Cirilo G. Garcia, Petitioner,
Jefferson B. Sessions III, Attorney General of the United States, Respondent.
April 20, 2017
for Review of an Order of the Board of Immigration Appeals.
Manion and ROVNER, Circuit Judges, and Coleman, District
Manion, Circuit Judge.
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.
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
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,
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.
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.
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
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.
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 ...