author: RENDELL, Circuit Judge: HARDIMAN, Circuit Judge,

text:
    Yoselin Linet Martinez CAZUN, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
    No. 15-3374
    United States Court of Appeals, Third Circuit.
    Argued on September 22, 2016
    (Opinion filed: May 2, 2017)

      Matthew J. Archambeault, Corpuz & Archambeault, 1420 Walnut Street, Suite 1188, Philadelphia, PA 19102, Charles Roth, Keren Zwick (ARGUED), National Immigrant Justice Center, 208 South La-Salle Street, Suite 1800, Chicago, IL 60604, Counsel for Petitioner.
    Jefferson B. Sessions III, United States Attorney General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Shelley R. Goad, Assistant Director, Laura Halliday Hickein, Thomas W. Hus-sey, Carmel A. Morgan (ARGUED), Civil Division, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent.
    Rebecca A. Sharpless, Caroline McGee, Law Student, Immigration Clinic, University of Miami School Law, 1311 Miller Drive, Suite E257, Coral Gables, FL 38146, Dree K. Collopy, Benach Collopy, LLP, 1333 H Street, NW, Suite 900 West, Washington, DC 20005, Counsel Amicus for Petitioner.
    Before: MCKEE, Chief Judge , HARDIMAN and RENDELL, Circuit Judges

       Judge McKee was Chief Judge at the time this appeal was argued. Judge McKee completed his term as Chief Judge on September 30, 2016. '

   OPINION

RENDELL, Circuit Judge:

Yoselin Linet Martinez Cazun, a native and citizen of Guatemala, entered the United States illegally in 2014. She was detained and removed under an expedited removal order. Later that year, she attempted to re-enter the United States, was detained again, and her previous removal order was reinstated. When she attempted to apply for asylum, the Board of Immigration Appeals (“BIA”) held that she was statutorily ineligible to apply because her previous order of removal had been reinstated. Cazun appeals that ruling.

This case thus presents a question that many of our sister circuits have already answered in the negative: may an alien subject to a reinstated removal order apply for asylum? Because we find that Congress has not spoken clearly on the issue in the relevant statute, we will give Chevron deference to the agency’s reasonable statutory interpretation that aliens subject to reinstated removal orders are ineligible to apply for asylum.

I. Background

A. Factual Background

In March 2014, Cazun fled her native Guatemala following threats against her life by unknown persons. Upon arrival in the United States, Cazun was detained by immigration authorities. Because Cazun expressed a fear of returning to Guatemala, an asylum officer interviewed her. The asylum officer made a negative credible fear determination, and an Immigration Judge (“IJ”) affirmed that decision. Thus, an expedited order of removal was issued to Cazun, and she returned to Guatemala.

Upon Cazun’s return to Guatemala, her circumstances grew more dire. The head of a drug trafficking gang threatened, tortured, and sexually assaulted her. To escape, Cazun fled again to the United States, this time with her two-year-old son. On her attempted re-entry, Cazun was detained by Border Patrol.

After determining that Cazun had already been removed from the United States once before, the Department of Homeland Security (“DHS”) notified Ca-zun that it intended to reinstate her previously entered removal order. Through this reinstatement process, the DHS would simply re-execute her previous removal order and deport her rather than initiating an entirely new removal process. But before deportation, Cazun expressed fear of returning to Guatemala, so she was interviewed by an asylum officer. The asylum officer made. a negative reasonable fear determination, and an IJ affirmed that decision.

Subsequently, but still before deportation, Cazun consulted counsel and urged that she had been unable to reveal the full details of her suffering in her previous interview due to the psychological trauma she had endured in Guatemala. Consequently, she obtained a new interview with an asylum officer. At this interview, Cazun described being sexually assaulted, tortured, and facing threats against her life and the life of her son. The asylum officer concluded that Cazun’s testimony was credible and that it established a reasonable fear of persecution. But because Ca-zun’s previous removal order had been reinstated, she was placed in hearings before an IJ to determine her eligibility for withholding of removal and Convention Against Torture (CAT) protection only.

The IJ granted Cazun withholding of removal and protection under the regulations implementing obligations under the CAT, but would not consider Cazun’s asylum request. He stated that under current statutes and regulations, Cazun was ineligible to apply for asylum due to her reinstated removal order.

Cazun appealed to the BIA, which agreed with the IJ that Cazun was ineligible for asylum. The BIA based its decision on 8 U.S.C. § 1231(a)(5), which states that aliens like Cazun who are subject to a reinstated removal order are “not eligible and may not apply for any relief under [8 U.S.C. Ch. 12].” A.R. 3. The BIA further cited applicable regulations of the Attorney General that allow “an alien fearing persecution to apply for withholding of removal only.” A.R. 3. (emphasis added) (citing 8 C.F.R. §§ 1208.31(e), 1208.31(g)(2); 1241.8(e)). Cazun timely appealed the BIA’s ruling to this Court, urging that she is eligible for asylum pursuant to the asylum provision, and it should apply notwithstanding her reinstated removal order.

B. Statutory Background

The issue presented by Cazun’s appeal arises from two separate but related statutes: 8 U.S.C. § 1158, the asylum statute, and 8 U.S.C. § 1231(a)(5), the reinstatement bar.

i. Asylum Statute

The initial version of § 1158 was enacted by the Refugee Act of 1980, affording “an alien” the right to apply for asylum “irrespective of immigration status.” See Refugee Act of 1980, Pub. L. No. 96-212, § 208 (codified as amended at § 1158). “The purpose of the [Act] ... was ‘to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States.’ ” Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir. 1996) (quoting Pub. L. No. 96-212, tit. I, § 101(b), 94 Stat. 102 (1980)).

In 1996, Congress altered the statutory scheme, enacting the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, Div. C, 110 Stat. 3009. IIRIRA preserved and in many ways replicated the initial version of § 1158. In its updated form, § 1158(a)(1) instructed 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.”

Despite this seemingly broad guarantee, Congress carved out exceptions for several classes of aliens making them statutorily ineligible to apply for asylum: those who could be safely resettled into another country, see § 1158(a)(2)(A), those who failed to timely apply, see § 1158(a)(2)(B), and those previously denied asylum, see § 1158(a)(2)(C). However, even in the face of these exceptions, § 1158(a)(2)(D) created an exception to the exceptions: despite a previous denial of asylum or tardy asylum application, an alien could apply if she could demonstrate “changed circumstances which materially affect [her] eligibility for asylum or extraordinary circumstances relating to the delay in filing an application.”

ii. Reinstatement

IIRIRA also altered the effect of a previously entered removal order. Before IIR-IRA, previous removal orders were not reinstated against aliens who re-entered the country. Instead, these aliens were placed in the same removal proceedings as other aliens who had not previously been removed. Reinstatement of a previous removal order was reserved for only a subset of individuals. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33-35, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006).

But in IIRIRA, Congress hardened the effect of a reinstated removal order. As the Supreme Court noted, in enacting this provision Congress “toed a harder line” with respect to reinstatement. Id. at 34, 126 S.Ct. 2422. The Act broadened the applicability of reinstatement, and it “explicitly insulate[d] the 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.

The new reinstatement provision reads: If 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 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 the reinstatement bar.

iii. Attorney General’s Interpretation of the Statutory Scheme

Three years after Congress enacted IIRIRA, the Attorney General promulgated 8 C.F.R. § 1208.31(e), instructing 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 ... [rjeferral to [an] Immigration Judge, for full consideration of the request for withholding of removal only.” (emphasis added).

The Attorney General clarified that under the regulations aliens subject to reinstated removal orders were “ineligible for asylum” but “may ... be entitled to withholding of removal” or CAT protection. Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999). This distinction between withholding of removal and asylum for those subject to reinstated removal orders “allow[ed] for the fair and expeditious resolution of ... claims without unduly disrupting the streamlined removal process applicable to ... aliens [subject to reinstated removal orders].” Id. at 8479. In brief, the Attorney General determined that the statutory scheme forbade aliens subject to reinstated removal orders from applying for asylum, but allowed such aliens withholding of removal. The BIA relied on this interpretation in deciding Cazun’s case.

II. Discussion

The issue before us is whether an alien whose removal order is reinstated is statutorily ineligible to apply for asylum. We must reconcile two apparently conflicting provisions of the INA, both enacted on the same day. On the one hand, § 1158(a)(1) allows “any alien” “irrespective of such alien’s status” to apply for asylum. On the other hand, § 1231(a)(5) instructs that an alien subject to a reinstated removal order “is not eligible and may not apply for any relief under this chapter.”

We are not the first court to consider the effect of a reinstated removal order. To date, four Courts of Appeals have addressed this question. Each has concluded that individuals subject to reinstated removal orders may not apply for asylum, though the courts have parted ways in their rationales. Three of these courts have found the reinstatement bar clear on its face. But these courts “mention[ ] [the asylum provision] only in passing, or not at all.” Only the Ninth Circuit explicitly considered the interplay between the asylum provision and the reinstatement bar. Following the analytic path set forth in 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), that Court determined that the statutory scheme was ambiguous, and that the Attorney General’s interpretation forbidding aliens subject to reinstated removal orders from applying for asylum to be reasonable. Perez-Guzman v. Lynch, 835 F.3d 1066, 1077, 1082 (9th Cir. 2016), reh’g and reh’g en banc denied (9th Cir. 2017). We agree.

Using the same Chevron framework that the Ninth Circuit employed, we first assess whether “Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If we can discern congressional intent using the plain text and traditional tools of statutory construction, our inquiry ends: we give effect to Congress’s intent. See id. at 843, 104 S.Ct. 2778. If, however, the statute remains ambiguous, we defer to the agency’s reasonable interpretation of the statutory scheme, even if the interpretation is not what we would otherwise choose. See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).

A. Chevron Step One

In discerning congressional intent, we look first to the plain text of the statute. CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277, 283, 131 S.Ct. 1101, 179 L.Ed.2d 37 (2011). In this case, the text does not indicate clear and unambiguous congressional intent. Both provisions at play use broa,d language to characterize their mandates: that “any” alien can apply for asylum, § 1158(a)(1), but that aliens subject to reinstated removal orders are barred from “any relief,” § 1231(a)(5). “Read naturally, the word ‘any1 has an expansive meaning....” United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). It means “one or some indiscriminately of whatever kind.” Id. (quoting Webster’s Third New International Dictionary 97 (1976)).

But despite use of the word “any,” neither section is as broad as it first seems. As to § 1158(a)(1), despite claiming that “any” alien may apply for asylum, the section then lists specific groups of aliens who may not in fact apply. § 1158(a)(2)(A)-(C). So, it is not “any” alien who can apply, but only certain classes of aliens. As to § 1231(a)(5), although the section bars “any relief’ under the chapter, precedent and the Attorney General’s own interpretation clarify that withholding from removal and CAT protection—both forms of relief—are actually still available to individuals in reinstatement proceedings. See Femandez-Vargas, 548 U.S. at 35 n.4, 126 S.Ct. 2422; 8 C.F.R. §§ 1208.31(e), 1208.16(c)(4). Here, the plain language of the statute offers no insight into Congress’s intent as to how we should interpret the interplay between the two sections at issue.

Nor can we discern Congress’s clear intent using “traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n.9, 104 S.Ct. 2778. To start,' both sides rely on the canon generalia specialibus non derogant, that the specific governs the general in interpreting a statutory scheme. See Nitro-Lift Techs., L.L.C. v. Howard, 568 U.S. 17, 133 S.Ct. 500, 504, 184 L.Ed.2d 328 (2012). The logic behind this canon is quite simple: when there are two conflicting provisions, we can assume that “Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions.” Radlax Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 132 S.Ct. 2065, 2071, 182 L.Ed.2d 967 (2012) (quoting Varity Corp. v. Howe, 516 U.S. 489, 519, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996) (Thomas, J., dissenting)). Thus, the more specific section targets the specific question at issue and that section should control our interpretation.

Here, however, the canon does not help us resolve the question definitively, because each subsection is more specific in certain respects and more general in others. Section 1158(a)(1) speaks with specificity as to a type of relief Cazun seeks: asylum. But § 1231(a)(5) speaks with specificity as to a subset of aliens: those, like Cazun, subject to reinstated removal orders. While Judge Hardiman makes several persuasive arguments as to why he finds the reinstatement bar the more specific provision, Concurrence Typescript at 6-9, we are not convinced that this canon renders the statutory scheme clear at Chevron’s first step, especially given the asylum bar’s explicit applicability to aliens “irrespective of [their] status.”

Nor does legislative history clarify Congress’s intent on the matter. “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.” Perez-Guzman,'835 F.3d at 1076. Because Congress enacted the two conflicting provisions on the same day, cherry picking statements from legislative history tends to ignore congressional intent on the opposing provision. Legislative history is of little use in helping us resolve this question.

Cazun offers a number of other arguments to support her position that the statute is clear on its face. None are convincing. First, she emphasizes a minor textual change Congress made when it re-crafted the INA in 1996. The original text of the asylum provision had stated that “an” alien could apply for asylum irrespective of status; the updated text provided that “any” alien could do so. Compare § 1158(a) (1980), with id. § 1158(a)(1) (1996). We think this change is of little interpretive significance, because on the same day that Congress made the change it forbade those subject to reinstated removal orders from obtaining “any” relief. Certainly this minor alteration does not clearly express Congress’s intent on the matter.

Second, Cazun suggests that making aliens subject to reinstated removal orders ineligible for asylum risks running afoul of treaty obligations under the United Nations Protocol Relating to the Status of Refugees (“Protocol”), or that treaty obligations should at least inform our reading of the statute. But, given the availability of withholding of removal and CAT protection, there is no treaty obligation in conflict with the Government’s reading. See Ramirez-Mejia v. Lynch, 813 F.3d 240, 241 (5th Cir. 2016) (denying rehearing en banc).

Finally, Cazun argues that our reasoning in Marincas v. Lewis, 92 F.3d 195 (3d Cir. 1996), counsels that we find the INA to be clear and unambiguous here. In that case, we considered whether the Refugee Act of 1980 required that stowaways receive the same asylum proceedings as non-stowaway aliens. One provision of the INA commanded that the Attorney General establish “a procedure”—singular—for aliens to apply for asylum “irrespective of [the] alien’s status.” § 1158(a) (1980). But an earlier-enacted provision instructed that stowaways, a specific class of aliens, were not entitled to an exclusion hearing, where the asylum determination took place. Ma-rineas, 92 F.3d at 198. Thus, the BIA reasoned such stowaway applicants for asylum were not entitled to the same adversarial adjudication before an IJ that other aliens received at an exclusion hearing. See id. at 199-200. Instead, the BIA concluded that stowaways applying for asylum should receive only a non-adversarial interview before an INS employee. See id. at 199-200.

We rejected the BIA’s distinction between stowaways and other aliens with respect to asylum proceedings. We found that, regarding the question we faced there, “the plain meaning of the Refugee Act is clear and unambiguous” at the first step of Chevron. Id. at 200. Because the statute required “a uniform” procedure for an alien to apply for asylum “irrespective of such alien’s status,” we found that Congress did not intend to allow one procedure for stowaways and another for other aliens. See id. at 201. However, we noted that stowaways’ hearings could be limited to the issue of asylum, and that their hearings need not reach any other exclusion issue.

Cazun likens her case to Marineas: one provision of the INA singles out her group—those subject to reinstated removal orders—for less favorable immigration procedures than other aliens, while another provision envisions equal asylum procedures for all aliens.

Cazun’s analogy fails, however, for several reasons. First, as Cazun herself agreed at oral argument, in Marineas we considered a different statute altogether than the one we analyze today. There, we interpreted the Refugee Act of 1980, not IIRIRA. Although the language of the asylum provision remained largely unchanged by IIRIRA, the statutory scheme as a whole shifted dramatically. Therefore, Ma-rineas ⅛ interpretation of the asylum provision enacted in 1980 does little to clarify what Congress intended when it enacted IIRIRA, which included the broad reinstatement bar, sixteen years later.

Second, even setting this difference aside, common principles of statutory interpretation distinguish Cazun’s case from Marineas. When interpreting statutes, we work to “fit, if possible, all parts [of a statute] into an harmonious whole.” Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959)). In Marin-eas, we were able to so harmonize the statutory scheme without doing serious damage to either of the provisions at issue. For although we held that stowaways were entitled to the same adversarial hearing as other aliens, we nonetheless reasoned that the stowaway’s hearing could be limited to the issue of asylum eligibility: consistent with the stowaway provision’s dictates, the asylum hearing need not reach any other issue of exclusion. Marincas, 92 F.3d at 201. Thus, our ruling harmonized the seemingly contradictory provisions, and we were able to preserve the “basic thrust” of the stowaway provision. Id. Here, Cazun offers no similar way for us to preserve both § 1158(a) and § 1231(a)(5).

Finally, at the core of our reasoning in Marineas was a commitment to discerning congressional intent. We found strong support for the idea that “Congress clearly intended a single, uniform procedure be established” with respect to asylum proceedings. Id. So when we interpreted the weighty asylum provision alongside a somewhat cursory, technical provision regarding stowaways, it was not difficult to conclude that Congress intended that the asylum provision should control. But here, we must square the asylum provision that affords relief with the reinstatement bar that takes such relief away. We know that Congress intended the reinstatement bar to be taken seriously, see Fernandez-Vargas, 548 U.S. at 33-35, 126 S.Ct. 2422, and that the provision should be given considerable weight in interpreting the provisions. Thus we cannot say, as we did in Marineas, that Congress clearly intended that one provision or the other should control. Because of these differences, we cannot reconcile the provisions so as to find the INA “clear and unambiguous” here.

The Attorney General’s arguments that the text is clear and unambiguous fare no better than Cazun’s. For while the Govern-' ment focuses on language barring aliens from “any relief,” it ignores the affirmative asylum provision, which applies on its face to “any alien ..., irrespective of such alien’s status.” Accordingly, because the statute does not clearly indicate congressional intent, we proceed to the second step of Chevron.

B. Chevron Step Two

At the second step of Chevron, we defer to the agency’s interpretation of the statute as long as that reading is reasonable. Brand X Internet Servs., 545 U.S. at 980, 125 S.Ct. 2688. Deference to the executive branch is “especially appropriate in the immigration context” where officials must make complex policy judgments. See Aguirre-Aguirre, 526 U.S. at 425,119 S.Ct. 1439; Yusupov, 518 F.3d at 197. We must therefore decide whether 8 C.F.R. § 1208.31(e)—which prevents individuals subject to reinstated removal orders from applying for asylum—is a reasonable interpretation of the statutory scheme.

It was reasonable for the agency to conclude that the statutory reinstatement bar foreclosing “any relief under this chapter” means just what it says: no asylum relief is available to those subject to reinstated removal orders. Certainly this interpretation was not unreasonable: two Courts of Appeals have explicitly adopted the same interpretation without even finding the statutory scheme ambiguous. Jimenez-Morales, 821 F.3d at 1310; Ramirez-Mejia, 794 F.3d at 489-91.

Even independent of these courts’ conclusions, at least four factors lend support to the agency’s interpretation. First, as discussed at length in Judge Hardiman’s concurrence, the reinstatement bar is, at least in some respects, more specific than the asylum provision. It applies to a far narrower group of aliens—those subject to reinstated removal orders—than the asylum provision, which applies to all aliens. From a purely textual standpoint, this in and of itself might compel us to agree with the Attorney General were we forced to decide the issue without resorting to Chevron.

Second, the Supreme Court has already emphasized congressional intent as to IIR-IRA in Fernandez-Vargas, 548 U.S. at 33, 126 S.Ct. 2422: Congress meant to strengthen the effect of the reinstatement bar. See also H. R. Rep. No. 104-469(1), at 155 (1996) (“[T]he ability to cross into the United States over and over with no consequences undermines the credibility of our efforts to secure the border.”). The agency’s interpretation is faithful to that intent. For aliens who re-enter our shores illegally despite previous removal and instructions not to return, the Attorney General’s interpretation takes asylum off the table while allowing other forms of relief that fulfill humanitarian commitments.

Third, the Supreme Court has emphasized that the Attorney General can deny asylum in the agency’s discretion even when an alien meets the criteria for asylum. Cardoza-Fonseca, 480 U.S. at 423-24, 107 S.Ct. 1207; see also § 1158(d)(5)(B). It would be strange to find that granting asylum is discretionary, but that the Attorney‘General must allow Cazun to apply, even in the face of contradictory statutory text.

Finally, the agency has expertise making complex policy judgments related to asylum, withholding of removal, and CAT protection. Deference regarding questions of immigration policy is especially appropriate. See Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439.

All this is not to say that the agency’s position is flawless. To start, the Attorney General’s interpretation bars from asylum those like Cazun whose compelling claims arose after their first removal order was issued. This is at least in tension with the text of § 1158(a)(2)(D), which allows aliens who can demonstrate changed circumstances to apply for asylum even when a previous application was rejected.

Further, the Attorney General’s reading seems counterintuitive as applied to someone in Cazun’s situation. An alien like Ca-zun who complies with a removal order is barred from asserting an asylum claim on illegal reentry. But aliens ordered to be removed who evade deportation are not similarly barred: those aliens never left the country, so their first removal order remains in effect and is not subject to reinstatement. Thus, such non-compliant aliens avoid the reinstatement bar and may apply for asylum in the face of changed circumstances, while those who comply with the removal order but reenter illegally cannot.

However, these points are not fatal to the Government’s case. For while the Government’s reading leaves vulnerable those like Cazun whose claims for asylum arose after they were previously removed, as the Government urged in briefing and oral argument, reinstatement of a removal order is not automatic. See § 1231(a)(5); Perez-Guzman, 835 F.3d at 1081 (“[T]he government has discretion to forgo reinstatement and instead place an individual in ordinary removal proceedings.” (citing Villa-Anguiano v. Holder, 727 F.3d 873, 878 (9th Cir. 2013))). The agency may rely on this flexibility when deciding whether to reinstate a previous removal order. Exercising this discretion in cases like Ca-zun’s speaks to the “wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress.” Chevron, 467 U.S. at 866, 104 S.Ct. 2778. As a result, we will defer to the agency’s expertise on complex matters of immigration policy such as the one before us today. See Aguirre-Aguirre, 526 U.S. at 425, 119 S.Ct. 1439.

III. Conclusion

In summary, the agency’s interpretation of the ambiguous statute is reasonable. When Congress enacted IIRIRA, it set the agency adrift between an interpretive Scylla and Charybdis. No reading—including Cazun’s—could harmonize the statutory scheme perfectly. But because the Attorney General’s reading, bolstered by its own expertise, is reasonable, we will defer to it and uphold the decision of the BIA.

HARDIMAN, Circuit Judge,

concurring in the judgment.

Under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we do not defer to an agency’s construction of a statute when “Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. At issue in this appeal is whether Yoselin Cazun may apply for asylum even though she is the subject of a reinstated removal order. To answer that question we must analyze two provisions of the Immigration and Naturalization Act: 8 U.S.C. § 1158 (the “asylum provision”) and § 1231(a)(5) (the “reinstatement bar”). The asylum provision permits “[a]ny alien” to apply for asylum, while the reinstatement bar precludes aliens subject to reinstated removal orders from applying for “any relief.” Based on the text, history, and structure of the statute, I would hold that the reinstatement bar precludes Cazun from applying for asylum. This interpretation fulfills our duty to “fit, if possible, all parts [of this statute] into an harmonious whole.” FDA v. Brovm & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (citation omitted).

Three of our sister courts agree that the INA precludes aliens like Cazun from applying for asylum. See Jimenez-Morales v. Att’y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016) (holding an alien with a reinstated removal order “is not eligible for and cannot seek asylum”); Ramirez-Mejia v. Lynch, 794 F.3d 485, 490 (5th Cir. 2015) (holding the reinstatement bar, “read plainly, broadly denies all forms of redress from removal, including asylum”), pet’nfor reh’g en banc denied, 813 F.3d 240 (5th Cir. 2016); Herrera-Molina v. Holder, 597 F.3d 128, 138-39 (2d Cir. 2010) (accepting regulations applying restrictions to aliens subject to reinstatement removal orders as correct statutory interpretations); see id. at 137 (discussing “the availability of suspension of deportation or asylum” and noting “the terms of [the reinstatement bar] preclude such relief’). But see Perez-Guzman v. Lynch, 835 F.3d 1066, 1076-77 (9th Cir. 2016) (finding the statute ambiguous and deferring to the Agency). And while I agree with the Ninth Circuit in Perez-Guzman and with the Majority that the. Agency’s interpretation here is reasonable, I would join the Eleventh, Fifth, and Second Circuits in finding that it is compelled by the statute.

I

The provisions at issue in this appeal were codified in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009 (1996). IIR-IRA recodified the asylum provision at § 1158 and enacted for the first time the. reinstatement bar codified at § 1231(a)(5), which prohibits illegal reentrants from applying for “any relief’ under the statute.

The asylum provision as recodified in IIRIRA retained its original scope and was reformatted in two sections. One section provides that “[a]ny alien ..., irrespective of such alien’s status, may apply for asylum” if present in the country, and the other section lists some exceptions to the general provision. § 1158(a)(l)-(2).

IIRÍRA also implemented a more efficient process for the reinstatement of removal orders. Before 1996, those who entered the United States illegally after having been deported typically were placed in a new round of regular deportation proceedings. Fernandez-Vargas v. Gonzales, 548 U.S. 30, 33-34, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). IIRIRA streamlined the system by reinstating pri- or orders of removal as of their original start date, thus hastening the removal process. As such, aliens with reinstated orders may be removed “at any time after the reentry,” without new administrative hearings or any opportunity for review. § 1231(a)(5). Most important for purposes of this appeal, reinstated orders disqualify those who reenter after prior removal from obtaining “any relief under this chapter.” Id.

As the Supreme Court noted, the reinstatement bar “toed a harder line” by “applying] to all illegal reentrants.” Fernandez-Vargas, 548 U.S. at 34-35, 126 S.Ct. 2422 (emphasis added). This “harder line,”- id. at 34, 126 S.Ct. 2422, punishes and deters the criminal act of reentering the country illegally, see 8 U.S.C. § 1326. See generally In re Briones, 24 I. & N. Dec. 355, 370-71 (B.I.A.' 2007) (“[0]ne of the chief purposes of the IIRIRA ... was to overcome the problem of recidivist immigration violations by [inter alia] escalating the punitive consequences ... of illegal reentry.” (citing IIRIRA §§ 105(a)(2), 301(b)(1), 303(a), 305(a)(3), (b)(3), 324(a), 326, 332, 353(b), which “expedite the detection, deterrence, and punishment of recidivist immigration violators”)).

The Immigration and Naturalization Service implemented the reinstatement bar by promulgating regulations that established expedited removal proceedings for illegal reentrants subject to a prior removal order, 8 C.F.R. § 241.8(a), (c), and precluded those aliens from filing asylum • applications, id. § 208.31(e) (allowing reasonable fear proceedings “for full consideration of the request for withholding of removal only” (emphasis added)).

II

At Chevron Step One, we use “traditional tools of statutory construction” to ascertain whether “Congress had an intention on the precise question.” Hanif v. Att’y Gen., 694 F.3d 479, 483 (3d Cir. 2012) (citation omitted). In doing so, we “consider the text and structure of the statute in question.” United States v. Geiser, 527 F.3d 288, 292 (3d Cir. 2008).

Cazun and the Government agree that the statute is clear, but they disagree about whose position it supports. Cazun . claims she should prevail because the asylum provision states that “[a]ny alien” may apply for asylum, “irrespective of such alien’s status.” 8 U.S.C. § 1158(a)(1). For its part, the Government argues that Ca-zun is ineligible for asylum because she is subject to a reinstated removal order and the reinstatement bar says she is “not eligible and may not apply for any relief’ under Chapter 12 of Title 8 of the United States Code, which includes the asylum provision. 8 U.S.C. § 1231(a)(5).

We previously found both sections at issue to be clear when read independently. We held in Marineas v. Lewis that “under the plain meaning of [the asylum provision], Congress clearly and unambiguously intended that the Attorney General establish a uniform asylum procedure that is to be applied irrespective of an alien’s status.” 92 F.3d 195, 201 (3d Cir. 1996) (disallowing unequal procedures for alien stowaways). Marineas does not control this appeal, however. As my colleagues note, Maj. Op. at 258-59, Marineas did not analyze the reinstatement bar because it had not yet taken effect. After our decision in Marineas, in a case dealing with the reinstatement bar, we assumed in dicta that “asylum is not available to aliens who face reinstatement of a prior order of removal [under] 8 U.S.C. § 1231(a)(5).” Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 680 (3d Cir. 2015). Because neither Marineas nor Gonzalez-Posadas analyzed the interplay between the asylum provision and the reinstatement bar, this appeal requires us for the first time to “attempt to harmonize” two statutory provisions that seem, at first blush, to conflict with one another. N.J. Air Nat’l Guard v. Fed. Labor Relations Auth., 677 F.2d 276, 282 (3d Cir. 1982); see also Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (“The courts are not at liberty to pick and choose among congressional enactments, and ... it is the duty of courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.”).

A

Our effort to harmonize these provisions begins with the text of the statute. CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S. 277, 283, 131 S.Ct. 1101, 179 L.Ed.2d 37 (2011). As the Majority notes, both provisions use the word “any,” which typically has an “expansive meaning.” Maj. Op. at 255 (citing United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997)). Yet “neither section is as broad as it first seems.” Id.

After stating that any alien, irrespective of status, may apply for asylum, the asylum provision then lists several exceptions preventing certain aliens from doing so in specific circumstances. See § 1158(a)(2). It is thus clear that some aliens may not apply for asylum. In a similar way, after the reinstatement bar states that aliens with reinstated removal orders may not apply for any relief, the statute goes on to allow them to seek withholding of removal to certain countries. See § 1231(b)(3)(A). Thus, that section does not bar all types of relief. So neither provision is absolute, and both may be limited by other provisions. Therefore, we must turn to canons of construction and the statute’s structure to see whether the two provisions can be harmonized.

B

Cazun and the Government both invoke the “specificity” canon of statutory construction. Maj. Op. at 256. Simply put, this means that a “narrow, precise, and specific” statutory provision is not overridden by another provision “covering a more generalized .spectrum.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976); see also Anto-nin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 183 (2012) (explaining that because the more specific text “comes closer to addressing the very problem posed by the case at hand[, it] is thus more deserving of credence”).

Instead of challenging this canon of construction, the parties each claim that their favored provision is more specific than the other one. Although both parties provide reasonable arguments, I am convinced that the reinstatement bar is more specific than the asylum provision. While the asylum provision establishes general rules for asylum applications, the reinstatement bar deals specifically with a particular subset of illegal aliens: those who are subject to reinstated removal orders. As such, it is most naturally read as an exception to the “general permission,” Scalia & Garner, supra, at 183, to apply for asylum. By making relief unavailable to certain aliens, the reinstatement bar nullifies every relief provision to which it applies with respect to certain persons no longer eligible for that relief.

Cazun argues that the reinstatement bar is a “blunt instrument” that is less detailed, and thus less specific, than the asylum provision. Cazun Br. 17-18.1 disagree. The reinstatement bar’s application to all of Chapter 12 does not defeat its specificity. When Congress raised the age at which Americans could receive full Social Security benefits, see Social Security Amendments of 1983, Pub. L. No. 98-21, § 201, 97 Stat. 65 (1983) (codified at 42 U.S.C. § 416(0(1)), the law affected millions of people. But its broad applicability did nothing to dilute its specificity. In a similar way, the reinstatement bar applies to a large but specific group of people (aliens with reinstated removal orders) and deprives them of relief for which they would otherwise qualify—in this case, asylum.

As the Majority suggests, the asylum provision can also be seen as specific insofar as it deals with just one of many types of relief. Maj. Op. at 256; see also Perez-Guzman, 835 F.3d at 1075-76. But focusing the specificity inquiry on the type of relief available as opposed to the type of person affected creates tensions in the statute that my interpretation does not.

First, the reinstatement bar creates an exception from the general availability of multiple forms of relief (of which asylum is one), whereas the asylum provision simply establishes rules for asylum applications and makes them generally available to “[a]ny alien,” subject to exceptions. If asylum (and every other form of relief) were deemed more specific than the reinstatement bar, all forms of relief found in Chapter 12 would be unaffected by the reinstatement bar, essentially nullifying that section in violation of another canon of construction: “the cardinal principle that we do not cripple statutes by rendering words therein superfluous.” Rojas v. Att’y Gen., 728 F.3d 203, 209 (3d Cir. 2013); see also id. at 210 (“It is our duty to give effect, if possible, to every clause and word of a statute.” (quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001))).

Second, creating a requirement that all forms of relief in Chapter 12 must cross-reference the reinstatement bar in order for it to apply, as Cazun recommends, would run afoul of the statutory scheme. Cazun claims that because the asylum provision enumerates some exceptions, see § 1158(a)(2), (b)(2)(A), but does not reference the reinstatement bar among them, Congress did not intend to make illegal reentrants ineligible for asylum. But if the reinstatement .bar applied only to types of relief that cross-referenced it, it would never apply. See Gov’t Br. 29 (noting that none of the forms of relief under the INA specifically refers to reinstatement of removal). Such an interpretation not only would render the reinstatement bar superfluous, it would also contravene the Supreme Court’s observation that the reinstatement bar “generally forecloses discretionary relief from the terms of the reinstated [removal] order,” Fernandez-Vargas, 548 U.S. at 35, 126 S.Ct. 2422.

Indeed, the Supreme Court already recognized that Congress limited at least some types of relief via the reinstatement bar when it “held that aliens subject to reinstatement orders are ineligible for adjustments of status[ ] ... [even though] the adjustment-of-status provision[ did] not mention reinstatement orders.” Ramirez-Mejia, 794 F.3d at 490 (describing Fernandez-Vargas, 548 U.S. at 46-47, 126 S.Ct. 2422, and 8 U.S.C. § 1255 (adjustment-of-status provision)). It so held despite the fact that the adjustment-of-status provision—like the asylum provision—does not reference the reinstatement bar among its other enumerated exceptions. Provisions like the reinstatement bar, which by their terms create exceptions from many other sections, need not list every Section to which they apply, nor must they be explicitly cross-referenced in the excepted provisions. Congress may choose to limit one section of a statute via another section without an explicit cross-reference to or amendment of the section to be limited. See id. (“The judiciary’s role is not to question the method of an amendment but only to interpret its effect.”).

C

Cazun’s remaining counterarguments are also unavailing.

The reinstatement bar speaks to the more specific problem Congress meant to address even if Cazun is correct that in some years those who are subject to reinstatement removal orders outnumber those who apply for asylum. As with the Social Security example mentioned previously, the numerosity of the class sheds no light on the specificity of the statute. Moreover, not every alien who submits an asylum application is subject to a reinstated removal order, which is reflected by every successful asylum applicant since 1996. Thus, there are necessarily fewer asylum applications from aliens with reinstated orders than the total number of asylum applications. The class of aliens who seek asylum despite reinstated removal orders, then, is still narrower than the class of aliens who seek asylum generally.

The policy concerns created by Cazun’s changed circumstances should not sway our opinion either. Congress decided to “toe[ ] a harder line” with respect to “illegal reentrants,” Fernandez-Vargas, 548 U.S. at 34-35, 126 S.Ct. 2422, and to discourage initial illegal entry by removing some options upon illegal reentry. And the fact that withholding of removal is available to Cazun and those like her mitigates somewhat the concerns about “dire humanitarian consequences,” Perez-Guzman, 835 F.3d at 1081. And as my colleagues note, asylum seekers may declare themselves at the border without illegally reentering the country after they have been removed. See Maj. Op. at 261 n.20.

Congress’s focus on illegal reentry would also explain the disparate treatment of aliens successfully removed previously (even if changed circumstances result) from those who have not yet been removed. See Maj. Op. at 260-61. It is only the former group that commits the action which triggers reinstated removal orders: “reenter[ing] the United States illegally after having been removed or having departed voluntarily.” § 1231(a)(5).

Ill

Because the statute is not “silent or ambiguous” as to whether aliens with reinstatement orders of removal may apply for asylum, I would enforce the statute as written, rather than defer to the Agency’s interpretation. Chevron, 467 U.S. at 843, 104 S.Ct. 2778. Section 1231(a)(5)—the reinstatement bar—specifically prevents the subclass of aliens of which Cazun is a member from applying for any relief under Chapter 12 of Title 8, which includes asylum. Nothing about this section is ambiguous, nor is there an implication that Congress intended a “legislative delegation to [the Agency] on [the] particular question” of the effect of reinstated removal orders. Chevron, 467 U.S. at 844, 104 S.Ct. 2778. Unlike the “definitional issue” in Chevron, id. at 858,104 S.Ct. 2778, in which the lack of definition of “stationary source” meant that “Congress did not actually have an intent regarding the applicability of [the relevant environmental] concept to the permit program,” id. at 845, 104 S.Ct. 2778, Congress here has expressed its intent to disqualify illegal reentrants from applying for asylum, among other forms of relief.

The Majority opinion eloquently describes the facts, the question of statutory interpretation presented, and the various legal arguments made by both sides. I agree with my colleagues that the Agency’s interpretation of IIRIRA is reasonable, and would join them in full if I believed this question should be decided under Step Two of Chevron. I concur only in the judgment, however, because I think we should end our analysis at Step One.

It is true that the apparent conflict in this case presents a difficult question of statutory interpretation, but our traditional tools of statutory construction answer it. Unless we find silence or ambiguity after employing these tools, we must answer even difficult interpretative questions. See Scialabba v. Cuellar de Osorio, — U.S. -, 134 S.Ct. 2191, 2214, 189 L.Ed.2d 98 (2014) (Roberts, C.J., concurring in judgment) (“[D]eference is [not] warranted because of a direct conflict between [two] clauses.... [Statutory] conflict is not ambiguity....”). The reinstatement bar singles out a subclass of aliens— illegal reentrants subject to reinstated removal orders—and deprives them of various forms of relief available under Chapter 12, including asylum.

More than merely reasonable, the Agency’s view that Cazun is ineligible for asylum is compelled by the statute. For that reason, I concur in the judgment.

      . The drug trafficker apparently targeted Ca-zun because of a debt owed him by the father of Cazun’s child. Cazun was not married to the father of her child, but she lived with him.

      . Although an asylum officer conducted the interview, the only purpose of the interview was to determine Cazun's eligibility for withholding of removal and protection under the Convention Against Torture, not her eligibility for asylum.

      . Aliens may prefer to seek asylum rather than withholding of removal or CAT protection for several reasons. First, unlike other forms of relief, asylum provides a pathway to lawful permanent resident status and, ultimately, citizenship. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.6, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Second, withholding of removal and CAT protection only prevent removal of an alien to the specific country from which she fled; asylum prevents removal from the United States altogether. See id. Third, withholding of removal status comes with several restrictions, including potential limitations on the ability to work and travel internationally. 8 C.F.R. § 274a.l2(a)(10); 8 C.F.R. § 241.7.
      Finally, the standard for asserting a successful asylum claim is less demanding than the standard for withholding of removal or CAT protection. Compare Cardoza-Fonseca, 480 U.S. at 430-32, 107 S.Ct. 1207 ("well-founded fear” standard applies to asylum applications), with 8. C.F.R. § 1208.16(b)(l)(iii) (applicant for withholding of removal must prove she "more likely than not” will suffer harm if returned to native country), and 8 C.F.R. § 1208.16(c)(2) (applicant for CAT protection must establish she "more likely than not” would be tortured if returned to native country).

      .Cazun’s young son, who was not subject to a reinstated removal order, was granted asylum.

      . For ease of reference, unless otherwise noted, statutory sections referenced in the remainder of this opinion come from Title 8 of the United States Code.

      . Congress had previously amended the statute in 1990 to forbid individuals convicted of aggravated felonies from being granted asylum. See Immigration Act of 1990, Pub. L. No. 101-649, § 515.

      .Though the regulation was originally promulgated as 8 C.F.R. § 208.31(e), it was reco-dified in 2003 as 8 C.F.R. § 1208.31(e). Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 9824 (Feb. 28, 2003). We use this updated numbering throughout the opinion for consistency.

      . The Attorney General identified § 1158 as one of the statutes giving the agency authority to promulgate regulations to govern asylum and withholding procedures. Id. at 8487.

      . We have jurisdiction pursuant to § 1252. The Board’s jurisdiction arose under 8 C.F.R. §§ 1003.1(b)(3) & 208.31(e) (2014).

        . Perez-Guzman v. Lynch, 835 F.3d 1066, 1082 (9th Cir. 2016) (statutory scheme was ambiguous and Chevron deference was warranted because the Attorney General’s interpretation was reasonable); Jimenez-Morales v. U.S. Att’y Gen., 821 F.3d 1307, 1310 (11th Cir. 2016) (plain text of § 1231(a)(5) supported conclusion that aliens subject to reinstated removal orders cannot apply for asylum); Ramirez-Mejia v. Lynch, 794 F.3d 485, 491 (5th Cir. 2015), reh’g en banc denied, 813 F.3d 240 (5th Cir. 2016) ("Section 1231(a)(5)’s plain language, relevant regulations, and analogous case law all compel the conclusion that aliens whose removal orders are reinstated may not apply for asylum.”); Herrera-Molina v. Holder, 597 F.3d 128, 138— 39 (2d Cir. 2010) (plain text, Attorney General’s regulations, and precedent all supported conclusion that aliens subject to reinstated removal orders could not apply for asylum).

      . Jimenez-Morales, 821 F.3d at 1310; Ramirez-Mejia, 794 F.3d at 491; Herrera-Molina, 597 F.3d at 138-39 (2d Cir. 2010).

      . Perez-Guzman, 835 F.3d at 1074 (citations omitted).

      . Despite both sides’ arguments to the contrary, neither statute nor caselaw supports any argument that either asylum or withholding of removal is not in fact "relief” in this case. See, e.g., Yusupov v. Att’y Gen. of United States, 518 F.3d 185, 188 n.1 (3d Cir. 2008) (referring to withholding of removal as "relief”); Ghebrehiwot v. Att’y Gen. of United States, 467 F.3d 344, 351 (3d Cir. 2006) (same); Johnson v. Gonzales, 416 F.3d 205, 211 (3d Cir. 2005) (referring to asylum as relief); see also § 1229(a)(c)(7)(C)(ii) (referring to asylum as relief); United States v. Denedo, 556 U.S. 904, 909, 129 S.Ct. 2213, 173 L.Ed.2d 1235 (defining the "familiar meaning” of "relief” as “any 'redress or benefit’ provided by a court” (quoting Black’s Law Dictionary 1317 (8th ed. 2004)))

      . Cazun briefly argues that the rule of lenity, or its immigration corollary, supports her favored interpretation. See Cardoza-Fonseca, 480 U.S. at 449, 107 S.Ct. 1207. But we have never found that such a rule of construction clarifies an ambiguous statute, especially one with two conflicting provisions, such that it does away with the need to proceed to Chevron 's second step. Cf. Babbitt v. Sweet Home Chapters of Cmtys. for Great Ore., 515 U.S. 687, 704 n.18, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995). Indeed, we use the immigration rule of lenity "as a canon of last resort” when interpreting statutory ambiguities. Valansi v. Ashcroft, 278 F.3d 203, 214 n.9 (3d Cir. 2002). "It cannot be the case ... that the doctrine of lenity must be applied whenever there is an ambiguity in an immigration statute because, if that were true, it would supplant the application of Chevron in the immigration context.” Ruiz-Almanzar v. Ridge, 485 F.3d 193, 198 (2d Cir. 2007). To the contrary, deference is especially applicable in the immigration context. See INS v. Aguhre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). We also note that the policy concerns animating the rule of lenity— executive encroachment on legislative powers and notice to defendants accused of crimes, see Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1023 (6th Cir. 2016)—are not implicated in this case.

      . The United States agreed to comply with the substantive provisions of Articles 2 through 34 of the 1951 United Nations Convention Relating to the Status of Refugees ("Convention”) in 1968. Cardoza-Fonseca, 480 U.S. at 429, 107 S.Ct. 1207 (citing 19 U.S.T. 6223, 6259-6276, T.I.A.S. No. 6577 (1968)). The Protocol incorporated the Convention. Marineas, 92 F.3d at 197.

      . Cazun points to three specific Articles from the Protocol to support her proposed interpretation. None convince us as to Congress's clear intent. First, she highlights Article 34, which urges nations to assimilate refugees. But this Article is merely "precatory.” Cardoza-Fonseca, 480 U.S. at 441, 107 S.Ct. 1207.
      Second, she turns to Article 28, which requires signatories to afford refugees travel documents. She contends that the travel restrictions placed on recipients of withholding violate this Article, so she must be granted the right to apply for asylum. But we have noted that the Protocol is "not self-executing, nor does it confer any rights beyond those granted by implementing domestic legislation.” Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005). And even assuming that this Article should influence our interpretation, it does not provide the support Cazun contends. Her reasoning that withholding of removal “effectively trap[s her] within the United States,” Pet. Br. at 33, misstates the relief's effect. As a recipient of withholding of removal and CAT protection, Cazun remains free to leave the United States: she simply cannot return to the United States without approval from immigration authorities.
      Third, Cazun points to Article 31(1), which forbids countries from imposing "penalties” "on account of [an applicant’s] illegal entry or presence.” She argues that the reinstatement bar constitutes such a penalty. Again, even assuming this Article should influence our interpretation, neither the text of the Article nor its history clearly indicates that the reinstatement bar, which does not imprison or fine aliens, is the sort of criminal "penalty” forbidden. See James C. Hathaway, The Rights of Refugees Under International Law, 405, 408, 411 (2005). In short, this non-self-executing treaty provides no basis for finding that Congress spoke clearly on the issue at hand.

      . In addition, two other factors supported our analysis in Marineas that are not at issue today: a concern for basic due process rights once an applicant was entitled to an asylum proceeding, 92 F.3d at 203-04, and the Board’s seemingly inconsistent statutory interpretations, id. at 201-02.

      . As a threshold matter, we reject Cazun's argument that the interpretation does not merit Chevron deference because the agency did not appreciate the statutory ambiguity at issue. She cites out-of-circuit cases for the proposition that an agency failing to appreciate statutory ambiguity deserves no deference. Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier Safety Admin., 471 F.3d 1350 (D.C. Cir. 2006); Cajun Elec. Power Coop., Inc. v. F.E.R.C., 924 F.2d 1132 (D.C. Cir. 1991).
      But even those non-binding cases do not support her position. Despite some language in Cajun Electric Power Coop., Inc. supporting Cazun’s argument, that case involved interpretation of a contract, not a statute. 924 F.2d at 1135. And in Peter Pan Bus Lines, Inc., the agency mistakenly felt compelled to reach the conclusion it did. 471 F.3d at 1354; see also Negusie v. Holder, 555 U.S. 511, 521, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (refusing to apply Chevron deference where agency mistakenly deemed its interpretation "mandated” by precedent). Here, Cazun seems to infer from the Attorney General’s lack of discussion about the asylum statute that the agency felt similarly compelled to arrive at the conclusion it did. But this inference is unsubstantiated. On the contrary, the agency's explanation demonstrated that it relied on its own expertise to balance Congress's goals of efficiency and fairness in the screening process. See 64 Fed. Reg. at 8485.

      . While the Second Circuit concluded in Herrera-Molina that aliens subject to reinstatement removal orders could not apply for asylum, that case did not explicitly interpret the reinstatement bar. 597 F.3d at 138-39.

      . To the extent that prosecutorial discretion is denied to aliens such as Cazun, we note that the reinstatement bar applies only to “an alien who has reentered the United States illegally.” § 1231(a)(5) (emphasis added). Thus, aliens subject to removal orders may continue to apply for asylum by lawfully approaching a port of entry without illegally crossing the border.

      . IIRIRA also consolidated deportation and exclusion proceedings into one "removal” proceeding. See 8 U.S.C. § 1227. The reinstatement provision further streamlines this removal process for aliens with reinstated removal orders.

      . Justice Scalia and Mr. Garner recognize that in some cases, “it is difficult to determine whether a provision is a general or specific one.” Scalia & Garner, supra, at 187. Sometimes two provisions may be seen as more specific each in their own way. See id. at 187-88 (citing Radzanower, 426 U.S. at 159, 96 S.Ct. 1989 (Stevens, J., dissenting)).


source: Caselaw Access Project

author: JORDAN, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellant in 14-4237, 15-1247 & 15-3433 v. Gary S. CARDACI; Beverly M. Cardaci; Ed Wood Custom Drywall, Inc.; Lewis J. Morey; Tri-County Building Supplies, Inc.; Brandi L. Watson Gary S. Cardaci; Beverly M. Cardaci, Appellants in 15-3469
    Nos. 14-4237, 15-1247, 15-3433 & 15-3469
    United States Court of Appeals, Third Circuit.
    Argued November 3, 2016
    (Opinion Filed: May 8, 2017)

      Julie C. Avetta [ARGUED], Michael J. Haungs, Curtis C. Pett, United States Department of Justice Tax Division, 950 Pennsylvania Avenue, N.W., P.O. Box 502, Washington, DC 20044, Counsel for Appellant
    Anthony P. Monzo [ARGUED], Monzo Catanese Hillegass, 211 Bayberry Drive, Suite 2A, Cape May, NJ 08210, Counsel for Appellees
    Before: JORDAN, GREENAWAY, JR., and RENDELL, Circuit Judges.
   OPINION OF THE COURT

JORDAN, Circuit Judge.

The government has been trying to collect unpaid taxes assessed against Gary S. Cardaci, and, to that end, it sought the judicial sale of the home he owns in New Jersey with his wife, Beverly. The United States District Court for the District of New Jersey concluded that a forced sale would be inequitable and instead ordered that Mr. Cardaci make monthly rent payments to the government. Unhappy with that outcome, the government has appealed. The Cardacis, who should have been delighted with the decision, have filed a cross appeal to challenge both the requirement to pay rent and the monthly rental amount. Even though no sale was ordered, the Cardacis also question the authority of the District Court to order a sale. We confirm the District Court’s authority to consider whether the Cardacis’ property should be subject to a forced sale but will vacate and remand for recalculation of Mr. and Mrs. Cardacis’ respective interests in the property and reconsideration of the equitable factors weighing for and against a sale.

I. Background

A. Factual Background

Mr. Cardaci was the owner of Holly Beach Construction Company (“Holly Beach” or “the Company”). In 2000 and 2001, the business began to fail, and, in an effort to shore it up, Mr. Cardaci used approximately $49,600 in taxes withheld from the wages of his employees to pay suppliers and wages rather than payroll taxes. During that two-year period, Mr. Cardaci took approximately $20,000 in salary from Holly Beach. He used that income to support his family, including making mortgage payments and paying private school tuition for one of his sons.

The Company eventually folded and Mr. Cardaci tried unsuccessfully to start other businesses. He has not had a regular income since 2009. On top of those financial frustrations, he also has medical problems that limit his employment options. Since 2005, Beverly Cardaci has been the primary wage earner in the family. She earns about $62,000 a year as a public school teacher.

The Cardacis own property in Cape May County, New Jersey, that they purchased in 1978 as their home. They claim no dependents now, but two of their adult children live in the house with them at least part of each year. Their son Garrett lives there full time with his wife and three children. Garrett earns approximately $37,600 a year. He emerged from bankruptcy a year and a half before the bench trial in this case. He and his wife do not pay rent. Another son, Robert, lives in the house during the summer while he does seasonal work. He earns just under $4,000 a year.

The Cardacis’ house has been their marital domicile continuously since they bought it, and the only mortgage on the property was paid in full in 2009. Mr. Cardaci made the majority of the monthly mortgage payments from 1978 through 2005, but, after that, Mrs. Cardaci was the sole payor. The District Court determined that the house has a fair market value of $150,500. If the house were put to a forced sale, the government would set the minimum bid at 60 percent of the assessed value, which is $90,300.

At the time of the District Court’s order, Mr. Cardaci was fifty-eight and Mrs. Car-daci was sixty-two. Neither party submitted evidence of the Cardacis’ life expectancies, so the District Court, using the Social Security Administration’s Actuarial Life Table, calculated the expectancies on the assumption that they were the same.

B. Procedural Background

In August 2012, the government brought this action to reduce to judgment federal tax assessments against Mr. Cardaci and to force the sale of the Cardaci home. It sought to collect half of the proceeds to pay for Mr. Cardaci’s tax liability and to distribute the remainder to Mrs. Cardaci. Upon the government’s motion for summary judgment, the District Court, recognizing that Mr. Cardaci owed $80,083.87 plus interest and that the government had .a valid lien on the Cardaci property, granted partial summary judgment to that effect. The Court also held that the suit was timely because an assessment was first made in 2002, and the suit was brought within 10 years of that assessment. The Court did not, however, grant summary judgment with regard to the request to foreclose on the property.

Instead, the District Court determined that it had “limited discretion” to order an alternative remedy instead of a foreclosure sale. United States v. Cardaci, No. CIV. 12-5402 (JBS), 2014 WL 7524981, at *6 (D.N.J. Aug. 21, 2014). It noted that federal law does authorize such a sale and that New Jersey state law treats marital property as at least occasionally subject to partition, so the Court recognized that it could order a sale of the property, despite Mrs. Cardaci’s interest in the property and her objection to foreclosure. But it decided that additional factual development at a trial would be needed before it could properly weigh the equities and determine whether foreclosure was proper.

After a two-day bench trial, the Court issued a judgment based on its consideration of the equitable factors set out in the Supreme Court’s decision in United States v. Rodgers, 461 U.S. 677, 710-11, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983). The District Court examined: (1) “the extent to which the [gjovernment’s financial interests would be prejudiced if it were relegated to a forced sale of the partial interest actually liable for the delinquent taxes;” (2) whether Mrs. Cardaci had “a legally recognized expectation that [the] separate property would not be subject to forced sale by the delinquent taxpayer or his or her creditors;” (3) the likely prejudice to Mrs. Car-daci “in personal dislocation costs and ... practical undercompensation;” and (4) “the relative character and value of the non-liable and liable interests held in the property[.]” Rodgers, 461 U.S. at 710-11, 103 S.Ct. 2132. It also considered additional equitable factors such as the impact a forced sale would have on other non-liable parties. Ultimately, the Court concluded that it would be inequitable to force the sale of the property.

That conclusion was based in some measure on the Court’s method of valuing Mr. and Mrs. Cardacis’ respective interests in their home. In calculating those interests, the Court refused to find them equal. It determined that Mrs. Cardaci’s interest in the property, in the event of a forced sale, would be eighty-six percent, because she “owns an undivided one-half interest in the whole of the property, plus a right of survivorship.” Cardaci, 2014 WL 7524981, at *9. Using life estate interest tables published by the Health Care Financing Administration in the New Jersey Medicaid Manual, the Court decided that Mrs. Cardaci’s life estate interest was worth approximately seventy-two percent of the value of her interest in the property. The Court then added that life estate value (seventy-two percent times the fifty percent value of her interest, to equal thirty-six percent of the value of the property) to her one-half survivorship interest and concluded that she had an eighty-six percent interest in the value of the property, leaving the government to recover only fourteen percent of the proceeds from a forced sale. Based on that calculation and consideration of the equitable factors from Rodgers, the Court found that “[t]he equities of this case warrant the exercise of the Court’s ‘very limited discretion not to order a sale.’ ” Id. at *17 (citation omitted). It therefore fixed an imputed monthly rental value of $1,500 for the property and ordered Mr. Cardaci to pay half of that value to the IRS each month.

Shortly after the final judgment was entered, the Cardacis filed a motion for reconsideration under Fed. R. Civ. P. 59(e). They argued that the imputed rental value was inaccurate and, in support, submitted declarations from two different realtors. Concluding that such evidence should have been presented at trial, the District Court refused to reconsider its original judgment.

Mr. Cardaci quickly defaulted on his monthly payment obligation. He also failed to set up an automatic debit payment system as required by the District Court, and he failed to provide proof of homeowner’s insurance up to the balance of the tax obligation, as likewise required. He has not made any of the required payments and has not sought a stay of execution of judgment during the pendency of this appeal.

The government filed a timely notice of appeal, as did the Cardacis.

II. Discussion

A. Authority of the District Court to Order a Sale

At the outset, we address the Car-dacis’ argument that the District Court lacked the authority to even consider ordering a sale of marital property held in tenancy by the entirety. It is undisputed that, under New Jersey law, that is the character of the Cardacis’ ownership interest. It seems obvious, then, that they have rights that qualify as “property” subject to the federal tax lien statute, 26 U.S.C. § 6321. But the Cardacis argue that their property is not subject to a foreclosure sale because it is protected by a New Jersey statute, N.J.S.A. § 46:3-17.4.

There are at least two flaws with their argument. First, that particular New Jersey statute is not applicable to the Carda-cis. It was updated nearly thirty years ago by an amendment effective January 5, 1988, that includes the following language: “This act shall take effect on the 90th day after enactment and shall be applicable to all tenancies by entireties which are created on or after the effective date of this act.” 1987 N.J. Laws 1661. Therefore, by its terms, the statute applies only to tenancies by the entirety created on or after April 4, 1988. The Cardacis purchased the property at issue in 1978. Thus, the amended and more protective version of the New Jersey statute does not apply, and we are required to “consider the present matter under common-law principles without reference to N.J.S.A. 46:3-17.4.” Freda v. Commercial Tr. Co. of N.J., 118 N.J. 36, 570 A.2d 409, 411 (1990).

The second and more fundamental flaw in the Cardacis’ argument is that, regardless of the applicability of New Jersey statutory or common law, state law must give way to the supremacy of federal law. In United States v. Craft, 535 U.S. 274, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002), the Supreme Court made clear that “[s]tate law determines only which sticks are in a person’s bundle [of property rights]. Whether those sticks qualify as ‘property’ for purposes of the federal tax lien statute is a question of federal law.” Craft, 535 U.S. at 278-79, 122 S.Ct. 1414. Under federal law, an “interest in ... entireties property constitute^] ‘property’ or ‘rights to property’ for the purposes of the federal tax lien statute.” Id. at 288, 122 5.Ct. 1414. State-created exemptions are swept aside by the Supremacy Clause of the Constitution, which “is as potent in its application to innocent bystanders as in its application to delinquent debtors.” Rodgers, 461 U.S. at 701, 103 S.Ct. 2132. Therefore, the District Court was correct to hold ■that the marital home constitutes “property” subject to the federal tax lien statute. Craft, 535 U.S. at 288, 122 S.Ct. 1414; see also Popky v. United States, 419 F.3d 242, 244 (3d Cir. 2005) (holding that rights to marital property are “property” for federal tax purposes when they include “the right to use the property, to receive income produced by it, and to exclude others from it” (quoting Craft, 535 U.S. at 283, 122 S.Ct. 1414)).

B. Analysis of the Rodgers Factors

Since the Cardacis’ marital home is fair game under federal tax law, it can indeed be disposed of by a forced sale under 26 U.S.C. § 7403(c). But that statutory subsection provides that a court “may decree a sale of such property,” the word “may” necessarily implying a degree of discretion. 26 U.S.C. § 7403(c) (emphasis added). In United States v. Rodgers, the Supreme Court said as much, concluding “that § 7403 does not require a district court to authorize a forced sale under absolutely all circumstances, and that some limited room is left in the statute for the exercise of reasoned discretion.” 461 U.S. at 706, 103 S.Ct. 2132. Rodgers directs that courts must order a sale of the property to satisfy a tax lien, unless, in light of common sense or special circumstances, it determines that a sale would be inequitable. Id. at 711, 103 S.Ct. 2132. That determination is to be guided by four non-exhaustive factors. Id. at 710-11, 103 S.Ct. 2132.

“First, a court should • consider the extent to which the [g]overnment’s financial interests would be prejudiced if it were relegated to a forced sale of the partial interest actually liable for the delinquent taxes.” Id. at 710, 103 S.Ct. 2132. “Second, a court should consider whether the third party with a non-liable separate interest in the property would, in the normal course of events (leaving aside § 7403 and eminent domain proceedings, of course), have a legally recognized expectation that that separate property would not be subject to forced sale by the delinquent taxpayer or his or her creditors.” Id. at 710-711, 103 S.Ct. 2132. “Third, a court should consider the likely prejudice to the third party, both in personal dislocation costs and in ... practical undercompensation!;.]” Id. at 711, 103 S.Ct. 2132. “Fourth, a court should consider the relative character and value of the non-liable and liable interests held in the property!.]” Id. Those factors come with the caution that, because they do not “constitute an exhaustive list,” they should not “be used as a ‘mechanical checklist’ to the exclusion of common sense and consideration of special circumstances.” Id. 'At the same time, however, “the limited discretion accorded by § 7403 should be exercised rigorously and sparingly, keeping in mind the [government’s paramount interest in prompt and certain collection of delinquent taxes.” Id.

The government argues that the District Court here abused its discretion in analyzing the Rodgers factors and then erred in concluding that the Cardacis’ home should not be sold. We agree that the District Court erred in its analysis of the Rodgers factors but will decline the government’s invitation to definitively reweigh the factors ourselves, and, instead, we will remand for the District Court to recalculate the Cardacis’ property interests and again engage in a thorough analysis of the equitable factors set forth in Rodgers. To assist in that process, we make the following observations.

1. The Prejudice to the Government Resulting from a PaHial Sale

The first Rodgers factor directs a court to “consider the extent to which the [gjovernment’s financial interests would be prejudiced if it were relegated to a forced sale of the partial interest actually liable for the delinquent taxes.” Id. at 710, 103 S.Ct. 2132. In this case, the District Court concluded that that factor weighed in the government’s favor “only slightly” because a sale of Mr. Cardaci’s interest would provide little value, while requiring Mr. Cardaci to pay rental payments to the government was “likely to produce much greater collection of taxes to the [gjovernment compared with the amount likely to be obtained from a foreclosure sale of [the] entire property.” Cardaci, 2014 WL 7524981, at *9. We agree with that evaluation of what might be gained by trying to sell Mr. Cardaci’s interest in the home, but taking into account what might be gained from rental payments was not a sound approach in considering this factor. The focus should solely be on determining whether the government would be adequately compensated by a partial sale of the taxpayer’s interest or whether a sale of the entire property is necessary to vindicate the government’s interest. Rental payments are not the equivalent of a partial sale and are not relevant to the contrast between a partial and a total sale.

An analysis of the first factor boils down to the idea that, “the higher the expected market price [of a partial interest], the less the prejudice, and the less weighty the [g]overnment’s interest in going ahead with a sale of the entire property.” Rodgers, 461 U.S. at 710, 103 S.Ct. 2132. When there is no market for a partial interest in the property, this factor will weigh significantly in favor of a forced sale. See id. Because there is no real market for one spouse’s interest in a marital home held in a tenancy by the entirety (the sale of which would leave the purchaser as a tenant in common with the remaining spouse), this factor weighs in favor of a forced sale of the Cardaci home.

2. The Non-Liable PaHy’s Legally Recognized Expectation in the PropeHy

The second factor directs a court to “consider whether the third party with a non-liable separate interest in the property would, in the normal course of events[,] ... have a legally recognized expectation that that separate property would not be subject to forced sale by the delinquent taxpayer or his or her creditors.” Id. 710-11, 103 S.Ct. 2132. Consideration of that expectation requires reference to the protections afforded by state law. See id. at 711, 103 S.Ct. 2132 (looking to the protections afforded by Texas homestead laws). The District Court found that, because New Jersey law provides special protection for a spouse’s interest in marital property, Mrs. Cardaci would have expected that her property would be free from foreclosure based on her husband’s tax obligations. According to the government, however, when the District Court looked to New Jersey state law, it relied upon a statute that is “facially inapplicable” and “gave short shrift to the unusually weak protections provided by the New Jersey tenancy by the entirety[.]” (Opening Br. at 56.)

In determining the effect of New Jersey law on Mrs. Cardaci’s expectations, the Court relied, in part, on § 46:3-17.4 of New Jersey’s statutory code. But, as already noted, that law is only applicable to “tenancies by entireties which are created on or after the effective date of th[e] act[,]” namely January 5, 1988. 1987 N.J. Laws 1661. The Cardacis’ property was purchased ten years earlier, in 1978. Therefore, the government is correct that § 46:3-17.4 is inapplicable and, on remand, the District Court should “consider the present matter under common-law principles without reference to [it].” Freda, 570 A.2d at 411.

The government also takes issue with what it characterizes as the District Court’s failure to recognize that New Jersey provides weak protections for marital property held in a tenancy by the entirety. The expectation of the non-liable spouse is a matter of degree, because state laws afford varying levels of protection. Rodgers, 461 U.S. at 711, 103 S.Ct. 2132. In Freda v. Commercial Trust Co. of New Jersey, the New Jersey Supreme Court declined to follow precedent from Pennsylvania, Florida, and Georgia because the protections for non-liable spouses under New Jersey common law are not as strong. 570 A.2d at 413. Unlike in those states, spouses in New Jersey own separate interests that can be reached by their individual creditors, so that “the interest of one tenant by the entirety is subject to liens on that tenant’s interest.” Id. Nonetheless, the Freda court also recognized that “[tenancies by the entirety ... survive as a means of protecting marital assets during coverture and as security for one spouse on the death of the other,” and such protection “is particularly compelling when the asset is the family home.” Id. at 414 (citation omitted).

The most recent case from the New Jersey Supreme Court addressing common law rights and the protection of a person’s property from a spouse’s creditors—although rendered in the context of partition—seemed to focus on the equities, without announcing a clear legal right. The Court said that, “when the creditor’s interest in the [marital] dwelling is weighed against that of the debtor’s family, equitable principles persuade us that the creditor should not, as of right, be granted [partition] at the cost of dispossessing the family of its home.” Newman v. Chase, 70 N.J. 254, 359 A.2d 474, 480 (1976).

Consideration of the legally recognized expectations of the nonliable spouse is thus “amenable to considerations of degree.” Rodgers, 461 U.S. at 711, 103 S.Ct. 2132. It seems here that it may not weigh as fully against a forced sale as it would in a more protective state, but it also may not weigh in favor of a sale either, as New Jersey law may still discourage selling a family home to pay a creditor, depending on the equities. See Newman, 359 A.2d at 480. On remand, the District Court must, of course, rely on applicable New Jersey law in discerning the strength of Mrs. Carda-ci’s legally recognized expectations, given the facts of this case.

S. The Likely Prejudice to the Third Party

The third factor directs a court to “consider the likely prejudice to the third party, both in personal dislocation costs and in ... practical undereompensation[.]” Rodgers, 461 U.S. at 711, 103 S.Ct. 2132. The District Court focused its inquiry on the first aspect of this factor—personal dislocation costs. It concluded that the factor is neutral because, while Mrs. Cardaci would face dislocation costs, the costs were no greater than in any other foreclosure sale. We agree that there are no special dislocation costs to consider here. But it is problematic that the Court did not then address the “practical undercompensation” Mrs. Cardaci might suffer in the event of a forced sale.

The Supreme Court recognized in Rodgers that “financial compensation may not always be a completely adequate substitute for a roof over one’s head.” Id. at 704, 103 S.Ct. 2132. That is particularly true when the market value of the property in question “would be less than the price demanded by the market for a lifetime’s interest in an equivalent home.” Id. And, because any calculation of the cash value of a survivor-ship interest “must of necessity be based on actuarial statistics,” it “will unavoidably undercompensate persons who end up living longer than the average.” Id. Therefore, to the extent that a forced sale of the entire property undercompensates the non-liable spouse for the value of her life estate and the potential that she lives longer than expected, this factor will weigh against a forced sale. How strongly this factor weighs against a forced sale, however, will depend on how great the risk of undercompensation is, given the particular circumstances.

In order to determine whether an innocent spouse will be adequately compensated by a fair distribution of the proceeds from a forced sale, a court must first determine the amount that the spouse would receive from such a sale. Although the District Court here did not consider the practical undercompensation to Mrs. Cardaci, it did determine the amount it thought she would receive from a sale because that calculation was also necessary to the fourth factor. It said Mrs. Cardaci’s interest in the property was worth eighty-six percent of the property’s market value, after adopting the mathematical reasoning proposed by the Cardacis. To recapitulate, the Court first recognized that the Carda-cis’ “survivorship rights are of equal value: 50 percent of the property.” Cardaci, 2014 WL 7524981, at *12. It then, in effect, found Mrs. Cardaci’s life estate to be worth seventy-two percent of the value of her interest in the property. Because Mrs. Cardaci has only a one-half interest in the property, that seventy-two percent was divided by two to get to thirty-six percent of the value of the whole property. Since Mrs. Cardaci also had a fifty percent interest in survivorship, the Court added that fifty percent to the thirty-six percent value of the life estate to find that she had an eighty-six percent total interest in the value of the property. The Court did not include Mr. Cardaci’s interest in a life estate in its calculations, saying only that, “[a]s to the nonliable spouse[, i.e., Mrs. Cardaci], there is an extinguishment of her valuable right of life tenancy in that home ánd her right to withhold consent to sale of her home, for which the [government owes just compensation as a taking.” Id.; see also id. at *14 (“[A] forced sale would extinguish property rights presently held by the non-liable spouse, for which she must be compensated.”).

The government argues that, based on our decision in Popky v. United States, 419 F.3d 242 (3d Cir. 2005), the District Court should have determined that each spouse had a fifty percent interest in the home, without any consideration of their respective life expectancies and future interests in the home. The Cardacis oppose that method of calculation and instead defend the calculation of the District Court. Neither position is correct, but the District Court’s overarching concern about Mrs. Cardaci being fully and fairly compensated is sound and should be weighed under the third factor.

Contrary to the government’s argument, Popky is not controlling. In that case, the marital property at issue had already been liquidated. Popky, 419 F.3d at 243. We concluded that the interest of each spouse in the resulting cash was an equal fifty percent. Id. at 245. Even though the cash itself was still held by the spouses as entirety tenants under Pennsylvania law, id. at 243, there can be no life estate in cash as there can in real property. As a result, there was no need to turn to actuarial tables. Id. at 245.

In this case, however, real property and a life estate interest in that property are indeed at stake. To simply apply the same 50/50 rule used for liquidated property held as cash would be to ignore a critical interest in the life estate, and controlling Supreme Court precedent. Rodgers, 461 U.S. at 704, 103 S.Ct. 2132 (stating that “any calculation of the cash value of a homestead interest must of necessity be based on actuarial statistics”). The Carda-cis were counting on being able to live in their home all of their lives, regardless of which spouse may outlive the other. The same could not be said for the Popkys, who were looking only at a stack of cash. See id. (recognizing “that in practical terms financial compensation may not always be a completely adequate substitute for a roof over one’s head”). The Popky rule is thus inapplicable under these circumstances.

Although Popky’s simple 50/50 rule does not control, we cannot agree with the District Court’s calculation of the Car-dacis’ respective interests in the marital home. In a tenancy by the entirety, each spouse has a concurrent interest in the present value of the property, in a life estate, and in a right of survivorship. See Freda, 570 A.2d at 413. But because both the probability of obtaining the property upon the death of one’s spouse and the value of the life estate depend on life expectancy, any calculation of the cash value of those interests “must of necessity be based on actuarial statistics!.]” Rodgers, 461 U.S. at 704, 103 S.Ct. 2132. That is a logical rule. To give one admittedly extreme example, it stands to reason that a healthy twenty-six-year-old wife would have a greater interest in a life estate than would her ailing eighty-nine-year-old husband. While each spouse would have the same rights to the home, the measurable property value that they would be likely to receive from the property is not the same. Therefore, a method of calculation is needed that takes into account each spouse’s concurrent interest in the present value and their varying interests in life estate and survivorship rights. See Newman, 359 A.2d at 477 (“[T]he purchaser at an execution sale under a judgment entered against ’ a tenant by the entirety acquires the right of survivorship of the debtor spouse as well as the interest of the latter in the life estate for the joint lives of husband and wife.”).

A fair approach must therefore rely on joint-life actuarial tables to reflect the interests of both spouses. See In re Pletz, 221 F.3d 1114, 1117-18 (9th Cir. 2000) (following the Fifth Circuit in adopting a rule that calculates respective interests in marital property using joint-life actuarial tables). Such an approach accounts for differences in anticipated life expectancies and ensures that the concurrent interests of both spouses are correctly calculated, rather than valuing the non-liable spouse’s interest as if she possessed an exclusive life estate. Id. at 117 (citing United States v. Molina, 764 F.2d 1132, 1133 (5th Cir. 1985); Harris v. United States, 764 F.2d 1126, 1130 (5th Cir. 1985)). Furthermore, it avoids the dilemma created by the District Court’s methodology, which resulted in a sum of the various interests that exceeded one hundred percent of the value of the property. Cardaci, 2014 WL 7524981, at *12 (“Mr. and Mrs. Cardad own property interests that, combined, appear to be worth more than 100 percent of the property.”). The use of joint-life actuarial tables should assist in calculating spouses’ respective interests in a way that does justice to both the property owners and the government. And, if a non-liable spouse will be practically undercompensated after that method of calculation, that fact is an important but separate consideration for the Court to take into account.

A The Relative Character and Value of the Non-Liable and Liable Interests in the Property

Under the fourth factor, “a court should consider the relative character and value of the non-liable and liable interests held in the property!)]” Rodgers, 461 U.S. at 711, 103 S.Ct. 2132. If “the third party has no present possessory interest or fee interest in the property, there may be little reason not to allow the salé[.]” Id. “[O]n the other hand, [if] the third party not only has a possessory interest or fee interest, but that interest is worth 99% of the value of the property, then there might well be virtually no reason to allow the sale to proceed.” Id. It is unlikely that, based on life expectancy, the relative character and value of the non-liable and liable interests would be dramatically different in a tenancy by the entirety, unless those life expectancies were also dramatically different. Instead, this factor will more probably come into play when the liable party owns only a relatively small fraction of the property. For example, if the liable party owned property inherited from a parent as a tenant in common with,five other siblings, the relative value of the property would weigh against a forced sale. But if the liable party owned a mansion on the property while the siblings owned only the surrounding land, the character of the liable party’s interest might then weigh in favor of a forced sale.

Unlike the siblings in our example, the Cardacis own approximately equivalent interests in the property, both in terms of the character and value of their interests. Therefore, the fourth factor seems neutral here. Once the Court calculates the relative interests in the property using a joint-life actuarial table, it will be in a position to determine more precisely how this fourth factor weighs in the balance.

5. Other Equitable Factors

As previously noted, the Supreme Court warned in Rodgers that the four equitable factors it focused on are not an exhaustive list and should not be “used as a ‘mechanical checklist’ to the exclusion of common sense and consideration of special circumstances.” Id. Despite that, the government argues it was improper for the District Court in this case to “consider the prejudice to taxpayer’s long-term house guests [who] ... paid no rent and contributed nothing to the carrying costs of the property or the household.” (Opening Br. at 60.) By “house guests,” the government is presumably referring to the Cardacis’ son Garrett and his wife and three children. It is an odd label to hang on members of an immediate family, but we leave it to the District Court to decide how, if at all, the interests of Garrett’s family should weigh in the mix.

III. Conclusion

For the foregoing reasons, we confirm the District Court’s authority to consider whether a forced sale of the Cardacis’ marital property should be ordered, but we will vacate and remand for the Court to recalculate the respective interests in the marital property and to reconsider the balance of equities presented by this case.

      . Because we remand for the District Court to consider again whether to order a sale of the property, we do not address in detail the decision to order rental payments. We note, however, that Federal Rule of Civil Procedure 54(c) instructs that a "final judgment should grant the relief to which each party is enti-tied, even if the party has not demanded that relief in its pleadings.” Therefore, on remand, the District Court is not precluded from considering the imposition of rental payments as an alternative remedy simply because the government "has, not demanded that relief in its pleadings.” Id.

      . The IRS also sought to recover back taxes from Mr. Cardaci’s partner, Lewis J. Morey, and, in addition, it sued a drywall company and a building supply company that might have had an interest in the Cardaci property. Neither of those two companies, nor Mr. Mor-ey, appeared before the District Court, and default judgments were entered against them.

      . There are problems with the District Court's calculations that we describe infra at n.8 and accompanying text.

      . The IRS also sought an equitable lien on the entire property to remain attached in case Mr. Cardaci predeceases Mrs. Cardaci. The Court refused to grant such a lien, concluding that the tax obligation would no longer attach to the property upon Mr. Cardaci's death. To the extent the government seeks to challenge that decision on appeal, we note that, when a delinquent-taxpayer spouse dies, a federal tax lien on property held in a tenancy by the entirety by a husband and wife is extinguished and “the surviving non-liable spouse takes the property unencumbered by the federal tax lien.” Internal Revenue Serv., Notice 2003-60, Collection Issues Related to Entireties Properly (2003), 2003 WL 22100950 (2003).

      . The government initially filed a notice of appeal before the District Court judgment became final, which was docketed as No. 14-4237. After the District Court entered a final judgment as to the Cardacis, the government again appealed, and that appeal was docketed as No. 15-1247. Although the judgment was final as to the Cardacis, it did not resolve all claims against all parties because Mr. Carda-ci’s business partner, Mr. Morey, remained. (See supra n.2.) Default judgment was entered against him on August 13, 2015, which resolved all remaining claims as to all parties. The United States and the Cardacis each filed a timely notice of appeal from that final judgment, Case Nos. 15-3433 and 15-3469, respectively. All four appeals have been consolidated.

      . The District Court had jurisdiction under 26 U.S.C. § 7402 and 28 U.S.C. §§ 1331, 1340 and 1345. We have jurisdiction pursuant to 28 U.S.C. § 1291.

      . In explaining the implementation of the factors, we suggest how some of them may be assessed, but we do not consider them together to determine the result of a weighing of the equities. In other words, we have high confidence in the District Court and are not ruling on how the weighing process should ultimately come out.

      . One of the difficulties posed by the District Court’s calculation was the decision to first value Mrs. Cardaci’s interest in the home and to then add the value of a survivorship interest on top of that. In doing so, the District Court relied on the Supreme Court's statement that "interests in property, when sold separately, may be worth either significantly more or significantly less than the sum of their parts.” United States v. Cardaci, No. CIV. 12-5402 (JBS), 2014 WL 7524981, at *12 (D.N.J. Aug. 21, 2014) (quoting United States v. Rodgers, 461 U.S. 677, 694, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983)). But the fact that the monetary value of the various interests in the property may vary depending on whether they are sold together or separately does not mean that the relative values—the percentage of the whole—represented by each of those interests will, when combined, exceed 100 percent of the market value of the property. See In re Pletz, 221 F.3d 1114, 1118 (9th Cir. 2000) ("Because the Debtor and his wife each have an undivided life estate in the Property with a right of survivorship, the sum of their tenancy by the entirety interests must equal 100% of the value of the Property.”). As an economic matter, the market value of a property should account for all interests in the home, including survivorship and life estate and present possessory interests. As we discuss herein, if the intrinsic value of the life estate to the nonliable spouse (i.e., the personal benefit of having a roof over one’s head) is out of proportion to his or her interest in the market value of the home, then that is a matter to be treated as "practical undercompensation,” Rodgers, 461 U.S. at 711, 103 S.Ct. 2132, and considered in weighing the equities. It does not, however, mean that the life estate assumes a greater proportion of the value of the interests in the property.

      . The Sixth Circuit has relied on our decision in Popky to find that the same 50/50 rule applied to real property that had not yet been sold because the state law similarly provided for equal interests in marital assets. United States v. Barr, 617 F.3d 370, 373 (6th Cir. 2010). New Jersey laws likewise provides equal rights to property, but the value of a life estate and right to survivorship necessarily varies with age. Because we must now account for the varying values of those rights, the simple approach we used to divide cash in Popky is not viable outside the limited situation presented in that case. Barr, 617 F.3d at 379 (Batchelder, C.J., concurring in part and dissenting in part) (dissenting as to the adoption of Popky in the context of real property because "[t]he weight of federal law argues strongly against” a blanket 50/50 split).