CAT protection made by individuals subject to reinstated removal orders and other forms of expedited removal to “allow for the fair and expeditious resolution of such claims without unduly disrupting the streamlined removal processes applicable to these aliens.” Id. at 8479; see also id. at 8485 (discussing 8 C.F.R. § 1208.31 specifically). The notice further stated the agency’s conclusion that such individuals, including “aliens subject to reinstatement of a previous removal order under [§ 1231(a)(5) ],” were “ineligible for asylum” but “may be entitled to withholding of removal” or CAT protection. Id. at 8485. The notice identified a number of statutes giving the agency authority to promulgate regulations to govern asylum and withholding procedures, including § 1158. See id. at 8487 (listing the authorities for 8 C.F.R. Part 208 generally).

II. Discussion

As noted, the parties agree remand is appropriate on Perez’s withholding of removal and CAT claims in light of intervening circuit precedent. The only disputed question is whether Perez is entitled to a remand on his asylum claim as well. We conclude he is not.

A. Exhaustion

At the outset, we reject the government’s contention that Perez failed to exhaust his argument for asylum eligibility before the BIA. Although we generally lack jurisdiction to review a final agency order unless administrative remedies have been exhausted, see Alvarado v. Holder, 759 F.3d 1121, 1127 (9th Cir. 2014), exhaustion is not required where it would be futile to raise a particular issue before the agency. Here, the BIA rejected Perez’s asylum claim under 8 C.F.R. § 1208.31(e), which bars individuals in reinstatement proceedings from applying for asylum. Because the BIA had no authority to disregard this regulation, exhaustion would have been futile. See Coyt v. Holder, 593 F.3d 902, 905 (9th Cir. 2010) (“Because the BIA has no authority to declare a regulation invalid, ‘the exhaustion doctrine does not bar review of a question concerning the validity of an INS regulation because of a conflict with a statute.’ ” (quoting Espinoza-Gutierrez v. Smith, 94 F.3d 1270, 1273 (9th Cir. 1996))); Espinoza-Gutierrez, 94 F.3d at 1273 (observing that an argument contesting the validity of an agency’s own regulations will “necessarily ... fall[ ] on deaf ears” because the BIA “simply has no authority to invalidate a regulation that it is bound to follow”).

B. Asylum

Perez argues the asylum statute’s language permitting “[a]ny alien” to apply for asylum “irrespective of such alien’s status” unambiguously permits him to apply for asylum notwithstanding his reinstated removal order. § 1158(a)(1). The government, in response, argues the reinstatement bar’s statement that an individual subject to a reinstated removal order “is not eligible and may not apply for any relief under this chapter” unambiguously makes Perez ineligible to apply for asylum, a form of relief arising under the same chapter. § 1231(a)(5). The question is whether § 1158’s permission to apply for asylum or § 1231(a)(5)’s denial of any relief falling within the same chapter governs the class of individuals who, like Perez, are subject to reinstated removal orders.

To answer this question of statutory interpretation, we follow the framework laid out in Chevron. “Under the first step, we determine ‘whether Congress has directly spoken to the precise question at issue.’ ” Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1054 (9th Cir. 2010) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). If the intent of Congress is clear, our inquiry ends and we give effect to Congress’ unambiguously expressed intent. See id. If, on the other hand, Congress has not spoken to a particular issue or the statute is ambiguous, we may consider the responsible agency’s interpretation of the statutory scheme. “[I]f the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).

In addressing this question, we are not writing on a clean slate. Three other circuits have already considered the interplay between § 1158 and § 1231. Each has concluded that individuals subject to reinstated removal orders may not apply for asylum relief. See Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016); Ramirez-Mejia v. Lynch, 794 F.3d 485, 491 (5th Cir. 2015) (relying on § 1231(a)(5)’s plain language, as well as relevant regulations and case law); Herrera-Molina v. Holder, 597 F.3d 128, 138-39 (2d Cir. 2010) (discussing § 1231(a)(5)’s text as well as relevant circuit precedent and regulations). Although we find these opinions persuasive in some respects, those circuits did not discuss § 1158(a)(1), but mentioned it only in passing, see Ramirez-Mejia, 794 F.3d at 490, or not at all, see Jimenez-Morales, 821 F.3d at 1310; Herrerar-Molina, 597 F.3d at 138-39. Thus, although we reach the same conclusion as these other courts, we do so on somewhat different reasoning.

1. Chevron Step One

At step one of Chevron, we conclude Congress has not directly spoken to the interplay of § 1158(a)(1) and § 1231(a)(5). On the contrary, § 1158(a)(1) and § 1231(a)(5) are in apparent conflict. Section 1158 broadly grants “any alien” the opportunity to seek asylum, “regardless of such alien’s status,” subject only to a few exceptions not applicable here. Section 1231, by contrast, expressly bars aliens subject to reinstated removal orders from any relief under chapter 12, the chapter that includes asylum. In attempting to resolve this apparent conflict, we begin with the language of the statute, reading it in context and giving undefined terms their ordinary meanings. See CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277, 283-84, 131 S.Ct. 1101, 179 L.Ed.2d 37 (2011); Synagogue v. United States, 482 F.3d 1058, 1061-62 (9th Cir. 2007). “Our goal is to understand the statute ‘as a symmetrical and coherent regulatory scheme’ and to ‘fit, if possible, all parts into a harmonious whole.’ ” Gila River Indian Cmty. v. United States, 729 F.3d 1139, 1145 (9th Cir. 2013) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000)).

Each party argues the plain language of § 1158 and § 1231(a)(5) can be harmonized by interpreting one section as establishing an absolute rule to which the other section must yield. Perez contends § 1231(a)(5) does not really bar “any relief’ under chapter 12, whereas the government says § 1158(a)(1) does not really permit “any alien” to apply for asylum. “Read naturally, the word ‘any’ has an expansive meaning.” United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). But within a particular statute, “[ajmbiguity is a creature ... of statutory context.” Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); see also Dada v. Mukasey, 554 U.S. 1, 16, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008) (“In reading a statute we must not ‘look merely to a particular clause,’ but consider ‘in connection with it the whole statute.’ ” (quoting Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974))).

We agree with the parties that although both subsections use absolute language, each is qualified in certain respects when read in context. The text of § 1158(a)(1) states that “[a]ny” alien may apply for asylum “in accordance with this section,” regardless of immigration status. § 1158(a)(1). The rest of § 1158, however, undercuts the breadth of that guarantee by including a series of exceptions preventing certain aliens from applying under specific circumstances. See § 1158(a)(2)(A)-(C). Section 1231(a)(5)’s text is perhaps stronger in stating that the reinstatement of a prior removal order precludes “any relief under this chapter.” § 1231(a)(5). But our well-settled interpretation of § 1231(a)(5) recognizes that, notwithstanding the prohibition on “any relief,” withholding of removal and CAT protection are available to individuals in reinstatement proceedings. See Ixcot v. Holder, 646 F.3d 1202, 1207 (9th Cir. 2011) (“Notwithstanding the seemingly absolute bar ... aliens subject to [§ 1231(a)(5) ] ‘may seek withholding of removal’.... ” (quoting Fernandez-Vargas, 548 U.S. at 35 n.4, 126 S.Ct. 2422)); Ortiz-Alfaro v. Holder, 694 F.3d 955, 956 n.1 (9th Cir. 2012) (assuming CAT “constrains the Attorney General from removing aliens ... notwithstanding” the language of § 1231(a)(5)). The Attorney General’s regulations agree. See 8 C.F.R. § 1208.31(e) (allowing withholding of removal); 8 C.F.R. § 1208.16(c)(4) (allowing CAT protection); 8 C.F.R. § 214.14(c)(1)(h) (allowing U Visas).

The relevant question, however, is not simply whether the two provisions are absolute, but how Congress intended to harmonize them. If one subsection’s text were • clearly intended to take precedence over the other, our inquiry would be at an end.' That both provisions are qualified in certain respects moves us no closer to a clear answer. Neither subsection gives an indication of how Congress intended to resolve a conflict between the two. We therefore turn to the other “traditional tools of statutory construction” in search of an answer. See Chevron, 467 U.S. at 843 n.9, 104 S.Ct. 2778.

Both Perez and the government invoke the canon of generalia spe-cialibus non derogant — the “principle that the specific governs the general” — to advance their preferred interpretation of the statutory scheme. See Nitro-Lift Techs., LLC v. Howard, - U.S. -, 133 S.Ct. 500, 504, 184 L.Ed.2d 328 (2012). The canon provides that a “narrow, precise, and specific” statutory provision is not overridden by another provision “covering a more generalized spectrum” of issues. Radzanower v. Touche Ross & Co., 426 U.S. 148, 153-54, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). When two statutes come into conflict, courts assume Congress intended specific provisions to prevail over more general ones, see Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-29, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), the assumption being that the more specific of two conflicting provisions “comes closer to addressing the very problem posed by the case at hand and is thus more deserving of credence,” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 183 (2012).

As Scalia and Garner acknowledge, however, it is “[sjometimes ... difficult to determine whether a provision is a general or a specific one.” Id. at 187. Here, the difficulty is that each subsection is specific in certain respects and general in others. Section 1158(a)(1) is more specific in that it speaks narrowly to the rules governing asylum applications. Conversely, § 1231(a)(5) is more specific in that it speaks directly to the particular subset of individuals, like Perez, who are subject to reinstated removal orders. Although the government’s position may have a slight edge, both parties’ arguments on this point are sensible. We conclude the general-specific canon does not help to dearly discern Congress’s intent as to which section should take precedence here.

Nor does the legislative history of § 1158 and § 1231(a)(5) resolve this ambiguity. IIRIRA’s amendments to the INA show Congress intended to add more detail to the existing asylum scheme while simultaneously expanding the scope and consequences of the reinstatement of an earlier removal order. Because neither party has identified any legislative materials speaking directly to the availability of asylum in reinstatement proceedings, however, we conclude the legislative history “is silent on the precise issue before us.” Chevron, 467 U.S. at 862, 104 S.Ct. 2778.

Perez and amici argue IIRIRA broadened the scope of § 1158 when it amended the statute slightly to allow “[a]ny alien,” rather than “an alien,” to apply for asylum. But the rest of § 1158(a)(l)’s text reenacted the existing language permitting the alien, “regardless of such alien’s status, to apply for asylum.” Compare 8 U.S.C. § 1158(a) (1980) (permitting “an alien physically present in the United States, ..., irrespective of such alien’s status, to apply for asylum”), with id. § 1158(a)(1) (1996) (providing that “[a]ny alien who is physically present in the United States ..., irrespective of such alien’s status, may apply for asylum”). We are reluctant to assume Congress’ intent is clear from this change alone, and must read this amendment in concert with the simultaneous enactment of § 1231(a)(5), which was a completely new addition in IIRIRA. In adopting both changes simultaneously, Congress effectively adopted “a clear limitation in one section”— § 1231(a)(5) — “without amending another section” dealing with the same subject matter. See Ramirez-Mejia, 794 F.3d at 490. This might suggest Congress assumed § 1231(a)(5)’s use of the phrase “any relief under this chapter” would most naturally be read as precluding asylum applications. See McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (“It is presumable that Congress legislates with knowledge of our basic rules of statutory construction. ...”).

In sum, when read in context and compared with each other, § 1158(a)(1) and § 1231(a)(5) reveal no clear congressional intent on how to resolve a claim, like Perez’s, which places the two sections in conflict. Both provisions appear to establish broad and conflicting rules. On closer examination, however, it is apparent that both provisions are qualified in certain respects — § 1158 by various textual exceptions, and § 1231(a)(5) by the government’s practice and our precedent. Furthermore, we cannot say the general-specific canon clearly resolves the ambiguity in the statutory scheme. We therefore conclude Congress has not spoken directly to whether individuals subject to reinstated removal orders may apply for asylum. We accordingly proceed to Chevron’s second step, where we ask whether the agency’s interpretation of an ambiguous statute is a permissible construction of the statutory scheme. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778.

2. Chevron Step Two

Before we address the substance of the agency’s interpretation, we must briefly discuss Perez and amici’s argument that 8 C.F.R. § 1208.31(e) should not be accorded Chevron deference because the agency failed to adequately explain its reasoning when it promulgated the regulation in 1999. We do not reach the merits of this argument because it is untimely.

a. Timeliness

Procedural challenges to agency rules under the Administrative Procedure Act are subject to the general six-year limitations period in the U.S. Code. See Wind River Mining Corp. v. United States, 946 F.2d 710, 713-14 (9th Cir. 1991) (citing 28 U.S.C. § 2401(a)). Under Wind River, challenges to a “mere procedural violation in the adoption of a regulation or other agency action” must be brought within six years of the agency rulemaking, whereas challenges to “the substance of an agency’s decision as exceeding constitutional or statutory authority” may be brought any time “within six years of the agency’s application of the disputed decision to the challenger.” Id. at 715-16. Whether Perez’s challenges are timely therefore depends on whether they are procedural or substantive.

Perez’s central claim is that the Attorney General’s refusal to consider his asylum application is based on an unreasonable interpretation of § 1158 and § 1231(a)(5). The parties agree this is a substantive challenge. Because it was brought within six years of the BIA’s refusal to consider Perez’s asylum application, it is timely. See Cal. Sea Urchin Comm’n v. Bean, 828 F.3d 1046, 1050 (9th Cir.2016) (holding timely a challenge to “the present application of an earlier rule that allegedly contradicted the agency’s statutory authority”).

Perez and amici also argue that 8 C.F.R. § 1208.31 merits no deference at Chevron step two because the agency allegedly failed to explain its interpretation of § 1158 and § 1231 when it originally promulgated the regulation. This portion of their challenge, in other words, alleges “a procedural violation in the adoption of a regulation.” Wind River, 946 F.2d at 714. We conclude that although Perez’s arguments about the substance of 8 C.F.R. § 1208.31’s interpretation are timely, his arguments about the alleged procedural errors in its promulgation are not. We therefore decline to consider them. See also Sai Kwan Wong v. Doar, 571 F.3d 247, 262-63 (2d Cir. 2009) (collecting cases).

The Supreme Court’s recent decision in Encino Motorcars, LLC v. Navarro, - U.S. -, 136 S.Ct. 2117, 195 L.Ed.2d 382 (2016), supports this approach. There, the Court held an agency regulation that represented a change in longstanding agency position was not entitled to Chevron deference because the agency had failed to adequately explain its change in position. The Court explained that a “basic procedural requirement[ ] of administrative rulemak-ing is that an agency must give adequate reasons for its decisions.” Id. at 2125 (emphasis added); see also id. (“Chevron deference is not warranted where the regulation is ‘procedurally defective’ — that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.”). “Of course,” it noted, “a party might be foreclosed in some instances from challenging the procedures used to promulgate a given rule.” Id. (citing JEM Broad. Co. v. FCC, 22 F.3d 320, 324-26 (D.C. Cir. 1994)).

JEM Broadcasting arose in a similar procedural posture to this case. The FCC had earlier promulgated a rule preventing review of certain license applications that included inaccurate or incomplete information. See JEM Broad., 22 F.3d at 322-23. The FCC subsequently declined to review JEM’s defective application by citing that rule, and JEM sought to “attack ... the procedural genesis of the [rule] in the context of an enforcement action,” by arguing the rule had been improperly promulgated without notice and comment years earlier. Id. at 324. The D.C. Circuit held JEM’s challenge was untimely:

JEM does not claim ... that the “hard look” rules are unconstitutional, that they exceed the scope of the FCC’s substantive authority, or ... that the rules are premised on an erroneous interpretation of a statutory term....
[Challenges to the procedural lineage of agency regulations, whether raised by direct appeal ... or as a defense to an agency enforcement proceeding, will not be entertained outside the ... period provided by statute.

Id. at 325 (quoting Mountain States Tel. & Tel. Co. v. FCC, 939 F.2d 1035, 1040 (D.C. Cir. 1991)). Although it recognized that “some parties — such as those not yet in existence when a rule is promulgated”— would “never ... have the opportunity to challenge the procedural lineage of rules that are applied to their detriment,” the court concluded “the law countenances this result because of the value of repose.” Id. at 326. We have reached the same conclusion. See Wind River, 946 F.2d at 715 (“The government’s interest in finality outweighs a late-comer’s desire to protest the agency’s action as a matter of policy or procedure.”); see also Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1129 (9th Cir. 1999) (noting a limitations period on procedural challenges is necessary “so that regulations are not indefinitely subject to challenge in court”).

In the absence of binding contrary authority, we apply the approach required by Wind River and approved by the Supreme Court in Encino Motorcars to conclude Perez’s procedural challenge to 8 C.F.R. § 1208.31(e) falls outside the limitations period. We therefore move on to determine whether 8 C.F.R. § 1208.31(e) is a permissible construction of the statute under Chevron step two.

b. The Chevron Step Two Inquiry

At step two of Chevron, we must “accept the agency’s construction of the statute” so long as that reading is reasonable, “even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Brand X Internet Servs., 545 U.S. at 980, 125 S.Ct. 2688. Deference “is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations.’ ” INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)). With these principles in mind, we consider whether 8 C.F.R. § 1208.31(e), which prevents individuals subject to reinstated removal orders from applying for asylum but permits them to seek withholding of removal, is a reasonable interpretation of § 1158 and § 1231. We conclude it is.

First, the regulation is consistent with a reasonable judgment that § 1231(a)(5) is a more specific provision than § 1158, even if not conclusively so, and is therefore “more deserving of credence” when the two provisions conflict. Scalia & Gardner, supra, at 183. As discussed, both parties advance reasonable arguments for why the canon favors their interpretations of the statutory scheme.. At step two, however, “we are not deciding between two plausible statutory constructions; we are evaluating an agency’s interpretation of a statute under Chevron.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 492 (9th Cir. 2007) (en banc). It was not unreasonable for the agency to conclude § 1231(a)(5)’s prohibition on “any relief under this chapter” forecloses individuals from applying for asylum relief. Indeed, the other circuits to consider this issue have concluded it does. See Jimenez-Morales, 821 F.3d at 1310; Ramirez-Mejia, 794 F.3d at 490; Herrera-Molina, 597 F.3d at 138-39.

Second, the agency’s approach is consistent with Congress’ intent in IIRI-RA that the reinstatement of a previous removal order would cut off certain avenues for relief from removal. Reinstatement was designed to be “a different and far more summary procedure” than regular removal. Morales-Izquierdo, 486 F.3d at 491. To that end, Congress intended § 1231(a)(5) to subject more individuals to reinstatement proceedings and to “limit[ ] the possible relief from a removal order available to them.” Fernandez-Vargas, 548 U.S. at 33, 126 S.Ct. 2422; see also Ramirez-Mejia, 794 F.3d at 490. Forbidding asylum applications from individuals in reinstatement proceedings, although harsh, is in keeping with this approach. See Barnhart v. Walton, 535 U.S. 212, 219, 122 S.Ct. 1265, 152 L.Ed.2d 330 (2002) (upholding an agency construction that made “considerable sense in terms of the statute’s basic objectives”). Furthermore, the agency’s interpretation is a reasonable construction of the legislative history we discussed above, which is at least consistent with the view that, in enacting § 1158(a)(1) and § 1231(a)(5) together, Congress assumed the phrase “any relief under this chapter” would include the asylum provision in the statute. See Chevron, 467 U.S. at 862, 104 S.Ct. 2778 (noting that when legislative history “as a whole is silent” on the “precise issue” before the court, it may nonetheless be “consistent” with a particular interpretation of the statute). Had Congress intended to include a carve-out for asylum relief, it could have done so explicitly when it wrote § 1231(a)(5) or revised § 1158.

There are nonetheless some weaknesses in the agency’s approach, but they are not fatal to its interpretation. We have already noted that, notwithstanding § 1231(a)(5)’s bar on “any relief’ under chapter 12, the Attorney General has interpreted that section to permit individuals to seek withholding of removal, CAT protection and U Visas — all forms of relief that, like asylum, arise under chapter 12. See 8 C.F.R. §§ 214.14(c)(1)(h), 1208.16(c)(4), 1208.31(e). The government suggests this policy draws a reasonable line between discretionary and nondiscretionary relief, and the Supreme Court acknowledged “the practical import of th[at] distinction,” albeit in a slightly different context. Cf. INS v. Cardoza-Fonseca, 480 U.S. 421, 444, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (holding it was “not ... at all anomalous” that asylum applicants and applicants for withholding were governed by different standards of proof and stating there was “no basis for the ... assertion that the discretionary/mandatory distinction has no practical significance”).

This explanation, however, fails to account for why, under the Attorney General’s regulations, individuals in reinstatement are permitted to apply for U Visas— a form of discretionary relief — but not for asylum. It may be relevant that U Visas were created in 2000, four years after IIR-IRA implemented the revised asylum statute and the reinstatement bar. See Victims of Trafficking and Violence Prevention Act of 2000, Pub. L. No. 106-386, § 1513, 114 Stat. 1464. In concluding that the Attorney General’s approach in 8 C.F.R. § 1208.31(e) is reasonable under Chevron, however, we note the Supreme Court apparently found nothing inconsistent between the “absolute terms” by which § 1231(a)(5) bars relief and the government’s decision to make certain forms of relief from removal available in reinstatement proceedings. See Fernandez-Vargas, 548 U.S. at 35 n.4, 126 S.Ct. 2422 (“Notwithstanding the absolute terms in which the bar on relief is stated, even an alien subject to [§ 1231(a)(5) ] may seek withholding of removal under [§ 1231(b)(3) ] ..., or under 8 C.F.R. §§ 241.8(e) and. 208.31.... ” (emphasis added)); see also Jimenez-Morales, 821 F.3d at 1310 (citing Fernandez-Vargas, 548 U.S. at 35 n.4, 126 S.Ct. 2422); Herrera-Molina, 597 F.3d at 139 n.8 (same). Although the availability of asylum is an important component of our immigration law, it is not unreasonable to conclude Congress intended to bar this form of relief to persons in reinstated removal proceedings while preserving relief for individuals able to meet the higher standards for withholding of removal and CAT relief. See Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016) (denying rehearing en banc) (“Even if withholding of removal and CAT protection are slightly less potent remedies than asylum, the difference may well be consistent with Congress’s intent to penalize illegal reentry. We need not justify the difference, but we note possible reasons for it.”).

In addition, although the Attorney General’s interpretation makes sense as applied to an individual who has already had an opportunity to seek asylum upon his initial entry to the United States, it does not account for individuals in reinstatement proceedings who may have compelling claims based on new circumstances arising subsequent to their previous removal proceedings. The Attorney General’s interpretation of § 1231(a)(5) may have dire humanitarian consequences for individuals in reinstatement who seek relief from removal, either because they were previously denied asylum and are now subject to changed circumstances or because they were improperly denied an opportunity to seek asylum during their earlier removal from the United States. However, the government has discretion to forgo reinstatement and instead place an individual in ordinary removal proceedings. See Villa-Anguiano v. Holder, 727 F.3d 873, 878 (9th Cir. 2013). Once in ordinary proceedings, the individual can raise an asylum application without implicating § 1231(a)(5)’s bar. The government has followed this procedure before, see, e.g., Maldonado Lopez v. Holder, No. 12-72800 (9th Cir. dismissed Feb. 4, 2014), and we assume it will continue to exercise that discretion in appropriate cases, such as those presenting strong humanitarian concerns. To the extent this consideration “really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress,” it cannot invalidate the agency’s interpretation at Chevron’s second step. See Chevron, 467 U.S. at 866, 104 S.Ct. 2778.

In sum, despité our reservations, we are not persuaded that 8 C.F.R. § 1208.31(e)’s interpretation of § 1231(a)(5) and § 1158(a)(1) is an unreasonable construction of the statute. See Chevron, 467 U.S. at 843-44, 104 S.Ct. 2778. It is consistent with the broad language of § 1231(a)(5), with Congress’ intent to make reinstatement an expedited process for removing individuals who reenter the United States and with the overall legislative history of both provisions.

Perez’s remaining arguments to the contrary are not persuasive. First, Perez and amici argue the Attorney General’s interpretation of § 1231(a)(5) is contrary to the structure of § 1158 itself. They focus in particular on § 1158(a)(2)(D), which provides that an applicant’s second asylum application “may be considered” if he shows changed circumstances materially affecting his eligibility for asylum. Perez and amici argue that if § 1231(a)(5) categorically forbids an individual in reinstatement from applying for asylum, § 1158(a)(2)(D) is superfluous. This argument incorrectly assumes that any individual to whom § 1158(a)(2)(D) applies will necessarily be subject to a reinstated removal order. Not so. The reinstatement of a prior removal order is neither “automatic” nor “obligatory,” and the Attorney General has discretion not to reinstate an individual’s earlier removal order and instead place him in ordinary removal proceedings. See Villa-Anguiano, 727 F.3d at 878 (quoting Alcala v. Holder, 563 F.3d 1009, 1013 (9th Cir. 2009)). If the Attorney General elects to place an individual who previously applied for and was denied asylum into ordinary removal proceedings upon his reentry to the United States, § 1158(a)(2)(D) is not superfluous. On the contrary, it affirmatively authorizes a second asylum claim in light of his changed circumstances — something that would ordinarily be precluded by § 1158(a)(2)(C).

Second, Perez and amici argue the asylum statute is a “closed universe” unaffected by other portions of the INA. In other words, they suggest § 1158’s enumerated exceptions for eligibility to apply for asylum are exhaustive. Amici note the asylum scheme makes no reference to § 1231(a)(5), and suggest § 1158 was in-. tended to govern asylum applications independent of the rest of the INA. The Attorney General, however, is not unreasonable for adopting a contrary view. None of the various provisions for relief under the INA explicitly refers to § 1231(a)(5), but § 1231(a)(5) specifies “any relief under this chapter.” No explicit cross-reference to every affected section is necessary for us to conclude that “any relief under this chapter” can reasonably be read to preclude applications for asylum, a form of relief arising under chapter 12.

For the foregoing reasons, we hold that 8 C.F.R. § 1208.31(e) is a reasonable interpretation of the interplay between § 1158 and § 1231, and we must therefore defer to it under Chevron. In keeping with that regulation, Perez is not eligible to apply for asylum under § 1158 as long as he is subject to a reinstated removal order.

C. Withholding of Removal and CAT Relief

After the BIA concluded Perez had not shown past persecution on account of his membership in a particular social group, we held witnesses who testify against gang members may constitute a “particular social group.” See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092 (9th Cir. 2013) (en banc). In addition, after the BIA rejected Perez’s CAT claim because there was no evidence the Guatemalan government sanctioned his abuse by police, we held that local officials’ acquiescence in torture is sufficient to entitle an applicant to CAT relief, even if the national government did not acquiesce in the treatment. See Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013). In light of these intervening authorities, the parties agree we should remand on Perez’s claims for withholding of removal and CAT relief.

III. Conclusion

We remand for the agency to reconsider Perez’s applications for withholding of removal and CAT protection in light of Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), and Madrigal v. Holder, 716 F.3d 499 (9th Cir. 2013). We affirm the BIA’s conclusion that it could not consider Perez’s application for asylum relief in light of his reinstated removal order.

PETITION GRANTED .IN PART AND DENIED IN PART; REMANDED TO THE BIA.

Each party shall bear its own costs on appeal.

      . Unless otherwise noted, all citations are to title 8 of the United States Code.

      . The regulation was originally promulgated as 8 C.F.R. § 208.31(e), but the administrative regulations governing immigration proceedings were recodified in 2003 to reflect the transfer of the Immigration and Nationality Service's functions to DHS. See Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824 (Feb. 28, 2003). For convenience, we refer to the regulation as 8 C.F.R. § 1208.31(e) throughout this opinion.

      . A separate regulation permits an individual subject to a reinstated removal order to seek CAT protection as well. See 8 C.F.R. § 1208.16(c)(4).

      . The government suggested for the first time at oral argument that the two sections do not actually conflict if “relief” is understood as a term of art under the INA. It posits that, in barring any "relief,” § 1231(a)(5) does not prevent individuals from seeking nondiscre-tionary forms of "protection” like withholding of removal and protection under CAT. Although one other circuit found this purported distinction persuasive, see Ramirez-Mejia, 794 F.3d at 489, we treat this argument as waived because any textual distinction between the two terms was raised for the first time at oral argument, see Harger v. Dep’t of Labor, 569 F.3d 898, 904 n.9 (9th Cir. 2009).

      . Perez also cites the “longstanding principle of construing any lingering ambiguities in [removal] statutes in favor of the alien.” INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Like the rule of lenity, this rule is a tiebreaker in the case of insoluble — or "lingering” — ambiguity. Id.) see Lagandaon v. Ashcroft, 383 F.3d 983, 993 (9th Cir. 2004). As we have held in the criminal context, however, "[t]he rule of lenity ... does not prevent an agency from resolving statutory ambiguity through a valid regulation.” Pacheco-Camacho v. Hood, 272 F.3d 1266, 1271-72 (9th Cir. 2001) (citing
        Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704 n.18, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995)); see also Mujahid v. Daniels, 413 F.3d 991, 998-99 (9th Cir. 2005) (prioritizing the rule of lenity over Chevron deference "is tenuous at best and requires us to fill in more blanks than we are willing to do”).

      . Perez argues we should not rule on timeliness because the government did not raise it until supplemental briefing. We have given both parties "ample opportunity to address the issue” through supplemental briefing, and will exercise our discretion to decide it. U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447-48, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993). Although the government suggested in supplemental briefing that Perez's challenge is substantive, there is no "impropriety in refusing to accept what in effect [is the parties’] stipulation on a question of law.” Id. at 448, 113 S.Ct. 2173. In addition, the government noted that "[i]f this were ... a procedural challenge ... it would be time-barred.”

      . Perez also argues his challenge is timely because the agency "fail[ed] to put aggrieved parties on reasonable notice of the rule’s content.” JEM Broad., 22 F.3d at 326. We disagree. We noted in Wind River that " '[plublication in the Federal Register is legally sufficient notice to all interested or affected persons regardless of actual knowledge or hardship resulting from ignorance.' ” 946 F.2d at 714 (alteration in original) (quoting Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364 (9th Cir. 1990)). Here, the notice published in the Federal Register was sufficient to inform an interested party the regulation created a streamlined system for assessing claims from individuals in reinstatement proceedings and that the agency viewed such individuals as ineligible for asylum. See 64 Fed. Reg. at 8485, discussed above at pp. 9-10.

      . Perez and amici argue 8 C.F.R. § 1208.31(e) does not merit Chevron deference because the agency failed to exercise its interpretive authority at all and treated § 1231(a)(5) as unambiguous. They therefore suggest we should remand to the agency un- - der the rule expressed in Negusie v. Holder, 555 U.S. 511, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009), and Gila River Indian Community v. United States, 729 F.3d 1139 (9th Cir. 2013). We reject this suggestion. The government's argument on appeal that the statute is unambiguous does not tell us how the agency viewed the statute when it initially promulgated the regulation. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (noting appellate counsel’s “convenient litigating position” is not entitled to deference). Rather, agency action rises or falls on the agency's own contemporaneous reasoning, and where we have remanded under Negusie the administrative record has more clearly shown that "the agency misapprehended the clarity of the statute” and “mistakenly derermine[d] that its interpretation [was] mandated by plain meaning, or some other binding rule,” Gila River, 729 F.3d at 1149 (emphasis added). The administrative history does not discuss the specific language of the asylum statute, but neither does it suggest the agency saw § 1231(a)(5) as compelling the regulation's particular approach to asylum, withholding of removal or CAT protection. On the contrary, the agency's explanation shows it applied its expertise by crafting an expedited screening process and balancing the fair resolution of claims for relief from removal against Congress’ desire to provide for streamlined removal of certain classes of individuals, including those subject to reinstated removal orders. See 64 Fed. Reg. at 8485, discussed above at pp. 9-10.

      . In Fernandez-Vargas, the Supreme Court parenthetically described 8 C.F.R. §§ 241.8(e) and 208.31 as “raising the possibility of asylum.” 548 U.S. at 35 n.4, 126 S.Ct. 2422. This appears to have been an oversight; although both regulations refer to "asylum officers,” they clearly permit only withholding from removal. Indeed, the main text of the Court's footnote correctly refers only to "seek[ing] withholding of removal” under those regulations.

      . Perez is a first-time asylum claimant, and alleges no circumstances that materially changed between his removal from the United States and his subsequent reentry. We therefore have no opportunity here to determine how § 1158(a)(2)(D) might affect § 1231(a)(5) in a case where those two provisions are actually in conflict.


author: RAKOFF, Senior District Judge:

text:
    S. Rowan WILSON, Plaintiff-Appellant, v. Loretta E. LYNCH, Attorney General; Bureau of Alcohol, Tobacco, Firearms And Explosives; B. Todd Jones, as Acting Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; Arthur Herbert, as Assistant Director of U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; and United States of America, Defendants-Appellees.
    No. 14-15700
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 21, 2016, San Francisco, California
    Filed August 31, 2016

      Charles C. Rainey (argued) and Jennifer J. Hurley, Rainey Legal Group PLLC, Las Vegas, Nevada, for Plaintiff-Appellant.
    ' Abby C. Wright (argued) and Michael S. Raab, Attorneys, Appellate Staff; Daniel G. Bogden, United States Attorney; Civil Division, Department of Justice, Washington, D.C.; for Defendants-Appellees.
    Before: SUSAN P. GRABER and RICHARD C. TALLMAN, Circuit Judges, and JED S. RAKOFF, Senior District Judge.

       The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation.

   OPINION

RAKOFF, Senior District Judge:

Plaintiff-Appellant S. Rowan Wilson acquired a Nevada medical marijuana registry card. She then sought to purchase a firearm, but the firearms dealer knew that Wilson held a registry card. Consistent with a letter issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), the dealer refused to sell Wilson a firearm because of her registry card. Wilson sued, challenging the federal statutes, regulations, and guidance that prevented her from buying a gun. The district court dismissed Wilson’s complaint, and Wilson appealed. We affirm.

BACKGROUND

Marijuana is classified as a Schedule I controlled substance under the Controlled Substances Act, 21 U.S.C. § 812. As a Schedule I controlled substance, marijuana, under federal law, is deemed to have “no currently accepted medical use in treatment^ and] [tjhere is a lack of accepted safety for use of the ... substance under medical supervision.” Id. § 812(b)(1)(B) & (C).

This, however, is not the view of the State of Nevada. Although Nevada law criminalizes the possession of marijuana, see Nev. Rev. Stat. § 453.336(4), Nevada’s Constitution was amended in 2000 to provide for medical marijuana use, see Nev. Const, art. IV, § 38. Under a statutory scheme enacted pursuant to. this constitutional amendment, a holder of a valid marijuana registration ID card (a “registry card”) is exempt from state prosecution for marijuana-related crimes. Nev. Rev. Stat. § 453A.200. To acquire a registry card, an applicant must provide documentation from an attending physician affirming that the applicant has a chronic or debilitating medical condition, that the medical use of marijuana may mitigate the symptoms of the condition, and that the physician has explained to the- applicant the risks and benefits of the medical use of marijuana. Id. § 453A.210(2)(a)(l)-(3). Cardholders must also comply with certain ongoing requirements, including limitations on the amount of marijuana they have at one time, id. § 453A.200(3)(b), as well as the requirement that they “[e]ngage in ... the medical use of marijuana in accordance with the provisions of this chapter as justi-fled to mitigate the symptoms or effects of a person’s chronic or debilitating medical condition,” id. § 453A.200(3)(a). A registry card is valid for one year and may be renewed annually by submitting updated written documentation from a physician. Id. §§ 453A.220(5), 453A.230(l)(b).

Turning to federal firearms provisions, under 18 U.S.C. § 922(g)(3) no person “who is an unlawful user of or addicted to any controlled substance” may “possess ... or ... receive any firearm or ammunition.” In addition, it is unlawful for “any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person ... is an unlawful user of or addicted to any controlled substance.” Id. § 922(d)(3).

The ATF has promulgated regulations implementing § 922 and defining a person “who is an unlawful user of or addicted to any controlled substance.” See 27 C.F.R. § 478.11. The ATF has also developed Form 4473, which confirms eligibility for gun ownership under § 922. Prospective purchasers of firearms fill out Form 4473 when they seek to buy a firearm. Form 4473 includes Question ll.e., which asks “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” See Firearms Transaction Record Part I — Over-the-Counter (“Form 4473”), https://www.atf.gov/file/61446/download. If the answer is “yes,” the putative transaction is prohibited.

On September 21, 2011, the ATF issued an “Open Letter to All Federal Firearms Licensees” (the “Open Letter”) that stated the following:

[ A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer “yes” to question ll.e. on ATF Form 4473 ... and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question ll.e. on ATF Form 4473.

Open Letter to all Federal Firearms Licensees dated Sept. 21, 2011, https://www. atf.gov/files/press/releases/2011/09/092611-atf-open-letter-to-all-ffls-marijuana-for-medicinal-purposes.pdf.

It was against this regulatory and statutory context that appellant Wilson, on May 12, 2011, was issued a marijuana registry card by the State of Nevada. A few months later, on October 4, 2011, Wilson sought to purchase a firearm from Custom Firearms & Gunsmithing in the small community of Moundhouse, Nevada. As Wilson began to fill out Form 4473, the owner of the store, Frederick Hauser, stopped her from completing Question ll.e, which asked whether Wilson was an unlawful user of a.controlled substance. Hauser explained that, because (as Hauser already knew) Wilson held a marijuana registry card, Wilson was deemed an unlawful user of a controlled substance and therefore someone to whom he could not sell a firearm without jeopardizing his federal firearms license. Wilson handed Hauser Form 4473 with Question ll.e. left blank. Hau-ser, who had received the ATF Open Letter three days earlier, nonetheless refused to sell her a firearm. Wilson alleges that Hauser’s refusal to sell her a firearm was a direct consequence of Hauser’s receipt of the Open Letter.

On October 18, 2011, Wilson filed the present action against the Government and, on December 17, 2012, filed a First Amended Complaint (the “FAC”). Wilson asserted five causes of action: (1) violation of the Second Amendment, (2) violation of the Equal Protection Clause of the Fifth Amendment, (3) violation of the procedural Due Process Clause of the Fifth Amendment, (4) violation of the substantive Due Process Clause of the Fifth Amendment, and (5) violation of the First Amendment. Wilson sought declarations that 18 U.S.C. § 922(g)(3) and (d)(3), as well as all derivative regulations, such as 27 C.F.R. § 478.11, and the Open Letter, were unconstitutional. Wilson also sought a permanent injunction barring enforcement of § 922(g)(3) and (d)(3), all derivative regulations, and the Open Letter. Finally, Wilson sought compensatory and punitive damages, costs, fees, and expenses.

On January 31, 2013, the Government filed a motion to dismiss the FAC. In her opposition to Defendants’ motion to dis-' miss, Wilson asserted that the Open Letter also violated the Administrative Procedure Act (“APA”). On March 11, 2014, the district court granted the Government’s motion to dismiss the FAC- The district court also denied Wilson leave to amend the FAC to raise an APA claim, concluding that amendment would be futile. Wilson timely appealed.

DISCUSSION

We review de novo the district court’s dismissal for failure to state a claim, and we review for abuse of discretion the denial of leave 'to amend. Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011). We review de novo all constitutional rulings. Fournier v. Sebelius, 718 F.3d 1110, 1117 (9th Cir. 2013).

A.

As a preliminary matter, we address two jurisdictional issues:

First, as appellant’s counsel conceded at oral argument, Wilson lacks standing to challenge 18 U.S.C. § 922(g)(3). Standing requires, among other elements, a “concrete and particularized” injury that is “actual or imminent, not conjectural or hypothetical.” Lujan v De/s. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). Section 922(g)(3) criminalizes possession or receipt of a firearm by a unlawful drug user or a person addicted to a controlled substance. Wilson has not alleged that she is an unlawful drug user or that she is addicted to any controlled substance. Nor has she alleged that she possessed or received a firearm. Accordingly, Wilson has not alleged that § 922(g)(3) has injured her in any way. For the same reasons, she also has not shown a “genuine threat of imminent prosecution” under § 922(g)(3), as is generally required of plaintiffs raising pre-enforcement challenges to criminal statutes outside the First Amendment context. San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996) (internal quotation marks omitted). Accordingly, we affirm on the ground of lack of standing the district court’s dismissal of Wilson’s claims concerning § 922(g)(3).

Wilson does have standing, however, to raise her remaining claims challenging 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter. Wilson alleges that § 922(d)(3)’s ban on sales of firearms to individuals whom sellers have reasonable cause to believe are drug users, along with the regulations and guidance implementing this ban, prevented her from purchasing a firearm. These allegations are sufficient to satisfy the injury require-, ment.

Second, contrary to the Government’s suggestion, Wilson’s remaining claims are not moot. We review the mootness of a case de novo. Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003). The Government’s concern is that because Wilson has not renewed her registry card throughout her appeal, she is no longer injured by 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter. Although the FAC discusses only the registry card issued in May 2011, which expired in 2012, Wilson represents that she has routinely renewed her card. The Government has not challenged the accuracy of this representation. Because Wilson has appealed from a granted motion to dismiss and her representation simply updates the allegation in the FAC that she has a current registry card, we accept it as true for purposes of her appeal. Cf. Worth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

B.

Wilson’s first constitutional challenge to 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter purportedly rests on the Second Amendment. Specifically, Wilson claims that these provisions unconstitutionally burden her individual right to bear arms. See District of Columbia v. Heller, 554 U.S. 570, 592, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The district court concluded, however, that Wilson’s Second Amendment challenge failed under our decision in United States v. Dugan, 657 F.3d 998 (9th Cir. 2011). In Dugan, we held that the Second Amendment does not protect the rights of unlawful drug users to bear arms, id. at 999-1000, in the same way that it does not protect the rights of “felons and the mentally ill,” Heller, 554 U.S. at 626-27, 128 S.Ct. 2783. The Government argues that if the Second Amendment does not protect the rights of unlawful drug users to bear arms, it must not protect any possible rights of unlawful drug users to purchase firearms or of firearm dealers to sell to unlawful drug users. Therefore, were Wilson an unlawful drug user, she would be beyond the reach of the Second Amendment, and her claims would fail categorically.

However, taking Wilson’s allegations as true, as we must on an appeal from a motion to dismiss, Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987), she is not actually an unlawful drug user. Instead, she alleges that, although she obtained a registry card, she chose not to use medical marijuana for various reasons, such as the difficulties of acquiring medical marijuana in Nevada, as well as a desire to make a political statement. Regardless of her motivations, we agree that Wilson’s claims do not fall under the direct scope of Dugan

This does not mean that her Second Amendment claim succeeds. We have adopted a two-step inquiry to determine whether a law violates the Second Amendment. We ask (1) “whether the challenged law burdens conduct protected by the Second Amendment and (2) if so ... apply an appropriate level of scrutiny.” United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). Following this approach, we apply intermediate scrutiny and uphold 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter.

i. Whether 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter Burden Protected Conduct

At Chovan’s first step, we ask “whether the challenged law burdens conduct protected by the Second Amendment, based on a historical understanding of the scope of the [Second Amendment] right, or whether the challenged law falls within a well-defined and narrowly limited category of prohibitions that have been historically unprotected.” Jackson v. City & County of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014) (citations and internal quotation marks omitted). With respect to Wilson, this inquiry is straightforward: because Wilson insists that she is not an unlawful drug user, a convicted felon, or a mentally-ill person, she is not a person historically prohibited from possessing firearms under the Second Amendment. Accordingly, by preventing Wilson from purchasing a firearm, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter directly burden her core Second Amendment right to possess a firearm, and we proceed to Chovan’s second step.

ii. Which Level of Scrutiny Applies to 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter

The appropriate level of scrutiny for laws that burden conduct protected by the Second Amendment “depend[s] on (1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law’s burden on the right.” Chovan, 735 F.3d at 1138 (citing Ezell v. City of Chicago, 651 F.3d 684, 703 (7th Cir. 2011) (internal quotation marks omitted)). Application of the first prong is guided by, “HelleFs holding that the Second Amendment has ‘the core lawful purpose of self-defense,’ and that ‘whatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens tó use arms in defense of hearth and home.’ ” Jackson, 746 F.3d at 961 (alteration in original) (quoting Heller, 554 U.S. at 630, 635, 128 S.Ct. 2783). Here, as previously stated, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter burden the core of Wilson’s Second Amendment right because they prevent her from purchasing a firearm under certain circumstances and thereby impede her right to use arms to defend her “hearth and home.” Id. (internal quotation marks omitted).

With respect to the second prong of the second Chovan step,

laws which regulate only the manner in which persons may exercise their Second Amendment rights are less burdensome than those which bar firearm possession completely. Similarly, firearm regulations which leave open alternative channels for self-defense are less likely to place a severe burden on the Second 'Amendment right than those which do not.

Id. (citations and internal quotation marks omitted). The burden on Wilson’s core Second Amendment right is not severe. Title 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter bar only the sale of firearms to Wilson — not her possession of firearms. Wilson could have amassed legal firearms before acquiring a registry card, and 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter would not impede her right to keep her firearms or to use them to protect herself and her home. In addition, Wilson could acquire firearms and exercise her right to self-defense at any time by surrendering her registry card, thereby demonstrating to a firearms dealer that there is no reasonable cause to believe she is an unlawful drug user.

Because 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter do not place a severe burden on Wilson’s core right to defend herself with firearms, we apply intermediate scrutiny to determine whether these laws and guidance pass constitutional muster.

iii. Applying Intermediate Scrutiny to 18 U.S.C. § 922(d)(3), 27 C.F.R. 478.11, and the Open Letter

Intermediate scrutiny “require[s] (1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.” Chovan, 735 F.3d at 1139 (internal quotation marks omitted). Wilson concedes that the Government had a substantial interest in enacting § 922(d)(3) to prevent gun violence. However, she argues that the fit between 27 C.F.R. § 478.11 and the Open Letter, on the one hand, and violence prevention, on the other, is not reasonable because 27 C.F.R. § 478.11 and the Open Letter deprive so many non-violent people, such as Wilson, who hold registry cards for political reasons, of their Second Amendment rights.

The Government argues that empirical data and legislative determinations support a strong link between drug use and violence. As to the first, studies and surveys relied on in similar cases suggest a significant link between drug use, including marijuana use, and violence. See United States v. Carter, 750 F.3d 462, 466-69 (4th Cir. 2014) (citing and discussing four studies and two government surveys); United States v. Yancey, 621 F.3d 681, 686 (7th Cir. 2010) (per curiam) (citing all but one of the studies and surveys in Carter, plus one additional study). While it would have been helpful for the Government to provide the studies in this case, Wilson has not challenged their methodology. We therefore have no occasion to evaluate the reliability of the studies and surveys, and instead accept them as probative.

Moreover, legislative determinations also support the link between drug use and violence. In particular,' Congress enacted 18 U.S.C. § 922(g)(3), which bars unlawful drug users from possessing firearms, “to keep firearms out of the hands of presumptively risky people.” Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n.6, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983). It is beyond dispute that illegal drug users, including marijuana users, are likely as a consequence of that use to experience altered or impaired mental states that affect their judgment and that can lead to irrational or unpredictable behavior. See Carter, 750 E.3d at 469-70. They are also more , likely to have negative interactions with law enforcement officers because they engage in criminal activity. Id. Finally, they frequently make their purchases through black market sources who themselves frequently resort to violence.

It may be argued that medical marijuana users are less likely to commit violent crimes, as they often suffer from debilitating illnesses, for which marijuana may be an effective palliative. They also may be less likely than other illegal drug users to interact with law enforcement officers or make purchases through illicit channels. But those hypotheses are not sufficient to overcome Congress’s reasonable conclusion that the use of such drugs raises the risk of irrational or unpredictable behavior with which gun use should not be associated.

By citing to the link between unlawful drug users and violence in this case, however, the Government incorrectly conflates registry cardholders with unlawful drug users. While these two categories of people overlap, they are not identical. The Government’s showings of the link between drug use and violence would be sufficient were we applying intermediate scrutiny to 18 U.S.C. § 922(g)(3), which bars unlawful drug users from possessing firearms. But Wilson flatly maintains that she is not an unlawful drug user and is instead challenging a set of laws that bar non-drug users from purchasing firearms if there is only reasonable cause to believe that they are unlawful drug users, for instance, if they hold a registry card. Wilson correctly points out that the degree of fit between these laws and the ultimate aim of preventing gun violence is not as tight as the fit with laws like 18 U.S.C. § 922(g)(3), which affect only illegal drug users.

Nonetheless, the degree of fit between 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter and the aim of preventing gun violence is still reasonable, which is sufficient to survive intermediate scrutiny. The. connection between these laws and that aim requires only one additional logical step: individuals who firearms dealers have reasonable cause to believe are illegal drug users are more likely actually to be illegal drug users (who, in turn, are more likely to be involved with violent crimes). With respect to marijuana registry cards, there may be some small population of individuals who — although obtaining a marijuana registry card for medicinal purposes — instead hold marijuana registry cards only for expressive purposes. But it is eminently reasonable for federal regulators to assume that a registry cardholder is much more likely to be a marijuana user than an individual who does not hold a registry card.

Because the degree of fit between 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter and their purpose of preventing gun violence is reasonable but not airtight, these laws will sometimes burden — albeit minimally and only incidentally — the Second Amendment rights of individuals who are reasonably, but erroneously, suspected of being unlawful drug users. However, the Constitution tolerates these modest collateral burdens in various contexts, and does so here as well. For instance, the Fourth Amendment allows an officer to burden an individual’s right to be free from searches when the officer has “reason to believe” the person is armed and dangerous, see Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a standard comparable to the “reasonable cause to believe” standard of § 922(d). Moreover, as previously noted, there are various ways for individuals in Wilson’s position to minimize or eliminate altogether the burdens that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter place on their Second Amendment rights. Accordingly, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter survive intermediate scrutiny, and the district court did not err in dismissing Wilson’s Second Amendment claims.

C.

Wilson also claims that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter violate the First Amendment. Wilson’s claim fails under long-standing First Amendment precedents.

i. Whether Wilson’s Conduct is Protected by the First Amendment

We apply a two-pronged test, known as the Spence test, to determine when conduct contains sufficient elements of communication to fall within the scope of the First Amendment. First, we ask whether the “intent to convey a particularized message was present.” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam)). Second, we ask whether “the likelihood was great that the message would be understood by those who viewed it.” Id. (quoting Spence, 418 U.S. at 410-11, 94 S.Ct. 2727).

Wilson argues that her acquisition of a registry card qualifies as expressive conduct protected by the First Amendment. She allegedly intended to convey a particularized message in support of medical use of marijuana and argues that in the midst of a hotly contested debate over the legalization of marijuana, viewers of the card would understand this message. The Government does not dispute that Wilson’s acquisition of a registry card passes the Spence test, and we agree that, in the peculiar circumstances alleged, Wilson’s acquisition of a registry card falls within the scope of conduct protected by the First Amendment. However, other actions that could give a firearms dealer reasonable cause to believe that Wilson, or another individual, was an unlawful drug user do not necessarily pass the Spence test and are not necessarily expressive. For that reason, Wilson’s First Amendment claim rests only on her acquisition of a registry card.

ii. The Appropriate Level of Scrutiny

Courts apply strict scrutiny to laws that “proscribe particular conduct because it has expressive elements.” Johnson, 491 U.S. at 406, 109 S.Ct. 2533. “A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires.” Id. (internal quotation marks omitted). But intermediate scrutiny applies when a law is directed at the non-communicative portion of conduct that contains both communicative and non-communicative elements: “[W]hen ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

Wilson argues that strict scrutiny must apply because the Open Letter was allegedly part of a campaign by the Government to crush the medical marijuana movement. She points to news reports that discuss a “crackdown” by the Government on state medical marijuana systems. As noted earlier, this hypothesis seems unlikely; all the federal government would have needed to do to “crush” the medical marijuana movement would have been to enforce the federal laws prohibiting marijuana possession as then interpreted, for the laws, as noted earlier, do not permit a medical exception. However, even accepting Wilson’s allegations as true, they do not demonstrate that the Government targeted Wilson’s expressive conduct of acquiring a registry card. They demonstrate only that the Government moved to enforce valid federal criminal statutes against the unauthorized acquisition or transfer of firearms by those who illegally use controlled substances. The production, distribution, and use of medical marijuana are not protected by the First Amendment, and efforts by the Government to impede — or even eliminate altogether — the production, distribution, and use of medical marijuana are not evidence of any conspiracy against free speech. Likewise, the Government’s efforts to reduce gun violence through 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter are not directed at the expressive portion of Wilson’s acquisition of a registry card. Accordingly, any burden the Government’s anti-marijuana and anti-gun-violence efforts place on Wilson’s expressive conduct is incidental, and the less searching O’Brien standard applies here.

iii. Applying the O’Brien Standard

Under O'Brien,

a government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to' the furtherance of that interest.

O’Brien, 391 U.S. at 377, 88 S.Ct. 1673. The Open Letter satisfies each of these . conditions.

With respect to the first O’Brien condition, Wilson argues that the Open Letter is analogous to the Subversive Activities Control Act of 1950, which barred any member of designated Communist groups from employment in défense facilities and which the Supreme Court held violated the First Amendment in United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967). But Robel and its discussion of the freedom of association is irrelevant to the question whether the Government may constitutionally regulate the sale and possession of firearms. It may indeed do so, and so the Open Letter meets the first O’Brien condition.

With respect to the second O’Brien condition, although Wilson concedes that preventing violent crime is an important interest, she argues that the Government has failed to show that the Open Letter furthers this interest. She points out that the Government has failed to marshal any evidence of the efficacy of the Open Letter in reducing gun violence, despite its being in effect since 2011. But the Government is not required to make such a specific showing in this context. Instead, our discussion of Wilson’s Second Amendment claim suffices to show that the Open Letter furthers the aim of preventing gun violence. Registry cardholders are more likely to be marijuana users, and illegal drug users, including marijuana users, are more likely to be involved in violent crimes. See Carter, 750 F.3d at 466-69; Yancey, 621 F.3d at 683-84. Accordingly, preventing those individuals who firearm dealers know have registry cards from acquiring firearms furthers the Government’s interest in preventing gun violence.

With respect to the third O’Brien condition, Wilson again argues that the purpose of the Open Letter was the suppression of support for medical marijuana. As discussed above, neither the Government’s efforts to reduce gun violence nor its efforts to curtail marijuana use are related to the suppression of free expression.

With respect to the fourth O’Brien condition, Wilson argues that the incidental effect of the Open Letter on her First Amendment rights is greater than is essential to reduce gun violence. In particular, she argues that the Open Letter places her on the horns of a constitutional dilemma: she must either surrender her Second Amendment right to possess a firearm or her First Amendment right to express her support for medical marijuana use. Wilson faces no such dilemma. The Open Letter burdens only a single form of expression in support of medical marijuana use: — the holding of a registry card. Otherwise, Wilson may advocate vigorously and as publicly as she wishes for medical marijuana use while possessing firearms. Moreover, the burden that the Open Letter does place on this single form of expression is minimal. As explained above, Wilson may purchase firearms before acquiring or after surrendering a registry card. As a practical matter, Wilson is not caught in any dilemma, and the Open Letter’s incidental effect on her First Amendment rights is no greater than necessary to reduce gun violence.

Because the Open Letter satisfies each of the O’Brien conditions, it survives intermediate scrutiny, and the district court did not err in dismissing Wilson’s First Amendment claims.

D.

Wilson also raises Fifth Amendment claims against 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter. In particular, she argues that the Open Letter violates her procedural due process rights protected by the Due Process Clause of the Fifth Amendment and violates the Equal Protection Clause as incorporated into the Fifth Amendment. These claims fail.

To begin with, Wilson’s procedural due process rights have not been violated. “A procedural due process claim has two distinct elements: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.” Brewster v. Bd. of Educ., 149 F.3d 971, 982 (9th Cir. 1998). Wilson argues that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter deprive her of her liberty interest in simultaneously carrying a registry card and purchasing a firearm. She contends that this deprivation occurs without any process-only a determination that she holds a registry card. However, Wilson does not have a constitutionally protected liberty interest in simultaneously holding a registry card and purchasing a firearm. Moreover, she has failed to state a procedural due process claim, and the district court did not err in dismissing her claim.

Likewise, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter do not violate the Equal Protection Clause. “The first step in equal protection analysis is to identify the state’s classification of groups. ... The next step in equal protection analysis would be to determine the level of scrutiny.” Country Classic Dairies, Inc. v. Mont., Dep’t of Commerce Milk Control Bureau, 847 F.2d 593, 596 (9th Cir. 1988). “[E]qual protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam) (footnote omitted).

Wilson argues that 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter disadvantage several groups, including registry cardholders versus users of medical marijuana in states where registry cards are not required. She also argues that she is being treated differently from other persons with similar medical conditions who have pursued other methods of treatment. None of these groups, however, is a suspect or quasi-suspect class. In addition, as discussed above, 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter do not impermissibly interfere with the exercise of any fundamental rights, including Wilson’s right to possess firearms. Accordingly, we apply rational basis scrutiny.

Title 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter survive rational basis scrutiny because they are reasonably related to reducing gun violence, as explained above. Accordingly, the district court did not err in dismissing Wilson’s Fifth Amendment claims.

E.

Wilson also claims that the Open Letter violated the APA Wilson did not plead a specific cause of action for violations of the APA in the FAC, and the district court denied her leave to amend to do so, concluding that any such amendment would be futile. Wilson argues that the Open Letter violated the APA because it is a legislative rule that must go through notice-and-comment procedures under 5 U.S.C. § 553(b) & (c) but did not.

Title 5 U.S.C. § 553(b)(3)(A) exempts “interpretative rules” and “general statements of policy” from the notice- and-comment requirement of agency rulemak-ing. The Supreme Court has described interpretive rules as materials “issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.” Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995) (internal quotation marks omitted). We have stated that “interpretive rules merely explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule. Legislative rules, on the other hand, create rights, impose obligations, or effect a change in existing law pursuant to authority delegated by Congress.” Hemp Indus. Ass’n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003) (citation omitted). Specifically, we have identified three circumstances when a rule has the “force of law” and is therefore legislative: “(1) when, in the absence of the rule, there would not be an adequate legislative basis for enforcement action; (2) when the agency has explicitly invoked its general legislative authority; or (3) when the rule effectively amends a prior legislative rule.” Id. (citing Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993)).

The first two Hemp Industries categories do not apply here: 18 U.S.C. § 922(d)(3) provides an adequate legislative basis for enforcement action even without the Open Letter, and the ATF did not explicitly invoke any legislative authority when it published the Open Letter.

Wilson argues that the Open Letter falls into the third Hemp Industries category because it effectively amended 27 C.F.R. § 478.11. Specifically, she argues that the Open Letter impermissibly expands 27 C.F.R. § 478.11’s definition of an “unlawful user” of illegal drugs to include registry cardholders who use marijuana. Section 478.11 defines an unlawful user as “any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.” Wilson contends that, because a medical recommendation must be obtained to receive a marijuana registry card, a holder of a registry card who uses marijuana has not used a controlled substance in a manner other than as prescribed by a licensed physician. This is incorrect as a matter of federal law. Under 21 U.S.C. § 812, marijuana is a Schedule I controlled substance, meaning that — as far as Congress is concerned — marijuana “has no currently accepted medical use in treatment!, and] there is a lack of accepted safety for use of the ... substance under medical supervision.” 21 U.S.C. § 812(b)(1)(B) & (C). No physician may legally prescribe marijuana as a matter of federal law, and no user of medical marijuana is using it “as prescribed by a licensed physician” within the meaning of 27 C.F.R. § 478.11.

Wilson also characterizes the Open Letter as making a blanket assertion that any individual with a registry card is a marijuana user. According to Wilson, this blanket assertion is made without any investigation or due process, and is therefore unlike the illustrations provided in 27 C.F.R. § 478.11 that assist others in determining when someone can reasonably be determined as using a “controlled substance in a manner other than as prescribed by a licensed physician.” However, the Open Letter does not make a blanket assertion that all registry card users are marijuana users, it simply clari-fíes that a firearms dealer has “reasonable cause to believe” an individual is an unlawful user if she holds a registry card. This inference falls well within the scope of 27 C.F.R. § 478.11, which states that “[a]n inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time.” A marijuana registry card is circumstantial evidence, although by no means dispositive evidence, of recent use or possession of marijuana. Moreover, it is immaterial that registry cards are different from the illustrations mentioned in 27 C.F.R. § 478.11 that may raise an inference of unlawful drug use. Helpful examples in regulations need not be exhaustive. Indeed, that is one reason agencies publish guidance like the Open Letter — to provide additional examples that “explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule.” Hemp Indus., 333 F.3d at 1087. Accordingly, we agree with the district court that the Open Letter is “textbook interpretative” and that it was exempt from notice-and-comment procedures under 5 U.S.C. § 553(b)(3)(A). The district court did not err in dismissing Wilson’s APA claim, to the extent it was pleaded, or in denying Wilson leave to amend her complaint to expand her APA claim.

CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

      . As we recently observed: “The [Controlled Substances Act] prohibits the manufacture, distribution, and possession of marijuana. Anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime.” United States v. McIntosh, No. 15-10117, 833 F.3d 1163, 1179 n. 5, 2016 WL 4363168, at *11 n.5 (9th Cir. Aug. 16, 2016).

      . Neither party challenged the district court’s determination that Wilson had standing, but we have an independent obligation “to examine jurisdictional issues'Such as standing [sua sponte].’’ B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). We review questions of standing de novo. La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1087 (9th Cir. 2010).

      . Wilson argues that, in light of the active political movements to decriminalize the use of marijuana in some states, her stance as a non-using registry cardholder allows her to express her support for marijuana legalization in a particularly meaningful way.

      . Dugan does, however, dispose of Wilson’s Second Amendment claims against 18 U.S.C. § 922(d)(3), 27 C.F.R. § 478.11, and the Open Letter to the extent that they are facial, as distinct from as-applied, challenges. Under Dugan, there is no question that § 922(d)(3) could be enforced constitutionally, pursuant to 27 C.F.R. § 478.11 and the Open Letter, against a dealer who knowingly sold a firearm to a registry cardholder who was actively using marijuana.

      . Wilson, also argues that the purpose of the Open Letter was to crush the medical marijuana movement. On its face, the Open Letter serves no such purpose, and Wilson has not substantiated her suspicions with any facts. In addition, if the Government had wished to oppose the medical marijuana movement, it would not have needed the Open Letter — it would have needed merely to enforce existing federal statutes as then interpreted. See 21 U.S.C. § 812. (But see footnote 7, infra.)

      . A majority of states have enacted similar restrictions on possession of firearms by habitual illegal drug users. See Yancey, 621 F.3d at 683-84 (citing twenty-six state statutes and a District of Columbia statute).

      . See McIntosh, 833 F.3d at 1177-79, 2016 WL 4363168, at *9-10 (holding that the United States Department of Justice is prohibited under a congressional appropriations rider from prosecuting individuals who are en~ gaged in conduct permitted by state medical marijuana laws and who fully comply with such laws).

      . Of course, Congress ‘would have to restore funding for the prosecution of marijuana offenses before the federal government could enforce the laws prohibiting possession. See McIntosh, 833 F.3d at 1179 n. 5, 2016 WL 4363168, at *11 & n.5

      . Wilson also raised substantive due process claims in the district court, but she addresses their dismissal in conclusory fashion on appeal, arguing only that she stated a substantive due process claim because of her fundamental right to choose a course of medical treatment. This argument is foreclosed by our decision in Raich v. Gonzales, 500 F.3d 850, 866 (9th Cir. 2007) ("[FJederal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.”). Accordingly, the district court did not err in dismissing Wilson's substantive due process claim or in denying her leave to amend it.

      . Wilson argues that, although she did not set out her APA claim as formally as her other claims, she nonetheless adequately pleaded a violation of the APA under Federal Rule of Civil Procedure 8(a)’s notice pleading standard. We do not reach this issue because Wilson’s APA claim fails regardless of whether it was properly pleaded under Rule 8(a). In other words, the district court did not abuse its discretion in denying Wilson leave to correct any deficiency in her pleading of her APA claim because any such amendments would be futile.

      . Wilson points to the following instances identified in 27 C.F.R. § 478.11 as examples of conduct or behavior that may raise an inference of current use of a controlled substance:
      a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year.