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Garcia v. Sessions

United States Court of Appeals, Seventh Circuit

October 11, 2017

Cirilo G. Garcia, Petitioner,
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued April 20, 2017

         Petition for Review of an Order of the Board of Immigration Appeals. No. A096-180-280

          Before Manion and ROVNER, Circuit Judges, and Coleman, District Judge. [*]

          Manion, Circuit Judge.

         Petitioner Cirilo Garcia is a native citizen of Honduras currently subject to a reinstated order of removal. Federal regulations say that aliens in his position have no right to apply for asylum. Garcia argues that these regulations are inconsistent with the general asylum statute, 8 U.S.C. § 1158(a)(1). Following circuit precedent, we initially held that Garcia lacked standing to challenge the regulations because of the discretionary nature of asylum. However, we now grant Garcia's petition for rehearing to address the standing question. The government now agrees that Garcia has standing.

         We agree with the parties that Garcia has standing to file this petition, and as we discuss below, anything to the contrary in this court's precedent will be overruled. However, on the merits we conclude that 8 U.S.C. § 1231(a)(5) plainly prohibits aliens in Garcia's position from applying for asylum. Therefore, we deny his petition for review.

         I. Background

         Garcia is a Honduran national who first came to the United States in 2003. He was ordered removed in absentia on October 24, 2003, and eventually departed in 2005. However, Garcia claims that he encountered persecution upon his return to Honduras because of his unpopular political views- specifically, his opposition to deforestation. Eventually, he was kidnapped and beaten. He chose to return to the United States in 2014 and, after being apprehended by Border Patrol, sought asylum.

         Garcia expressed a fear of persecution and torture because of his activism if he returned to Honduras. On June 9, 2014, the Chicago Asylum Office issued a positive reasonable fear determination, finding that Garcia was generally credible and had a reasonable fear of torture. The Office referred his case to an Immigration Judge for withholding-only proceedings. See 8 C.F.R. § 208.31(e) ("If an asylum officer determines that an alien described in this section has a reasonable fear of persecution or torture, the officer shall so inform the alien and issue a Form 1-863, Notice of Referral to the Immigration Judge, for full consideration of the request for withholding of removal only." (emphasis added)). Garcia then filed an asylum application in Immigration Court on September 8, 2014.

         On October 29, 2014, the Immigration Judge granted Garcia statutory withholding of removal after finding that he had been persecuted in the past and it was more likely than not that he would be again if he returned to Honduras. The IJ explained that she lacked the authority to reconsider the reinstatement of Garcia's removal order. Garcia then appealed to the Board of Immigration Appeals, arguing that he has a statutory right to seek asylum under 8 U.S.C. § 1158(a). On July 25, 2016, the Board dismissed his appeal. It explained that it lacked authority to declare the controlling regulations in violation of the statute, but also noted that "several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum." This petition followed.

         II. Discussion

         The parties have presented a straightforward question: may an alien subject to reinstatement of a removal order apply for asylum? The general asylum statute, 8 U.S.C. § 1158(a), says "[a]ny alien who is physically present in the United States or who arrives in the United States ... irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title." Garcia contends that this language grants him the right to apply for asylum. The Attorney General counters with the specific language of 8 U.S.C. § 1231(a)(5), providing that aliens subject to a reinstated order of removal are "not eligible and may not apply for any relief under this chapter." Since asylum is a form of relief, the Attorney General argues that Section 1231(a)(5) categorically prohibits Garcia's application.

         Initially, the Attorney General also argued that Garcia lacked standing to file this petition in light of our decision in Delgado-Arteaga v. Sessions, 856 F.3d 1109, 1115 (7th Cir. 2017). In that case, we held that because "[a]sylum is a form of discretionary relief in which 'there is no liberty interest at stake[, ]'" the petitioner had not suffered an Article III injury-in-fact when he was denied the opportunity to apply. Id. (quoting Delgado v. Holder, 674 F.3d 759, 765 (7th Cir. 2012)). Relying on Delgado-Arteaga, the panel initially reached the same conclusion in this case. Garcia v. Sessions, 859 F.3d 406, 408 (7th Cir. 2017).

         In response to Garcia's petition for rehearing, the government repudiated its standing argument. Moreover, we recognize that we are the only circuit to hold that a petitioner lacks standing to assert a statutory right to apply for asylum. See Mejia v. Sessions, 866 F.3d 573, 583-84 (4th Cir. 2017) (collecting cases). In light of these considerations, we hereby grant Garcia's motion for panel rehearing. Subsequently, a majority of the active judges of this ...

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