author: HURWITZ, Circuit Judge:

text:
    UNITED COOK INLET DRIFT ASSOCIATION; Cook Inlet Fishermen’s Fund, Plaintiffs-Appellants, v. NATIONAL MARINE FISHERIES SERVICE; Penny Pritzker, in her official capacity as Acting United States Secretary of Commerce; Kathryn Sullivan, Acting Under Secretary of Commerce and Administrator for the National Oceanic and Atmospheric Administration; James W. Balsiger, in his official capacity as NMFS Alaska Region Administrator, Defendants-Appellees, State of Alaska, Intervenor-Defendant-Appellee.
    No. 14-35928
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 2, 2016, Anchorage, Alaska
    Filed September 21, 2016

      Jason T. Morgan (argued) and Beth S. Ginsberg, Stoel Rives LLP,-Seattle, Washington, for Plaintiffs-Appellants.
    Ellen J. Durkee (argued) and Coby Howell, Attorneys, Appellate Section; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Caroline Park, NOAA Office of the General Counsel, Silver Spring, Maryland; Lauren Smoker, NOAA Office of the General Counsel, Department of Commerce, Juneau, Alaska; for Defendants-Appellees.
    Seth M. Beausang (argued), Assistant Attorney General, Anchorage, Alaska, for Intervenor-Defendant-Appellee.
    Before: RAYMOND C. FISHER, RICHARD A. PAEZ, and ANDREW D. HURWITZ, Circuit Judges.
   OPINION

HURWITZ, Circuit Judge:

The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-91 (“Magnuson-Stevens Act,” or “the Act”), creates a “national program for the conservation and management of the fishery resources of the United States.” Id. § 1801(a)(6). The Act establishes eight Regional Fishery Management Councils, each of which “shall” prepare a fishery management plan (“FMP”) “for each fishery under its authority that requires conservation and management.” Id. § 1852(a), (h)(1). The Secretary of Commerce,, acting through the National Marine Fisheries Service (“NMFS”), then reviews each FMP or amendment of a plan “to determine whether it is consistent with the [Act’s] national standards, the other provisions of this chapter, and any other applicable law,” 16 U.S.C. § 1854(a)(1). See Or. Trailers Ass’n v. Gutierrez, 452 F.3d 1104, 1108 (9th Cir. 2006).

The issue for decision is whether NMFS can exempt a fishery under its authority that requires conservation and management from an' FMP because the agency is content with State management. The district court held that' it could. We disagree, and reverse.

BACKGROUND

I. Factual and Legislative Background

Cook Inlet is one of- the nation’s most productive salmon fisheries. Its salmon are anadromous, beginning their lives in Alaskan freshwater, migrating to the ocean, and returning to freshwater to spawn.

In 1953, the United'States entered into the International Convention for the High Seas Fisheries of the North Pacific Ocean. In' response, Congress enacted the North Pacific Fisheries Act of 1954 (the “1954 Act”), authorizing the Secretary of the Interior to promulgate regulations governing fisheries contiguous to Alaskan waters. See Pub. L. No. 83-579, §§ 10 & 12, 68 Stat. 698, 699-700 (previously codified at 16 U.S.C. ■§§ 1021-35). The Secretary then issued a regulation prohibiting salmon net fishing in the western waters of Alaska, but excepting Cook Inlet and two other areas where net fishing had historically been permitted under Alaska law; in those areas, federal regulation was to mirror existing' Alaskan regulation. 50 ■ C.F.R. § 210.10 (repealed).

Before 1976, the United States asserted authority only over waters up to twelve nautical miles from the coastline, and there was substantial concern that foreign fishers were depleting American fisheries. See Mark H. Zilberberg, A Legislative History of the Fishery Conservation & Management Act of 1976 (“Legislative History”) 237-41, 352, 448-49, 455-56, 472-73, 476-81, 519 (1976). In 1976, Congress enacted the Fishery Conservation and Management Act (the “1976 Act”), Pub. L. No. 94-265, 90 Stat 331 (codified as amended at 16 U.S.C. §§ 1801-1891), later renamed the Magnuson-Stevens Act. The 1976 Act extended federal jurisdiction to 200 miles from the coastline, id. § 101 (codified as amended at 16 U.S.C. § 1811), and regulated foreign fishing in that area, id. §§ 201, 204 (codified as amended at 16 U.S.C. §§ 1821, 1824). States retained jurisdiction over the first three miles from the coast, id. § 306(a) (codified as amended at 16 U.S.C. § 1856), and the federal government had jurisdiction over the next 197 miles, originally called the fishery conservation zone (“FCZ”) and later named the exclusive economic zone (“EEZ”), id. § 101 (codified as amended at 16 U.S.C. § 1811). See also 16 U.S.C. § 1801(b)(1); Exclusive Economic Zone of the United States of America, 48 Fed. Reg. 10,605 (Mar. 10, 1983).

The federal government manages its waters through eight regional Councils. 16 U.S.C. § 1852. During the debate on the 1976 Act, Senator Gravel of Alaska criticized the concept of federal management on one side of the three-mile line and state management on the other, because fish freely travel across the three-mile bounds ary. Legislative History 412-13, 460-67. Senator Gravel suggested that a state should manage its federal waters under a plan approved by the federal government. Id. at 467, 471. Senator Stevens of Alaska, one of the bill’s managers, offered an even broader proposal, which provided for exclusive state management of “[tjhose fisheries capable of being managed as a unit, which reside principally within the waters of a single State.” Id. at 422. But, Congress instead approved a more modest substitute offered by the bill’s other manager, Senator Magnuson, directing Councils, if possible, to incorporate state management measures in FMPs. Id.; 1976 Act § 305(c) (codified at 16 U.S.C. § 1855).

In 1979, NMFS promulgated an FMP for salmon fisheries near Alaska. See Fishery Management Plan for the High Seas Salmon, 44 Fed. Reg. 33,250 (June 8,1979) (the “Salmon FMP”). The Salmon FMP divided Alaskan federal waters into East and West Areas; Cook Inlet is in the West Area. Id. at 33,267. With respect to the West Area, the FMP tracked the regulations promulgated under the 1954 Act prohibiting commercial salmon fishing except in the three historic net-fishing areas, including Cook Inlet, which the State would continue to manage. Id. (“These fisheries are technically in the FCZ, but are conducted and managed by the State of Alaska as inside fisheries.”). The decision to leave these fisheries in the hands of the State was not based on a finding that they were in good health; to the contrary, the Salmon FMP found that “[a]ll salmon species are at historic low levels in the Cook Inlet management area, with chinook stocks seriously depleted.” Id. at 33,309.

In 1983, Congress amended the Act to specify that a Council need only prepare an FMP with respect to a fishery “that requires conservation and management.” Pub. L. No. 97-453, § 5(4), 96 Stat. 2481, 2486 (codified as amended at 16 U.S.C. §- 1852(h)(1)). The conference report explained this amendment was intended “to clarify that the function of the Councils is not to prepare a fishery, management plan (FMP) for each and every fishery within their geographical areas of authority. Rather, such plans are to be developed for those fisheries which require conservation and management.” H.R. Conf. Rep. No. 97-982, 97th Cong., 2d Sess., at *18.

Alaska had proposed to amend the Act “to direct the Secretary of Commerce to delegate authority of a domestic fishery in the FCZ to -the adjacent state ... if ... 1) the fishery does not cross interstate boundaries; and 2) the State is capable and willing to provide conservation and management consistent with the National Standards,” Omnibus Authorization Bill for the National Oceanic and Atmospheric Administration: Hearings Before the. S. Comm, on Commerce, Sci & Transp., Serial No. 97-118, 97 Cong. 310 (1982) [hereinafter Hearings] (statement of Ronald 0. Skoog, Commissioner, Alaska Department of Fish and Game). But, this proposal was not enacted. See Pub. L. No. 97-453, § 5(4), 96 Stat. 2481,2486 (1982).

The Salmon FMP was revised in 1990. The revised FMP stated that, under the regulation implementing the 1954 Act, 50 C.F.R. §210, salmon net fishing in the West Area was prohibited, with the exception of the three historic net-fishing areas, which “technically extend into the EEZ, but ... are conducted and managed by the State of Alaska as nearshore fisheries.”

In 1992, a new international convention prohibited all fishing for anadromous fish beyond the EEZ. Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, art. I, III. Congress promptly implemented that convention and repealed the 1954 Act. North Pacific Ana-dromous Stocks Act of 1992, Pub. L. No. 102-567, §§ 801-14,106 Stat. 4309 (codified at 16 U.S.C. §§ 5001-5012). The Secretary of Commerce then concluded that regulations promulgated under the 1954 Act, including 50 C.F.R. §210, no longer had statutory support, and repealed them. Removal of Regulations, 60 Fed. Reg. 39,271, 39,272 (Aug. 2, 1995). But, the Salmon FMP was not revised, and Alaska continued to manage the three historic net fisheries.

In 1995, a fishing vessel, “Mister Big,” engaged in a massive unregulated harvest of scallops in the federal waters of Prince William Sound. See Trawler Diane Marie, Inc. v. Brown, 918 F.Supp. 921 (E.D.N.C. 1995). That scallop fishery was not covered by an FMP, but the Magnuson-Stevens Act provided that a State could regulate fishing vessels in federal waters that were registered in that state. Id. at 924, 926; see Pub. L. No. 98-623, § 404(4), 98 Stat. 3394, 3408 (1984) (“[A] State may not directly or indirectly regulate any fishing vessel outside its boundaries, unless the vessel is registered under the law of that State.”). The Mister Big set sail from Seattle, renounced its Aaska registration, and began fishing for scallops in the Sound. Trawler Diane Marie, 918 F.Supp. at 924. By January 26,1995, the quota that Alaska set for the area, 50,000 pounds of scallops, had been harvested, so Alaska closed the scallop season and Alaska-registered boats returned home. Id. But, the Mister Big continued to dredge, eventually harvesting 52,000 pounds of scallops before the Secretary of Commerce approved an emergency closure of the fishery. Id. at 925, 927. The North Pacific Council had drafted an FMP which addressed the possibility that an unregulated vessel might fish for scallops in the federal waters off Alaska, but had not adopted it “because of the belief that all vessels fishing in the EEZ would be registered in Alaska and thus bound by the state’s regulations.” Id. at 926.

The following year, Congress revised the provision regarding state authority to regulate fishing vessels in federal waters. See Sustainable Fisheries Act, Pub. L. No. 104-297, §112, 110 Stat. 3559, 3595-97 (1996). Aiter that amendment, the Magnu-son-Stevens Act now provides, in relevant part:

A State may regulate a fishing vessel outside the boundaries of the State in .the following circumstances:
(A) The fishing vessel is registered under the law of that State, and (i) there is no fishery management plan or other applicable Federal fishing regulations for the fishery in which the vessel is operating; or (ii) the State’s laws and regulations are consistent with the fishery management plan and applicable Federal fishing regulations for the fishery in which the vessel is operating.
(B) The fishery management plan for the fishery in which the fishing vessel is operating delegates management of the fishery to a State and the State’s laws and regulations are consistent with such fishery management plan.

16 U.S.C. § 1856(a)(3). The version of the bill reported out of the House Committee on Resources would have authorized Alaska to enforce its regulations in federal waters even absent an FMP. H.R. Rep. No. 104-171, at *11-12 (1995). But, that version was not enacted. Pub.- L. No. 104-297, § 112.

II. Amendment 12

The North Pacific Council has jurisdiction over the federal waters of Cook Inlet. Six of. its 11, voting members are from Alaska and the remainder are from Washington and Oregon. 16 U.S.C. § 1852(a)(1)(G), (b)(1), (b)(2)(C).

In 2010, the North Pacific Council began a comprehensive review of the Salmon FMP. As a result, NMFS “realized” that Cook Inlet was “not exempt from the FMP as previously assumed.” Council staff prepared a discussion paper, which summarized the situation as follows:

The FMP is vague on the function of the FMP in these areas. Though the FMP broadly includes these three areas and the salmon and fisheries that occur there within the fishery management unit and states that management of these, areas is left to the State under other Federal law, the FMP does not explicitly defer management of these salmon fisheries to the State. The FMP does not contain any management goals or objectives for these three areas or any provisions-- with which to manage salmon fishing. The FMP only refrains from extending the general fishing prohibition to those areas, where, as the FMP notes, fishing was authorized by other Federal law, [which has since been repealed]. Therefore, the FMP’s reference to “other Federal laws” may no longer be fully effective.

The North Pacific Council circulated a draft Environmental Assessment, held five public meetings, and took testimony. In 2011, the North Pacific Council unanimously voted to remove the three historic net fishing areas from the Salmon FMP. In April 2012, NMFS solicited comments on this change, “Amendment 12,” and proposed implementing regulations. 77 Fed. Reg. 19,605 (Apr. 2, 2012); 77 Fed. Reg. 21,716 (Apr. 11, 2012).

Two groups of commercial fishermen, the United Cook Inlet Drift Association and the Cook Inlet Fishermen’s Fund (collectively, “United Cook”), submitted comments urging the rejection of Amendment 12. The comments cited a 51% decline since 1981 in the commercial catch of sockeye salmon. United Cook attributed this decline to two management failures by Alaska. First, United Cook argued that the State had failed to address the introduction -of carnivorous northern pike into nearby lakes and streams. Second, United Cook argued that Alaska was not properly managing the. escapement of salmon- in Cook Inlet. The Magnuson-Stevens Act requires limits on the number of fish caught. 16 U.S.C. § 1853(a)(15). In contrast, Alaska manages commercial salmon fishing through escapement goals, ie., the number of salmon allowed to “escape” past a fishery to spawn. According, to United Cook, “the State misses the high- end of its escapement goal targets as much as 35% of the time,” leading to. a massive unharvested supply of fish, and “has no escapement goals at all for many runs in Cook Inlet.”

In June 2012, NMFS issued a final Environmental Assessment, finding that “the State is the appropriate authority for managing Alaska salmon fisheries given the State’s existing infrastructure and expertise,” and that “the State’s escapement based management system is a more effective management system for preventing overfishing than a system [like the federal one] that places rigid numeric limits- on the number of fish that may -.be caught.” NMFS also issued a finding that Amendment 12 would have no significant impact on the environment because it would not change the management of the fisheries. NMFS approved Amendment 12, and, in December 2012, promulgated implementing regulations. See Fisheries.of the Exclusive Economic .Zone Off Alaska; Pacific Salmon, 77 Fed. Reg. 75,570 (Dec. 21, 2012); 50 C.F.R. § 679.2 (definition of West Area).

III. Procedural Background

United Cook filed this action in 2013, challenging Amendment 12 and its implementing regulations as contrary to the Magnuson-Stevens Act’s requirement that a Council prepare an FMP “for each fishery under its authority that requires conservation and management,” 16 U.S.C. § 1852(h)(1). United Cook also alleged that Amendment 12 was arbitrary and capricious and contrary to the National Environmental Policy Act, 42 - U.S.C. § 4332(2)(C). The ■ district court granted Alaska’s motion to intervene as a defendant, and entered summary judgment for the government. United Cook timely appealed.

DISCUSSION

The Magnuson-Stevens Act requires that “[e]ach Council shall, in accordance with the provisions of this chapter— (1) for each fishery under its authority that requires conservation and management, prepare and submit to the Secretary (A) a fishery management plan_” 16 U.S.C. § 1852(h)(1). Thus, the usual initial question is whether the fishery at issue even needs conservation and management. See Anglers Conservation Network v. Pritzker, 139 F.Supp.3d 102, 114-15 (D.D.C. 2015). We review that administrative decision under the traditional arbitrary and capricious standard. Id. But we need not tarry over that issue here; the government concedes that the Cook Inlet fishery requires conservation and management.

But, the government argues that the Act only requires an FMP for fisheries that need federal conservation and management, and that Cook Inlet is in good hands with Aaska. The district court found the Act ambiguous, gave Chevron deference to the government’s interpretation, and found not arbitrary and capricious the agency’s decision that federal involvement was not necessary. .

We determine whether to afford Chevron deference to an agency interpretation of a statute under a two-step analysis. First, we consider “whether Congress has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). “If the intent of Congress is clear, that is the end of the matter.” Id. Only “if the statute is silent or ambiguous with respect to the specific issue,” do we go to step two, which considers “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.

“We start, as always, with the language of the statute.” Williams v. Taylor, 629 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Section 1862(h)(1) of the Act provides that a Council “shall” prepare an FMP for a fishery (1) “under its authority” that (2) requires “conservation and management.” The government concedes that Cook Inlet is a fishery under its authority that requires conservation and management. But it argues that an FMP is only mandated by the Act when “federal” conservation and management is required. Thus, the government asks us to insert the word “federal” into § 1862(h)(1) before the phrase “conservation and management.”

“[W]e ordinarily resist reading words or elements into a statute that do not appear on its face,” Bates v. United States, 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997), and the government never persuasively explains why we should deviate from that rule here. See Pac. Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084, 1095 (9th Cir. 2012) (rejecting a reading of the Magnuson-Stevens Act which “requires inserting the word ‘only or ‘solely’ into subsection [1853a](c)(5)”); see also Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015, 1020 (9th Cir. 1993) (stating that courts “lack ... power” to “read into the statute words not explicitly inserted by Congress”). In arguing that we should insert the word “federal” into § 1852(h)(1), the government relies heavily on what it calls the “deferral” provision of the Act, § 1856(a)(3)(A)(I), which allows a state to regulate state-licensed vessels in federal waters when no FMP exists. The government argues that this provision assumes that NMFS can cede regulatory authority to a state over federal waters that require conservation and management simply by declining to issue an FMP. But, § 1856(a)(3)(A)(I) does not create an exception to the general obligation to issue an FMP when a fishery requires conservation and management; rather, the provision only restates the longstanding principle that a State can regulate vessels registered under its laws in federal waters absent federal law to the contrary. This principle dates at least to 1976. See 1976 Act § 306(a) (“No State may directly or indirectly regulate any fishing which is engaged in by any fishing vessel outside its boundaries, unless such vessel is registered under the laws of such State.”).

The 1996 amendment to the Mag-nuson-Stevens -Act did not expand that traditional state authority, but rather limited state jurisdiction over state-registered vessels to when (i) there is no FMP, or (ii) state law is consistent with the FMP. See Sustainable Fisheries Act, § 112 (codified at 16 U.S.C. § 1856(a)(3)(A)). This “deferral provision” would be a strange form of delegation of federal regulatory authority, as it does not allow states to regulate vessels registered in other states. In contrast, the next paragraph of the 1996 amendments, the so-called “delegation” provision, expressly authorizes NMFS to “delegate! ] management of the fishery to a State” through ah FMP, at which point the state can regulate any fishing vessel in the federal waters at issue, regardless of registration. Id. (codified at 16 U.S.C. § 1856(a)(3)(B)).

The Act is clear: to delegate authority over a federal fishery to a state, NMFS must do so expressly in an FMP. 16 U.S.C. § 1856(a)(3)(B). If NMFS concludes that state regulations embody sound principles of conservation and management and are consistent with federal law, it can incorporate them into the FMP. Id. § 1853(b)(5). Indeed, Amendment 12 expressly delegates management of the East Area — certain federal waters off Alaska not including Cook Inlet — to Alaska. Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Salmon, 77 Fed. Reg. at 75,570-71; 50 C.F.R. §§ 679.1(i)(2) (“State of Alaska laws and regulations that are consistent with the Salmon FMP and with the regulations in this part apply to vessels of the United States that are commercial and sport fishing for salmon in the East Area of the Salmon Management Area.”), 679.3(f). Amendment 12 could have expressly delegated management of Cook Inlet to Alaska as well, but it did not. The government argues removing Cook Inlet from the FMP amounts to delegation. But, the federal government cannot delegate management of the fishery to a State without a plan, because a Council is required to develop FMPs for fisheries within its jurisdiction requiring management and then to manage those fisheries “through” those plans. 16 U.S.C. §§ 1801 (b)(4) — (5), 1852(h)(1). The “deferral” provision covers those waters where for some reason a plan is not in effect; it is not an invitation to a Council to shirk the statutory command that it “shall” issue an-FMP for each fishery within its jurisdiction requiring conservation and management.

Although we find the statutory language clear, we also note that the legislative history of the Act belies the government’s argument. The Act makes plain that federal fisheries are to be governed by federal rules in the national interest, not managed by a state based on parochial concerns. Compare 16 U.S.C. §§ 1801(a)(6)' (“A national program for the conservation and management of the fishery resources of the United States is necessary to prevent overfishing ... ’and to realize the full potential of the Nation’s fishery resources.”) and 1802(33)(A) (“The term ‘optimum’, with respect to the yield from a fishery, means the amount of fish which — (A) will provide the greatest overall benefit to the Nation.”) and 1811(a) (“[T]he United States claims, and will exercise in the manner provided for in this chapter, sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources,' within the exclusive economic zone.”) with Alaska Br. 13 (“The Alaska- Constitution requires the State to manage natural resources for the maximum benefit and use for all Alaskans.” (citing Alaska Const, art. VIII, §§ 1-2)). Congress therefore repeatedly rejected proposals to provide for state management of federal fisheries without an FMP. Compare Legislative History 422, 467, 471, with 1976 Act § 305(c); compare Hearings, supra, at 310, with Pub. L. No. 97-453, § 5(4) (1982); compare H. Rep. No. 104-171 at *11-12, with Pub. L. No. 104-297, § 112 (1996). We decline the government’s invitation to vest in Alaska the very authority that Congress abjured.

Alaska argues that NMFS has discretion not to adopt an FMP for federal waters requiring management and conservation, because “shall” sometimes means “may.” See Sierra Club v. Whitman, 268 F.3d 898, 904 (9th Cir. 2001). But, that is not the general rule; we recognized in Sierra Club that “ ‘shall’ in a statute generally denotes a mandatory duty.” Id.; see also United States v. Monsanto, 491 U.S. 600, 607, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (stating that by using “shall,” “Congress could not have chosen stronger words to express its intent that forfeiture be mandatory”); Brower v. Evans, 257 F.3d 1058, 1067 n.10 (9th Cir. 2001) (“‘Shall’ means shall.” (quoting Ctr. for Biological Diversity v. Norton, 254 F.3d 833, 837-38 (9th Cir. 2001))). Our holding in Sierra Club that the Environmental Protection Agency did not have a mandatory duty to bring enforcement actions under the Clean Water Act was driven by “the traditional presumption that an agency’s refusal to investigate or enforce is within the agency’s discretion,” and based on an “[analysis of the structure and the legislative history of the Clean Water Act.” 268 F.3d at 902, 904. No similar factors here support reading “shall” as “may.”

The government argues that § 1852(h)(1) does not expressly require an FMP to cover an entire fishery, noting that “the provision says nothing about the geographic scope of plans at all.” But, the statute requires an FMP for a fishery, a defined term. See 16 U.S.C. § 1802(13). No one disputes that the exempted area of Cook Inlet is a salmon fishery. But, under the government’s interpretation, it could fulfill its statutory obligation by issuing an FMP applying to only a single ounce of water in that fishery. We disagree. When Congress directed each Council to create an FMP “for each fishery under its authority that requires conservation and management,” id. § 1852(h)(1), it did not suggest that a Council could wriggle out of this requirement by creating FMPs only for selected parts of those fisheries, excluding other areas that required conservation and management. See id: § 1853(a) (setting out the required contents of FMPs).

Finally, the government argues that its interpretation is supported by National Standards 3 and 7 in the Magnuson-Ste-vens Act, 16 U.S.C. § 1851(a)(3), (7), and the implementing- guidelines for those standards, 50 C.F.R. §§600.305-355. But, the National Standards only govern the contents of an FMP, not the decision whether to issue one. See 16 U.S.C. § 1851(a). (requiring that FMPs "be consistent with the following national standards for fishery conservation and management”). The government’s advisory guidelines fare no better, as they do not have the force of law. Id. §'1851(b)..

CONCLUSION

■ The Magnuson-Stevens Act unambiguously requires a Council to create an FMP for each fishery under its authority that requires conservation and management. The Act allows delegation to a state under an FMP, but does not excuse the obligation to adopt an FMP when a Council opts for state management. Amendment 12 is therefore contrary to law to the extent it removes Cook Inlet from the FMP. We reverse the judgment of the district court and remand with instructions that judgment be entered in favor of United Cook.

REVERSED and REMANDED.

      . "[W]e ‘cautiously adhere’ to the practice of consulting legislative history” at step one of a Chevron analysis, Irvine Med. Ctr. v. Thompson, 275 F.3d 823, 829 n.3 (9th Cir. 2002) (quoting Am. Rivers v. Fed. Energy Reg. Comm'n, 201 F.3d 1186, 1196 n.16 (9th Cir. 2000)), recognizing that "courts have no authority to enforce a principle gleaned solely from legislative history that has no statutory reference point,” Shannon v. United States, 512 U.S. 573, 584, 114 S.Ct. 2419, 129 L.Ed.2d 459 (1994) (alterations omitted).

      . Alaska also argues that, if we fail to add the word "federal” before "conservation and management” in § 1852(h)(1), NMFS will be forced to issue an FMP for every fishery, because all fisheries require some conservation and management, However, the legislative history of the Act directly refutes this argument. A previous version of the statute required an FMP for every fishery under a Council's authority. In 1983, Congress amended the statute to specify that an FMP is necessary only where a fishery "requires conservation and management.” Pub, L, No. 97-453 §5(4), 96 Stat, 2481, 2486 (codified as amended at 16 U.S.C. § 1852(h)(1)). If every fishery required some type of conservation and management, this amendment would amount to a nullity. But, "[w]hen Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.” Stone v. I.N.S., 514 U.S. 386, 397-98, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). The amendment thus indicates Congress understood that some fisheries might not require conservation or management.

      . The government also appears to argue that it fully discharged its statutory obligation . when the Salmon FMP was adopted in 1990, because the FMP included Cook Injet (albeit by placing it under Alaska's authority), and that it was thereafter free under the Act to remove any parts of the West Area from the FMP, But, removing a fishery from an FMP is no different than excluding that fishery from the start. An amendment to an FMP, like the FMP itself, must conform to the statutory scheme. See 16 U.S.C. §§ 1852(h)(1) ("Each Council shall ... prepare and submit to the Secretary ... (B) amendments to each such plan that are necessary.”); 1854(a)(1) (requiring the Secretary to review an FMP amendment "to determine whether it is consistent with the national standards, the other provisions of this chapter, and any other applicable law”).

      . Because Congress has spoken clearly, we need not reach Chevron step two. And, because we conclude that Amendment 12 is contrary to law with respect to its removal of Cook Inlet from the FMP, we need not address United Cook's other challenges to the Amendment.


source: Caselaw Access Project

author: BRISCOE, Circuit Judge.

license: Public Domain

text:
    Constantine Fedor GOLICOV, a/k/a Constantin Fedor Golicov, a/k/a Constantine Fedo Golicov, a/k/a Constantin Golicov, a/k/a Kostik Golicov, a/k/a Constantin Golikov, a/k/a Constantine Fedor Golicv, a/k/a/ Constantine F. Golicov, Petitioner, v. Loretta LYNCH, Attorney General of the United States, Respondent. National Immigration Project of the National Lawyers Guild; Immigrant Legal Resource Center, Amici Curiae.
    No. 16-9530
    United States Court of Appeals, Tenth Circuit.
    September 19, 2016

      Skyler Anderson, Anderson & Benson, PLLC, Taylorsville, Utah, for Petitioner.
    Sunah Lee, United States Department of Justice, Washington, D.C. (Benjamin C. Mizer, Principal Deputy Assistant, Assistant Attorney General, Civil Division; Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation; Song E. Park, Senior Litigation Counsel, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., on the brief), for Respondent.
    Sejal Zota, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts, filed an amicus curiae brief in support of Petitioner.
    Before BRISCOE, HOLMES and MORITZ, Circuit Judges.
   BRISCOE, Circuit Judge.

Petitioner Constantine Fedor Golicov, a lawful permanent resident of the United States, seeks review of an order of the Board of Immigration Appeals (BIA) concluding that his Utah state conviction for failing to stop at a police officer’s command renders him removable under the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii). That provision of the INA requires the removal of “[a]ny alien who is convicted of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INA defines the term “aggravated felony” to include “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F).

Golicov argues, as he did before the BIA, that the INA’s definition of “crime of violence,” which expressly incorporates 18 U.S.C. § 16(b)’s definition of “crime of violence,” is unconstitutionally vague. In support, he points to the Supreme Court’s decision in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Johnson, the Court held that the Armed Career Criminal Act’s residual definition of the term “violent felony,” 18 U.S.C. § 924(e)(2)(B), was void for vagueness.

Exercising jurisdiction pursuant to 8 U.S.C. § 1252, we agree with Golicov, grant his petition for review, vacate the order of removal, and remand the case to the BIA for further proceedings consistent with this opinion.

I.

Golicov was born on March 12, 1986, in the Eastern European country of Moldova. On August 15, 2001, he became a lawful permanent resident of the United States.

On November 9, 2010, Golicov was convicted in Utah state court of the third-degree felony of failing to stop at a police officer’s command, in violation of Utah Code Ann. § 41-6a-210(l)(a)(I), and sentenced to five years’ imprisonment. The statute of conviction reads as follows:

An operator who receives a visual or audible signal from a peace officer to bring the vehicle to a stop may not:
(i) operate the vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person....

Utah Code Ann. § 41-6a-210(l)(a)(I).

On December 4, 2012, while Golicov was still serving his prison sentence, the Department of Homeland Security (DHS) served Golicov with a Notice to Appear (NTA), charging that he was removable under § 227(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), because his Utah conviction constituted an aggravated felony under the INA.

The INA outlines several “classes of de-portable aliens,” all of which “shall, upon the order of the Attorney General, be removed.” 8 U.S.C. § 1227(a). Of relevance here, one such class includes “[a]ny alien who is convicted of an aggravated felony at any time after admission.” 8 U.S.C. §' 1227(a)(2)(A)(iii).

The term. “aggravated felony” is expressly defined in the INA and includes, among other things, “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). In turn, a “crime of violence” is defined in 18 U.S.C. § 16 to include:

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16(b).

Golicov denied the DHS’s charge and moved to terminate the removal proceedings. On February 8, 2013, the immigration judge (IJ) issued a decision dismissing the sole charge of removability and terminating the proceedings against Golicov. DHS appealed from that decision.

On July 27, 2015, the BIA sustained DHS’s appeal and reversed the IJ’s decision. The BIA concluded that Golicov’s Utah state conviction was “a categorical crime of violence under 18 U.S.C. § 16(b) and an aggravated felony as defined by section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F).” ROA at 3. The BIA remanded the record to the IJ, pursuant to the DHS’s request, “to explore [Golicov’s] potential eligibility for relief.” Id. at 3.

On remand to the IJ, Golicov moved to terminate the proceedings on the grounds that the Supreme Court’s decision in Johnson effectively rendered unconstitutional and improper for use in immigration proceedings the definition of “crime of violence” contained in 18 U.S.C. § 16(b). On January 11, 2016, the IJ issued a decision and order rejecting Golicov’s argument and denying his motion to terminate. Goli-cov appealed to the BIA. On May 5, 2016, the BIA issued a written decision agreeing with the IJ’s legal conclusions and dismissing Golicov’s appeal.

Golicov subsequently filed a petition for review with this court.

II.

The central question posed by Goli-cov in this appeal is whether the INA’s definition of “crime of violence,” 8 U.S.C. § 1101(a)(43)(F), which expressly incorporates 18 U.S.C. § 16(b)’s definition of that same term, is unconstitutionally vague in light of the Supreme Court’s decision in Johnson. The BIA answered this question in the negative. We review the BIA’s decision de novo. Mena-Flores v. Holder, 776 F.3d 1152, 1162 (10th Cir. 2015) (“In reviewing the Board’s decision, we engage in de novo review of constitutional and other legal questions.”).

A.

The void-for-vagueness doctrine derives from the Due Process Clause of the Fifth Amendment, which guarantees that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law.” Supreme Court precedent “establish[es] that the Government violates this guarantee by taking away someone’s life, liberty, or property under a criminal law so vagué that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson, 135 S.Ct. at 2556. “The prohibition of vagueness in criminal statutes ‘is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rales of law,’ and a statute that flouts it ‘violates the first essential of due process.’ ” Id. at 2556-57 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). “These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.” Id

B.

As a threshold matter, the government argues that the vagueness standard for criminal laws that was outlined in Johnson should not apply to the INA, which it characterizes as a civil statute governing removal. Aplee. Br. at 13. We disagree. As the Sixth Circuit recently noted in rejecting this same argument in the context of an identical vagueness challenge to 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b), Shuti v. Lynch, 828 F.3d 440, 445 (6th Cir.2016), the Supreme Court has stated that “[i]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings,” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), and has specifically applied the void-for-vagueness doctrine in a deportation case, Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951).

To be sure, the government argues that the Court in Jordan “did not have occasion to decide whether the same vagueness standard that governs criminal statutes also governs’ statutes applied' in civil removal proceedings.” Aplee. Br. at 15. But, like the Ninth Circuit, which also addressed the same argument in the context of a vagueness challenge to 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b), we find the government’s argument “baffling.” Dimaya v. Lynch, 803 F.3d 1110, 1113 (9th Cir. 2015). As the Ninth Circuit explained, “Jordan considered whether the. term ‘crime involving moral turpitude’ in section 19(a) of the Immigration Act of 1917, a type of offense that allowed for a non-citizen to ‘be. taken into custody and deported,,’ was void for vagueness,” id. (quoting 341 U.S. at 225-31, 71 S.Ct. 703) (emphasis added), and “the Court explicitly rejected the argument that the vagueness doctrine did not apply,” id. (citing 341 U.S. at 231, 71 S.Ct. 703). In short, Jordan “recognized” that “a necessary component of a non-citizen’s right to due process of law is the prohibition on vague deportation statutes.” Id. at 1113-14.

Thus, in sum, wé agree with the Sixth and Ninth Circuits that “because deportation strips a non-citizen of his rights, statutes that impose this penalty are subject to vagueness challenges under the Fifth Amendment,” Shuti, 828 F.3d at 446; see Dimaya, 803 F.3d at 1114 (“[W]e reaffirm that petitioner may bring a void for vagueness challenge to the definition of a ‘crime of violence’ in the INA.”).-

’ C.'

Johnson addressed a. constitutional vagueness challenge to the ACCA’s definition of the term “violent felony,” 18 U.S.C. § 924(e)(2)(B). The ACCA defines the term “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year ... that— ■
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, .involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical'injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). “The closing words of this definition, italicized above, have come to be known as the [ACCA’s] residual clause.” Johnson, 135 S.Ct. at 2556. '

The Supreme Court in Johnson held that “[t]wo features of .the residual clause conspire to make it unconstitutionally vague.” Id. at 2557, The Court explained:

In the first place,, the residual clause leaves grave uncertainty about how to estimate the risk, posed by a crime. It ties the judicial assessment of risk to a judicially imagined “ordinary case” of a crime,, not to real-world facts or statutory elements. How does one go. about deciding what kind of conduct the “ordinary case” of a crime involves? “A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” United States v. Mayer, 560 F.3d 948, 952 (C.A.9 2009) (Kozinski, C.J., dissenting from denial of rehearing en banc), To take an example, does the ordinary instance of witness tampering involve offering a witness a bribe? Or threatening a witness with violence? Critically, picturing the criminal’s behavior is not enough; .as we have already discussed, assessing “potential risk” seemingly requires the judge to imagine how the idealized ordinary case of the crime subsequently plays out. James[ v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007),] illustrates how speculative (and how detached from statutory elements) this enterprise can become. Explaining why attempted burglary poses a serious potential risk of physical injury, the Court said: “An armed would-be burglar may be spotted by a police officer, a private security guard, or a participant in a neighborhood watch program. Or a homeowner ... may give chase, and a violent encounter may ensue.” 550 U.S. at 211, 127 S.Ct. 1586. The dissent, by contrast, asserted that any confrontation that occurs during an attempted burglary “is likely to consist of nothing more than the occupant’s yelling ‘Who’s there?’ from his window, and the burglar’s running away.” Id., at 226, 127 S.Ct. 1586 (opinion of Scalia, J.), The residual clause offers no reliable way to choose between these competing accounts of what “ordinary” attempted burglary involves.
At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecisé “serious potential risk” standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction." By asking whether the crime “otherwise involves conduct that presents a serious potential risk,” moreover, the residual clause forces courts to interpret “serious potential risk” in light of the four enumerated crimes — burglary, arson, extortion, and crimes involving the use of explosives. These offenses are “far from clear in respect to the degree of risk each poses.” Begay[ v. United States], 553 U.S. [137,], 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 [(2008)]. Does the ordinary burglar invade an occupied home by night or an unoccupied home by day? Does the typical extortionist threaten his victim in person with the use of force, or does he threaten his victim by mail with the revelation of embarrassing personal information? By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.

Id. at 2557-58 (italics in original).

The Court also noted, relatedly, that it “ha[d] had trouble making sense of the residual clause” and that there had been “pervasive disagreement” among the lower federal courts “about the nature of the inquiry one [wa]s supposed to conduct” in determining whether a crime fell within the scope of the ACCA’s residual clause. Id. at 2559-60. The Court concluded that “[n]ine years’ experience trying to derive meaning from the residual clause convinced [it] that [it] ha[d] embarked upon a failed enterprise.” Id. at 2660. “Each of the uncertainties in the residual clause may be tolerable in isolation,” the Court stated, “but ‘their sum makes a task for us which at best could be only guesswork.’ ” Id. (quoting United States v. Evans, 333 U.S. 483, 495, 68 S.Ct. 634, 92 L.Ed. 823 (1948)). Consequently, the Court held that “[i]nvoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process.” Id.

Less than a year after Johnson was issued, the Supreme Court granted certio-rari in Welch v. United States, — U.S. —, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), to consider the question of “whether Johnson is a substantive decision that is retroactive in cases on collateral review.” Id. at 1261. Although that issue is immaterial to the instant appeal, the Court’s description of its decision in Johnson bears consideration:

The Johnson Court held the residual clause unconstitutional under the void-for-vagueness doctrine, a doctrine that is mandated by the Due Process Clauses of the Fifth Amendment (with respect to the Federal Government) and the Fourteenth Amendment (with respect to the States). The void-for-vagueness doctrine prohibits the government from imposing sanctions “under a criminal law so vague that it fails to- give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Id., at 1068, 135 S.Ct., at 2556. Johnson determined that the residual clause could not be reconciled with that prohibition.
The vagueness of the residual clause rests in large part on its operation under the categorical approach. The categorical approach is the framework the Court has applied in' deciding whether an offense qualifies as a violent felony under the Armed Career Criminal Act, See id., at —, 135 S.Ct. at 2556-2557. Under the categorical approach, “a court assesses whether a crime qualifies as a violent felony ‘in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.’ ” Ibid, (quoting Begay, supra, at 141, 128 S.Ct. 1581). For purposes of the residual clause, then, courts were to determine whether- a crime involved a “serious potential risk of physical injury” by considering not the defendant’s actual conduct but an “idealized ordinary case of the crime.” 576 U.S., at —, 135 S.Ct. at 2561.
The Court’s analysis in Johnson thus cast no doubt on the many laws that “require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion.” Ibid. The residual clause failed' not because it .adopted a “serious potential risk” standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense. In the Johnson Court’s view, the “indeterminacy of the wide-ranging inquiry” made the residual clause more unpredictable and arbitrary in its application than the Constitution allows. Id., at —, 135 S.Ct. at 2557. “Invoking so shapeless a provision to condemn someone to prison for 15 years to life,” the Court held, “does not comport with the Constitution’s guarantee of due process.” Id, at 1070, 135 S.Ct. at 2560.

Id. at 1261-62 (italics in original).

D!

To date, two circuits, the Sixth and Ninth, have addressed the precise question that is before us, and both concluded that the INA’s residual definition of “crime of violence,” 8 U.S.C. § 1101(a)(43)(F), which expressly incorporates the definition of that phrase contained in 18 U.S.C. § 16(b), is unconstitutionally vague in light of Johnson. Shuti, 828 F.3d at 441; Dimaya, 803 F.3d at 1111. In addition, the Fifth and Seventh Circuits have addressed similar Johnson-based vagueness challenges in the context of criminal cases involving 8 U.S.C. § 1326(b)(2), which expressly incorporates § 16(b)’s definition of “crime of violence” to define the statutory phrase “aggravated felony.” The Fifth Circuit, sitting en banc, concluded that § 16(b)’s definition of “crime of violence” is textually distinct from the ACCA’s residual clause and thus is not unconstitutionally vague on its face or as applied. United States v. Gonzalez-Longoria, 831 F.3d 670, 672-74, 676-77, 677-78, 2016 WL 4169127 at *1, *4, *6 (5th Cir. Aug. 5, 2016) (en banc). In contrast, the Seventh Circuit concluded that “[section 16(b) is materially indistinguishable from the ACCA’s residual clause,” and thus “is unconstitutionally vague according to the reasoning of Johnson.” United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015).

E.

Having carefully considered these principles and precedents, we agree with the Sixth, Seventh, and Ninth Circuits that 18 U.S.C. § 16(b) is not meaningfully distinguishable from the ACCA’s residual clause and that, as a result, § 16(b), and by extension 8 U.S.C. § 1101(a)(43)(F), must be deemed unconstitutionally vague in light of Johnson.

Similar to the ACCA’s residual clause, § 16(b), through its use of the phrase “by its nature,” “directs our focus to the ‘offense’ of conviction” and thus “requires us to look to the elements and nature of the offense of conviction, rather than to, the particular facts relating to the [defendant’s] crime.” Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In other words, similar to the ACCA’s residual clause, § 16(b) “requires courts to use a [two-step] framework known as the categorical approach when deciding whether” a prior conviction constitutes a crime of violence. See Johnson, 135 S.Ct. at 2557. Under the first step of this framework, a reviewing court must “picture the kind of conduct that the crime involves in ‘the ordinary case.’ ” Id. Under the second step, a reviewing court must “judge whether that abstraction,” i.e., the “ordinary case,” falls within the standard outlined by the statute. Id.

As was the case with the ACCA’s residual clause, it is the combination of these two steps that “conspire to make [§ 16(b) ] unconstitutionally vague.” Id. To begin with, § 16(b) “ties the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements.” Id. As the Supreme Court noted in Johnson, “How does one go about deciding what kind of conduct the ‘ordinary case’ of a crime involves?” Id. No doubt, the federal courts have struggled mightily over the years in answering this question. In turn, the standard against which that ordinary case is measured, i.e., whether it “involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” 18 U.S.C. § 16(b), “leaves uncertainty about how much risk it takes for a crime to qualify as a” crime of violence, Johnson, 185 S.Ct. at 2558. Indeed, “[njeither term — ‘substantial’ in the INA or ‘serious’ in the ACCA — ‘sets forth [objective] criterion’ to determine how much risk it takes to qualify as a crime of violence or violent felony.” Shuti, 828 F.3d at 447 (alteration in original). And, the Court emphasized in Johnson, “[i]t is one thing to apply an imprecise [‘substantial risk’] standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction.” 135 S.Ct. at 2558. In sum, § 16(b),. by “requiring] courts to assess the hypothetical risk posed by an abstract generic version of the offense” at issue, Welch, 136 S.Ct. at 1262, “produces more unpredictability and arbitrariness than the Due Process Clause tolerates,” Johnson, 135 S.Ct. at 2558.

We recognize that the Fifth Circuit concluded, and the government in this case argues, that the textual differences between § 16(b) and the ACCA’s residual clause are significant enough to spare § 16(b) from being declared unconstitutionally vague. To begin with, the Fifth Circuit noted, the ACCA’s residual clause “requires courts ... to decide whether the ordinary case would present, a ‘serious potential risk of ‘physical injury.’ ” Gonzalez-Longoria, 831 F.3d at 676, 2016 WL 4169127 at *3 (quoting 18.. U.S.C. § 924(e)(2)(B)(ii)). “In contrast, 18 U.S.C. § 16(b) requires courts to decide whether the ordinary case ‘involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’” Id. (quoting 18 U.S.C. § 16(b)). In the Fifth Circuit’s view, “[r]isk of physical 'force is more definite than risk of physical injury,” and, “by requiring that the risk of physical force arise ‘in the course of committing the offense, 18 U.S.C. § 16(b) does not allow courts to consider conduct or events occurring after the crime is complete.” Id. As a result, the Fifth Circuit concluded, § 16(b) “is predictively more sound — both as to notice (to felons) and in application (by judges) — than imputing clairvoyance as to a potential risk of injury.” Id. at 677, 2016 WL 4169127, *4.

The Fifth Circuit also concluded that the “uncertainty about how much risk it takes for a crime to qualify is less pressing in the context of 18 U.S.C. § 16(b)” than in the context of the ACCA’s residual clause. Id. As the Supreme Court noted in Johnson, the ACGA’s residual clause- “forces courts to interpret ‘serious potential risk’ in light of ... four enumerated crimes” that “are ‘far from clear in respect to the degree of risk each poses.’ ” 135 S.Ct. at 2558 (quoting Begay, 553 U.S. at 143, 128 S.Ct. 1581). In contrast, the Fifth Circuit noted, the amount of risk required under § 16(b) “is not linked to any examples.” 831 F.3d at 677, 2016 WL 4169127 at *4. Thus, the Fifth Circuit concluded, § 16(b) “is just like’ the ^dozens of federal and state criminal laws’ that employ terms such as ‘substantial risk,’ ‘grave risk,’ or ‘unreasonable risk,’ see Johnson, 135 S.Ct. at 2561, that staté and federal judges interpret as a matter of routine.” Id

We respectfully disagree with the Fifth Circuit and the government that these textual differences are sufficient to meaningfully distinguish § 16(b) from the ACCA’s residual clause. It is true that the standards employed in the two statutes vary somewhat: 16(b) focuses on the risk of physical force being used by the defendant in the course of committing the offense, whereas the ACCA’s residual clause focuses on the risk of physical injury resulting from-the defendant’s conduct. But even if we assume that the standard employed in § 16(b) is “marginally narrower” than the standard employed in the ACCA’s residual clause, the fact remains that they are both “abstraction^] all the same.” Shuti, 828 F.3d at 448; see Vivas-Ceja, 808 F.3d at 722 (“Any difference between these two phrases is superficial.”). In other words, neither phrase offers courts meaningful guidance to assess the risk posed by the hypothetical offense.

As for the fact that the risk standard employed in § 16(b) contains no list of enumerated crimes, we agree with the Sixth, Seventh and Ninth Circuits that this does not serve to meaningfully distinguish § 16(b) from the ACCA’s residual clause because the enumeration of specific crimes in the ACCA’s residual clause was not one of the “[t]wo features of' the residual clause” — i.e., the determination of the ordinary case and the risk assessment of that ordinary case — that “conspire[d],” in the Supreme Court’s view, “to make it unconstitutionally vague.” Johnson, 135 S.Ct. at 2557; see Shuti, 828 F.3d at 448 (“[T]he existence of a prefatory ‘list of examples,’ though surely confusing, was not determinative of the Court’s vagueness analysis.”); Vivas-Ceja, 808 F.3d at 723 (concluding that “[t]he government overreads” the part of the Court’s analysis in Johnson discussing the enumerated crimes); Dimaya, 803 F.3d at 1118 (“Johnson ... made plain that the residual clause was void for vagueness in and of itself for the reasons stated in reaching its decision, and not because of the clause’s relation to the four listed offenses.”). To be sure, the Court in Johnson indicated that the list of enumerated crimes in the ACCA’s residual clause added to the uncertainty of the risk assessment required by that clause because the listed offenses “are ‘far from clear in respect to the degree of risk each poses.’ ” Id. at 2558 (quoting Begay, 553 U.S. at 143, 128 S.Ct. 1581). But this “was not determinative of the Court’s vagueness analysis.” Shuti, 828 F.3d 440. That point was made clear by the Court itself in Welch when it summarized its holding in Johnson: “The residual clause failed not because it adopted a ‘serious potential risk’ standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense.” 136 S.Ct. at 1262. Nowhere in Welch did the Court mention the list of enumerated crimes in the ACCA’s residual clause, let alone indicate that the list was relevant to its holding in Johnson.

Finally, we take note of what the Sixth Circuit has accurately described as “the insidious comingling of [INA, ACCA and Sentencing Guidelines] precedents” that occurred prior to Johnson. Shuti, 828 F.3d at 447. In sum, the BIA and the federal courts regularly applied ACCA and Guidelines precedents in INA cases, without regard to the textual differences between the various provisions. See id. (citing cases). This comingling, in our view, confirms that the textual differences relied on by the Fifth Circuit in Gonzalez-Longoria and argued by the government in this case are simply not significant enough to allow us to treat the two provisions differently in terms of vagueness analysis.

F.

To summarize, we conclude that the INA’s residual definition of “crime of violence,” which expressly incorporates § 16(b)’s definition of that same term, is unconstitutionally vague in light of the Supreme Court’s decision in Johnson. As the Sixth Circuit has noted, “[f]rom a non-citizen’s perspective, this provision substitutes guesswork and caprice for fair notice and predictability.” Shuti, 828 F.3d at 450. And that in turn makes it impossible for “non-citizens and their counsel [to] be able to anticipate the immigration consequences of criminal convictions.” Id.

III.

The petition for review is GRANTED, the order of removal is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.

      . Approximately two months prior to the Sixth Circuit's decision in Shuti, a separate Sixth Circuit panel considered and rejected a constitutional vagueness challenge to the statutory definition of “crime of violence” set forth in 18 U.S.C, § 924(c)(3)(B). United States v. Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016). The Second Circuit also recently considered and rejected a constitutional vagueness challenge to the statutory definition of “crime of violence” set forth in 18 U.S.C. § 924(c)(3)(B). United States v. Hill, 832 F.3d 135, 144-50, 2016 WL 4120667 at *7-12 (2d Cir. Aug. 3, 2016).
      The Sixth, Circuit panel in Shuti "f[ou]nd Taylor wholly consistent with [its] conclusion." 828 F.3d at 449. More specifically, the panel in Shuti noted that "the statute at issue in Taylor is a criminal offense and 'creation of risk is an element of the crime.'" Id (quoting Johnson, 135 S.Ct. at 2557). Thus, the Shuti panel noted, "[u]nlike the ACCA and INA, which require a categorical approach to stale predicate convictions, 18 U.S.C. § 924(c) is a criminal offense that requires an ultimate determination of guilt beyond a reasonable doubt — by a jury, in the same proceeding.” Id.
      Because § 924(c)(3)(B) is not implicated in this case, we offer no opinion on its constitutionality or upon any distinctions that may or may not exist between it and § 1101(a)(43)(F) or§ 16(b).

      . On this point, we tend to agree with the dissent in Gonzalez-Longoria:
      The difference [between the two statutory phrases], when sliced very thinly, may indicate that § 16(b) is slightly less indeterminate because a reviewing court can more easily determine the physical force of a crime than the future injury resulting from a crime; nonetheless, nearly all' uses of physical force "risk a possibility of future injury.” Thus, virtually every criminal act that satisfies the § 16(b) test could also satisfy the residual clause’s test; any distinction between the two statutes on this ground is of indeterminate, consequence to § 16(b)’s unconstitutionality under Johnson.
      831 F.3d at 685, 2016 WL 4169127 at *11 (Jolly, J., dissenting).


author: MORITZ, Circuit Judge.

text:
    Regina WILLIAMS, individually and as personal representative of the estate of George Rouse, deceased, Plaintiff-Appellee, v. Marvin AKERS; Francia Thompson, Defendants-Appellants, and Board of County Commissioners of Grady County; Grady County Criminal Justice Authority; Grady County Industrial Authority; Art Kell, Defendants.
    No. 15-6146
    United States Court of Appeals, Tenth Circuit.
    Filed September 20, 2016

      Kari Y. Hawkins, Assistant Attorney General, Oklahoma Attorney General’s Office, Litigation Section, Oklahoma City, Oklahoma, for Appellants.
    D. Mitchell Garrett, Jr. (Amber Peckio Garrett, with him on the brief), Garrett Law Center, Tulsa, Oklahoma, for Appel-lee.
    Before GORSUCH, PHILLIPS, and MORITZ, Circuit Judges.
   MORITZ, Circuit Judge.

Oklahoma State Bureau of Investigation Agents Francia Thompson and Marvin Ak-ers (the defendants) ask us to reverse the district court’s order denying their motion to reconsider its denial of their motion to dismiss. But the defendants didn’t expressly designate that order in their notice of appeal. And we can’t fairly infer an intent to appeal that order from any of the other relevant documents before us. Accordingly, we dismiss the appeal for lack of jurisdiction.

Background

George Rouse hanged himself shortly after the defendants transported him to the Grady County Law Enforcement Center (GCLEC) for booking. Rouse’s mother, Regina Williams, brought suit under 42 U.S.C. § 1983. She alleged the defendants knew Rouse was suicidal when they delivered him to GCLEC but failed to inform GCLEC’s booking staff of that fact.

Asserting their entitlement to qualified immunity, the defendants moved to dismiss Williams’ § 1983 claim. In an order dated October 8, 2014, the district court denied the motion, concluding Williams’ complaint adequately alleged the defendants violated Rouse’s clearly established constitutional rights under the Fourteenth Amendment.

The defendants could have immediately appealed the district court’s order denying their motion to dismiss. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). They didn’t. Nor did they immediately file a motion to alter or amend judgment, or a motion seeking relief from judgment. They could have. See Fed. R. Civ. P. 59(e); Fed. R. Civ. P. 60(b). instead, nearly eight months later — after the United States Supreme Court decided Taylor v. Barkes, — U.S. —, 135 S.Ct. 2042, 192 L.Ed.2d 78 (2015) — the defendants filed a motion to reconsider the district court’s denial of their motion to dismiss. In an order dated July 31, 2015, the district court considered but denied that motion, finding Barkes inapplicable to Williams’ claim.

Four days later, the defendants filed a notice of appeal indicating they were appealing the district court’s October 8, 2014 order denying their motion to dismiss. But in their opening brief, the defendants instead ask us to review and reverse the district court’s July 31, 2015 order denying their motion to reconsider. For the reasons discussed below, we lack jurisdiction to grant that request.'

Discussion

A party in a civil case must generally file a notice of appeal within “30 days after entry of the ... order appealed from.” Fed. R. App. P. 4(a)(1)(A). But a party may enlarge that 30-day period by instead filing a Rule 60(b) motion within 28 days. In that case, the 30-day clock runs “from the entry of the order disposing of’ the Rule 60(b) motion. Fed. R. App. P. 4(a)(4)(A)(vi).

Here, it appears the defendants were under the impression that Rule 4(a)(4)(A)(vi)’s tolling provision gave them 30 days from the district court’s July 31, 2015 denial of their motion to reconsider in which to appeal the district court’s October 8, 2014 denial of their motion to dismiss. After all, the defendants’ notice of appeal (1) explicitly stated the defendants were appealing the district court’s October 8, 2014 denial of their motion to dismiss; (2) noted the district court’s July 31, 2015 denial of their motion to reconsider, and (3) asserted the notice of appeal was “accordingly timely filed pursuant to Fed. R. App. P. 4(a)(4)(A).” Aplt. App. 109. Likewise, in their docketing statement, the defendants selected Fed. R. App. P. 4(a)(4) as the authority fixing the time -limit for filing their notice of appeal, and listed their motion to- reconsider and the district court’s denial of that motion under a heading for tolling motions that referenced Fed. R. App. P. 4(a)(4)(A).

But the defendants filed their motion to reconsider nearly eight months after the district court denied their motion to dismiss — too late to take advantage of Rule 4(a)(4)(A)(vi)’s tolling provision. And because the defendants’ August 4, 2015 notice of appeal was therefore untimely as to the district court’s October 8, 2014 order denying their motion to dismiss, we lack jurisdiction to review that order. See Fed. R. App. P. 4(a)(1)(A); Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (explaining that timely filing of notice of appeal in civil case is jurisdictional requirement).

On August 24, 2015, we informed the defendants of this potential jurisdictional defect and ordered them to address the timeliness of their notice of appeal as to the district court’s October 8, 2014 order denying their motion to dismiss. In response, the defendants took a different tack. They noted that they filed their notice of appeal only four days after the district court denied then' motion to reconsider. Thus, they insisted, we should instead construe their notice of appeal as timely seeking relief from that order.

But in pursuing this new course, the defendants face yet another obstacle. Namely, even if their notice of appeal is timely as to -the order denying their motion to reconsider, see Fed. R. App. P. 4(a)(1)(A), the sufficiency of their notice is far from clear. A notice of appeal must “designate the ... order ... being appealed.” Fed. R. App. P. 3(c)(1)(B). And — as the defendants acknowledge — their notice of appeal expressly designated the district court’s October 8, 2014 order denying their motion to dismiss, not its July 31, 2015 order denying their motion to reconsider.

Like Rule 4(a)(l)(A)’s 30-day filing deadline, Rule 3(e)(l)(B)’s designation requirement is jurisdictional. See. Gonzalez v. Thaler, — U.S. —, 132 S.Ct. 641, 652, 181 L.Ed.2d 619 (2012) (citing Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992)). Nevertheless, we construe that designation requirement liberally. Nolan v. U.S. Dep’t of Justice, 973 F.2d 843, 846 (10th Cir. 1992). Thus, “[a] mistake in designating the judgment appealed from is not always fatal, so long as the intent to appeal from a specific ruling can fairly be inferred by probing the notice and the other party was not misled or prejudiced.” Sines v. Wilner, 609 F.3d 1070, 1074 (10th Cir. 2010) (quoting Sanabria v. United States, 437 U.S. 54, 67 n.21, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)). Our task, then, is to determine whether the defendants expressed an intent to appeal the order denying them motion to reconsider.

In attempting to discern their intent, we may look to the three documents the defendants “filed within the time period for filing the notice of appeal”: the notice of appeal itself; their docketing statement; and their motion to stay the district court action pending this appeal. Denver & Rio Grande W. R.R. Co. v. Union Pac. R.R. Co., 119 F.3d 847, 849 (10th Cir. 1997). But the only intent we can infer from these documents is an intent to appeal the district court’s October 8, 2014 order denying the defendants’ motion to dismiss, not its July 31, 2015 order denying their motion to reconsider.

First, the notice of appeal clearly specified that the defendants sought to appeal “from an order denying qualified immunity entered in this action on October 8, 2014.” Aplt. App. 109. The notice of appeal did at least mention the order denying the defendants’ motion to reconsider: it stated, “Defendants subsequently filed their Motion for Reconsideration, which the [c]ourt denied on July 31, 2015.... This Notice is accordingly timely filed pursuant to Fed. R. App. P-4(a)(4)(A).” Aplt. App. 109. But it’s clear from this language that the defendants didn’t reference the order denying their motion to reconsider because they intended to appeal it. Instead — -as discussed above — they referenced it because they mistakenly believed that filing the motion to reconsider enlarged their time for appealing the denial of their motion to dismiss under Rule 4(a)(4)(A)(vi).

The same intent is evident from the defendants’ docketing statement. There, the defendants selected Rule 4(a)(4) as the authority fixing the time for filing then-notice of appeal. And under a heading for tolling motions that cited Rule 4(a)(4)(A), they listed the motion to reconsider and the district court’s denial of that motion. Again, this language doesn’t suggest that the defendants intended to appeal the denial of the motion to reconsider. Rather, it reinforces their intent to use the denial of that motion as a means to accomplish then-actual goal: appealing the denial of then-motion to dismiss.

Finally, the defendants’ motion to stay reiterated that their appeal was “based upon the [cjourt’s denial of their [m]otion to [dismiss,” not upon its denial of then-motion to reconsider. Aplt. App. 111.

Because all three of these documents express an unambiguous intent to appeal only the order denying the defendants’ motion to dismiss, it is unsurprising that the defendants never explicitly assert the documents also evidence an intent to appeal the order denying their motion to reconsider. Instead, the defendants again chart a new course. This time, they insist the dispositive question isn’t whether they expressed an intent to appeal a particular order, but whether they expressed an intent to appeal a particular issue: the issue of qualified immunity.

We agree that — in some cases — information about the issue on appeal can provide insight into the order being appealed. See, e.g., Trotter v. Regents of Univ. of New Mexico, 219 F.3d 1179, 1184 (10th Cir. 2000) (noting that “a docketing statement filed within the time limits for filing a notice of appeal which ‘clearly describe[s]’ the issues on appeal serves as the ‘functional equivalent’ of a properly drafted Rule 3 notice of appeal” (quoting Denver & Rio Grande, 119 F.3d at 849 (alteration in original))).

But 'this isn’t ■ one * of those cases. Here, the defendants didn’t simply “fail[ ] to designate” the order they now seek to challenge on appeal. Denver & Rio Grande, 119 F.3d at 848. Instead, they repeatedly and consistently attempted to use that un-designated order as a tool to obtain appellate review of the order they actually designated. That’s not a mistake. That’s a strategy. And it’s one the defendants opted to pursue until we sua sponte pointed out its flaws in our August 24, 2015 order. Only then did .the defendants attempt to change course. When a party makes this kind of strategic decision to treat-an order as a means to an end for purposes of Rule 4(a)(4)(A)(vi)’s tolling provision, we see no reason to treat that same order as an end in itself for-purposes of Rule 3(c)(l)(B)’s designation requirement. Cf. Nolan, 973 F.2d at 845-46 (declining to exercise jurisdiction over undesignated order that plaintiff submitted in order to avoid dismissal of appeal from order he actually designated).

Like the defendants in this case, the plaintiff in Nolan filed an undesignated order with this court in an effort to obtain review of the order he actually designated in his notice of appeal. Id. And, like the defendants in this case, the plaintiff in Nolan then asked us to review that undes-ignated order. Id. at 844-45. We declined to do so. Specifically, we .reasoned that because the plaintiff only filed the undesig-nated order in an effort to keep us from dismissing his appeal from the order he actually designated, we couldn’t “discern from such a filing an intent also to appeal” from the undesignated order. Id. at 847. Accordingly, we dismissed the plaintiffs challenge to the undesignated order for lack of jurisdiction under Rule 3(c). Id.

As in Nolan, we can’t “discern from” the defendants’ strategic references to the un-designated order denying their motion to reconsider “an intent also to appeal from” that order. Id. Because we therefore lack jurisdiction to review the order denying their motion to reconsider, see id. we dismiss the defendants’ appeal. ■

Conclusion

We construe Rule 3(c)(l)(B)’s designation requirement liberally. But that doesn’t mean we can look the other way when a party fails to comply with that requirement altogether. Here, the defendants unquestionably failed to explicitly designate the order denying their motion to reconsider. And while their notice of appeal and their docketing statement referenced that order, they did so in a manner that only emphasized the defendants’ true intent: to challenge on appeal the order they actually designated. Under these circumstances, we can’t “fairly ... infer[ ]” from ány of the relevant documents an intent to appeal from the undesignated order. Sines, 609 F.3d at 1074 (quoting- Sanabria, 437 U.S. at 67 n.21, 98 S.Ct. 2170). Accordingly, we dismiss the appeal' for lack of jurisdiction.

      . "The federal rules do not recognize a motion to reconsider. A litigant seeking reconsideration must file a motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e), or a motion seeking relief from judgment under Fed. R. Civ. P. 60(b).” Ysais v. Richardson, 603 F.3d 1175, 1178 n.2 (10th Cir. 2010). Here, the defendants concede we must construe their motion to reconsider as a Rule 60(b) motion because they filed it outside of Rule 59(e)’s 28-day time limit. See id.

      . Williams conceded at oral argument that we have jurisdiction to review the district court’s order denying the defendants’ motion to reconsider. But her "concession has no legal effect.” Stubblefield v. Windsor Capital Grp., 74 F.3d 990, 993 n.3 (10th Cir. 1996). ”[W]here our jurisdiction is not authorized by statute, it cannot be manufactured by consent.” Id. Accordingly, "we have an independent duty to examine our own jurisdiction” despite Williams’ concession. Hill v. Vanderbilt Capital Advisors, LLC, 702 F.3d 1220, 1223 (10th Cir. 2012) (quoting Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1274 (10th Cir. 2001)).

      . In addition to Denver & Rio Grande, 119 F.3d 847, the defendants offer several other cases they contend establish that an appellant can comply with Rule 3’s designation requirement by expressing an intent to appeal a particular issue, rather than an intent to appeal a particular order. See, e.g., Bohn v. Park City Grp., Inc., 94 F.3d 1457 (10th Cir. 1996), Jones v. Nelson, 484 F.2d 1165 (10th Cir. 1973), Cheney v. Moler, 285 F.2d 116 (10th Cir. 1960). But none of these cases suggest we must apply that general rule where — as here — an appellant makes a strategic decision to use an undesignated order as a means of obtaining appellate review over a designated order, and then later attempts to challenge the undesignated order on appeal. Accordingly, we find these cases inapposite,


text:
    IN RE: Richard CLARK, Movant.
    No. 16-5081
    United States Court of Appeals, Tenth Circuit.
    Filed September 21, 2016

      Before TYMKOVICH, Chief Judge, O’BRIEN and GORSUCH, Circuit Judges.
   ORDER

In a previous order, we denied Richard Clark .authorization to file a second or successive motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In re Clark, No. 16-5081, slip op. (10th Cir. July 29, 2016). In that order, we stated that our denial of authorization “ ‘shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.’” Id., slip op. at 3 (quoting 28 U.S.C. § 2244(b)(3)(E)).

Clark has filed a “Petition for Rehearing and for Rehearing En Banc as to Whether 28 U.S.C. § 2244(b)(3)(E) Applies to Denial of Authorization to File Second § 2255 Motion.” Section 2244(b)(3)(E) provides: “The grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appeal-able and shall not be the subject of a petition for rehearing or for a writ of certiorari.” Clark argues that this statutory bar to filing a rehearing petition does not apply to our .denial of his motion for authorization to file a second or successive § 2255 motion. He asks the court to withdraw its July 29, 2016,. order and reissue the order without the language barring his ability to petition for rehearing concerning the denial of authorization.

We first consider whether Clark may file his petition for rehearing. He argues that § 2244(b)(3)(E) does not apply because he is not challenging in his rehearing petition our denial of his request for authorization to file a second or successive § 2255 motion. For this proposition he cites Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003). In Castro, the Supreme Court construed subsection (b)(3)(E) as applying only when the subject of the relevant filing — in that case, a petition for certiorari — is the denial of a request for authorization. Id. at 380, 124 S.Ct. 786. The Court explained that “[t]he ‘subject’ of Castro’s petition is not the Court of Appeals’ ‘denial of an authorization.’ It is the lower courts’ refusal to recognize that this § 2255 motion is his first, not his second. That is a very different question.” Id. (quoting 28 U.S.C. § 2244(b)(3)(E)). The Court emphasized that its construction of subsection (b)(3)(E) was consistent with “the basic principle that we read limitations on our jurisdiction to review narrowly.” Id. at 381, 124 S.Ct. 786 (internal quotation marks omitted).

We agree with Clark that the subject of his rehearing petition is not our denial of authorization. Presumably, he would file a petition challenging that denial in the event that we were to rule that § 2244(b)(3)(E) does not apply to his case. His current rehearing petition addresses only our application of that subsection to bar him from doing so. We therefore hold that Clark’s rehearing petition is not precluded by our order or by § 2244(b)(3)(E) itself.

We now turn to Clark’s argument that § 2244(b)(3)(E) is inapplicable to our denial of his motion for authorization under § 2255. He first notes that § 2244 references § 2255 only once, in subsection (a) rather than subsection (b). He also cites decisions distinguishing habeas corpus proceedings from § 2255 motions. See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 529 n.3, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (noting that some provisions in § 2255 are similar, but not identical, to portions of § 2244). Clark thus contends that the provisions of § 2244, and specifically subsection (b)(3)(E), apply only to second or successive habeas corpus applications.

We are not persuaded. For more than a decade this court has applied § 2244(b)(3)(E) in denying authorization to file a second or successive § 2255 motion. See, e.g., Leonard v. United States, 383 F.3d 1146, 1148 (10th Cir. 2004) (per curiam). Other circuits have applied subsection (b)(3)(E) in this context as well. See In re Bradford, 2016 WL 4010437, at *2-3 (11th Cir. July 27, 2016) (per curiam); Pagan-San Miguel v. United States, 736 F.3d 44, 46 n.1 (1st Cir. 2013) (per curiam); United States v. Wyatt, 672 F.3d 519, 524 (7th Cir. 2012); Paulino v. United States, 352 F.3d 1056, 1058 (6th Cir. 2003); United States v. Villa-Gonzalez, 208 F.3d 1160, 1164 (9th Cir. 2000) (per curiam); Triestman v. United States, 124 F.3d 361, 367 (2d Cir. 1997). Clark does not cite, nor have we found, any case holding that subsection (b)(3)(E) does not apply in § 2255 proceedings.

While we have consistently applied § 2244(b)(3)(E) to denials of motions for authorization under § 2255, we have not explained our reasoning for doing so. The answer is found in the text of § 2255, which provides that “[a] second or successive motion must be certified as provided in section 22H by a panel of the appropriate court of appeals” as satisfying one of the requirements in § 2255(h). 28 U.S.C. § 2255(h) (emphasis added). Thus, § 2255(h) explicitly incorporates the certification process in § 2244. We alluded to this in Browning v. United States, 241 F.3d 1262, 1263 (10th Cir. 2001) (stating that a different subsection of § 2244(b)(3) is “made applicable to federal prisoners by section 2255[ (h) ]”). And other courts have cited § 2255⅛ reference to § 2244-as the basis for applying certain provisions of § 2244 in the context of motions for authorization under § 2255. See, e.g., In re Vassell, 751 F.3d 267, 269 (4th Cir. 2014) (stating that § 2255(h) “incorporates the prefiling authorization procedure established in § 2244 for state prisoners’ second or successive habeas corpus applications”); Villa-Gonzalez, 208 F.3d at 1164 (stating that § 2255 “expressly incorporates the procedures for certification of the filing of a second or successive motion set forth in section 2244”). We hold that § 2244(b)(3)(E) is part of the certification process in § 2244 that is incorporated by § 2255(h).

Clark has not identified any point of law or fact that this court has overlooked or misapprehended in applying 28 U.S.C. § 2244(b)(3)(E) in this case. See Fed. R. App. P. 40(a)(2). Because we have denied Clark authorization to file a second or successive § 2255 motion, § 2244(b)(3)(E) precludes him from filing a petition for rehearing concerning our denial of authorization.

The petition for panel rehearing is denied. The petition for rehearing en banc was transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, that petition is also denied.

      . Clark has indicated as much in his rehearing petition. See Pet. for Rehearing at 4 n.l.

      . We note that the Supreme Court held in Castro that § 2244(b)(3)(E) did not bar a petition for certiorari in that case, which involved a federal prisoner seeking relief under § 2255. But Castro had not sought authorization to file a second or successive § 2255 motion, and the question presented here— whether subsection (b)(3)(E) is inapplicable to all denials of motions for authorization in § 2255 cases — was not raised or decided in that case. See 540 U.S. at 379-81, 124 S.Ct. 786.

      . As some of our sister circuits have noted, .§ 2255(h) does not specify which provisions of § 2244 are incorporated in § 2255. See, e.g., Triestman, 124 F.3d at 367; Reyes-Requena v. United States, 243 F.3d 893, 897 (5th Cir. 2001). We have not applied every subsection of § 2244 to motions for authorization under § 2255. For example, we have held that there are crucial differences between § 2244(b)(2)(B)(ii) and § 2255(h)(1), which define similar, but not identical, bases for a court to authorize a second or successive ha-beas petition or § 2255 motion. See Case v. Hatch, 731 F.3d 1015, 1034-35 (10th Cir. 2013). But in addition to § 2244(b)(3)(E), we have applied other aspects of § 2244's certification process in deciding motions for authorization under § 2255. See Leonard, 383 F.3d at 1147 (applying the requirement in subsection (b)(3)(A) that a prisoner must first move for authorization in the appropriate court of appeals before seeking relief in the district court); United States v. Avila-Avila, 132 F.3d 1347, 1349 (10th Cir. 1997) (per curiam) (applying the requirement in subsection (b)(3)(C) that a movant must make a prima facie showing that he satisfies the criteria for authorization of a second or successive motion under § 22£5); Brcmming, 241 F.3d at 1263 (applying the hortatory requirement in subsection (b)(3)(D) that a court should grant or deny authorization within 30 days).