Cirilo Garcia v. Loretta Lynch
Filed opinion of the court by Judge Manion. We DISMISS his petition for lack of jurisdiction. Daniel A. Manion, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Sharon Johnson Coleman, District Court Judge. [6846648-1]  [16-3234]
United States Court of Appeals
For the Seventh Circuit
CIRILO G. GARCIA,
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Petition for Review of an Order of
the Board of Immigration Appeals.
ARGUED APRIL 20, 2017 — DECIDED JUNE 8, 2017
Before MANION and ROVNER, Circuit Judges, and COLEMAN,
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
* The Honorable Sharon Johnson Coleman, of the United States Dis‐
trict Court for the Northern District of Illinois, sitting by designation.
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). However, because asylum is a form of
discretionary relief, he lacks standing to challenge the regula‐
tions prohibiting him from applying for it. Therefore, we dis‐
miss the petition for lack of jurisdiction.
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 re‐
turn 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,
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 per‐
secution or torture, the officer shall so inform the alien and
issue a Form I–863, Notice of Referral to the Immigration
Judge, for full consideration of the request for withholding of re‐
moval only.” (emphasis added)). Garcia then filed an asylum
application in Immigration Court on September 8, 2014.
On October 29, 2014, the Immigration Judge granted Gar‐
cia 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 ex‐
plained that she lacked the authority to reconsider the rein‐
statement of Garcia’s removal order. Garcia then appealed to
the Board of Immigration Appeals, arguing that he has a stat‐
utory 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 vio‐
lation of the statute, but also noted that “several federal courts
have held a person in reinstatement proceedings is not eligi‐
ble for and cannot seek asylum.” This petition followed.
The parties 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 con‐
tends that this language grants him the right to apply for asy‐
lum. The Attorney General counters with the specific lan‐
guage 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
1235(a)(5) categorically prohibits Garcia’s application.
Three of our sister circuits have agreed with the Attorney
General. See Jimenez‐Morales v. U.S. Att’y Gen., 821 F.3d 1307,
1310 (11th Cir. 2016); Ramirez‐Mejia v. Lynch, 794 F.3d 485, 489–
90 (5th Cir. 2015); Herrera‐Molina v. Holder, 597 F.3d 128, 139
(2d Cir. 2010).1 But we need not reach the question, because in
light of our recent decision in Delgado‐Arteaga v. Sessions, No.
16‐1816, 2017 WL 2001659, at *4 (7th Cir. May 12, 2017), it is
clear that Garcia has not suffered a sufficient Article III injury‐
in‐fact to confer federal jurisdiction. As we explained in that
case, “[a]sylum is a form of discretionary relief in which ‘there
is no liberty interest at stake.’” Id. (quoting Delgado v. Holder,
674 F.3d 759, 765 (7th Cir. 2012)). Thus, denial of the oppor‐
tunity to apply for asylum does not constitute “an invasion of
a legally protected interest.” Id. (quoting Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1548 (2016)). Garcia lacks standing and this
petition must be dismissed.
Because asylum is a form of discretionary relief, Garcia has
no legal right to apply for it. Therefore, he lacks standing to
challenge the application of regulations preventing him from
applying. We dismiss his petition for lack of jurisdiction.
1 The Third and Ninth Circuits reached the same conclusion, but after
affording the regulations deference under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). Cazun v. Att’y Gen., 856
F.3d 249, 261 (3d Cir. 2017); Perez‐Guzman v. Lynch, 835 F.3d 1066, 1081–82
(9th Cir. 2016).
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