Cirilo Garcia v. Loretta Lynch
Filed opinion of the court by Judge Manion GRANTING Petitioner Cirilo G Garcia's Petition for Rehearing and Petition for Rehearing EnBanc. Garcia's Petition for Review is DENIED. A majority of the active judges of this court indicated a desire to overrule the cited portion of Delgado Arteaga in accordance with our procedures under Circuit Rule 40(e).This opinion has been circulated to all judges in active service on this court and no judge voted to rehear this case en banc. Daniel A. Manion, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Sharon Johnson Coleman, District Court Judge. [6875458-1]  [16-3234]--[Edited 10/11/2017 by MM to reflect a petition for rehearing is being ruled on.]
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 OCTOBER 11, 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 District
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). 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 stand‐
ing question. The government now agrees that Garcia has
We agree with the parties that Garcia has standing to file
this petition, and as we discuss below, anything to the con‐
trary in this court’s precedent will be overruled. However, on
the merits we conclude that 8 U.S.C. § 1231(a)(5) plainly pro‐
hibits aliens in Garcia’s position from applying for asylum.
Therefore, we deny his petition for review.
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 have presented a straightforward question:
may an alien subject to reinstatement of a removal order ap‐
ply 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 ap‐
ply for asylum. The Attorney General counters with the spe‐
cific 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 dis‐
cretionary 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 govern‐
ment repudiated its standing argument. Moreover, we recog‐
nize 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 Gar‐
cia’s motion for panel rehearing. Subsequently, a majority of
the active judges of this court indicated a desire to overrule
the cited portion of Delgado‐Arteaga in accordance with our
procedures under Circuit Rule 40(e).
We now conclude that Delgado‐Arteaga’s holding was in‐
consistent with Article III standing doctrine. A litigant has
standing to sue if he has suffered an injury‐in‐fact, the injury
is fairly traceable to the defendant’s conduct, and it is redress‐
able by a favorable judicial decision. Lujan v. Defenders of Wild‐
life, 504 U.S. 555, 560–61 (1992). Garcia has been denied the
right to apply for asylum. While asylum is indeed entirely dis‐
cretionary, an alien must be allowed to apply for asylum be‐
fore he can receive it. In other words, the denial of a statutory
right to apply for asylum extinguishes any chance an alien
might have had to receive asylum. Therefore, it is a sufficient
injury‐in‐fact under Article III even though there is no due
process right to asylum. That injury is caused by the Attorney
General’s interpretation of Section 1231(a)(5) and could be
cured by a favorable decision of this court. That is, even
though this court could never guarantee that Garcia receive
asylum, it could order the Attorney General to allow him to
apply. Therefore, Garcia has standing to challenge the denial
of his alleged statutory right to apply for asylum. Insofar as
Delgado‐Arteaga held otherwise, it is overruled.1
Because we have decided that Garcia has standing to peti‐
tion, we must reach the merits of his claim. The question he
presents—whether an alien subject to a reinstated order of re‐
moval may apply for asylum—has recently confronted sev‐
eral of our sister circuits. All of them have answered in the
negative, although there is a significant split in the reasoning
of those decisions. The Second, Fourth, Fifth, and Eleventh
Circuits each found the text of 8 U.S.C. § 1231(a)(5) disposi‐
tive,2 while the First, Third, and Ninth Circuits deferred to the
1 This opinion has thus been circulated to all judges in active service on
this court and no judge voted to rehear this case en banc.
2 Herrera‐Molina v. Holder, 597 F.3d 128, 139 (2d Cir. 2010) (“According to
the relevant statutory and regulatory provisions, relief other than with‐
holding of removal, e.g., asylum or cancellation of removal, is not availa‐
ble to this petitioner.”); Mejia, 866 F.3d at 584 (“[W]e discern no ambiguity
in the interplay between § 1231(a)(5) and § 1158(a)(1). We think it clear
that, by enacting the reinstatement bar, Congress intended to preclude in‐
dividuals subject to reinstated removal orders from applying for asy‐
government’s position under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).3 We agree
with the result in all these cases. Further, we follow the first
group of courts and hold that the plain text of 8 U.S.C.
§1231(a)(5) prohibits Garcia from applying for asylum.
Section 1231(a)(5) prohibits aliens subject to reinstated or‐
ders of removal from applying for “any relief under this chap‐
ter.” “[A]sylum is a form of relief from removal,” Jimenez‐Mo‐
rales, 821 F.3d at 1310, “because, if granted, it prevents the re‐
moval from going forward[,]” Ramirez‐Mejia, 794 F.3d at 489.
That is why “[c]ourts routinely refer to asylum as a form of
lum.”); Ramirez‐Mejia v. Lynch, 794 F.3d 485, 490 (5th Cir. 2015) (“Section
1231(a)(5), read plainly, broadly denies all forms of redress from removal,
including asylum.”); Jimenez‐Morales v. U.S. Att’y Gen., 821 F.3d 1307, 1310
(11th Cir. 2016) (“As asylum is a form of relief from removal, we join the
Second and Fifth Circuits in holding that a person like Mr. Jimenez‐Mo‐
rales is not eligible for and cannot seek asylum.” (citation omitted)).
3 Garcia v. Sessions, 856 F.3d 27, 41 (1st Cir. 2017) (“[W]e cannot say that
the agency acted unreasonably in choosing to ensure that the same aliens
who could not seek asylum still would be protected through withholding
of removal from suffering persecution or torture in their home country, in
accord with § 1231(b)(3)(A)’s clear directive to the Attorney General to af‐
ford that vital and long‐understood‐to‐be mandatory protection.”); Cazun
v. Att’y Gen., 856 F.3d 249, 260 (3d Cir. 2017) (“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 avail‐
able to those subject to reinstated removal orders.”); Perez‐Guzman v.
Lynch, 835 F.3d 1066, 1082 (9th Cir. 2016) (“[W]e hold that 8 C.F.R.
§ 1208.31(e) is a reasonable interpretation of the interplay between § 1158
and § 1231, and we must therefore defer to it under Chevron. In keeping
with that regulation, Perez is not eligible to apply for asylum under § 1158
as long as he is subject to a reinstated removal order.”). But see Cazun, 856
F.3d at 262 (Hardiman, J., concurring in the judgment) (noting that he
would find the agency’s interpretation compelled by the statutory text).
relief from removal and frequently employ the phrase ‘asy‐
lum relief.’” Id. Because the word “any” typically “has an ex‐
pansive meaning,” United States v. Gonzales, 520 U.S. 1, 5
(1997), it should be read to encompass all forms of relief, in‐
cluding asylum. Therefore, Congress has unambiguously de‐
clared that aliens in Garcia’s position are ineligible to apply
The general asylum statute, 8 U.S.C. § 1158(a), doesn’t
change that result. While it says that “[a]ny alien … irrespec‐
tive of such alien’s status, may apply for asylum,” that general
statement is followed by numerous exceptions. Section
1231(a)(5) should be read as another limitation on the right to
apply for asylum. “Canons of statutory construction discour‐
age an interpretation that would render a statute meaningless
and usually require that a ‘specific’ statute prevail over a ‘gen‐
eral’ one.” In re Baker, 430 F.3d 858, 860 (7th Cir. 2005). Garcia’s
proffered interpretation of Section 1158(a) attempts to use
that subsection to trump the specific prohibition in Section
1231(a)(5), rendering that prohibition meaningless. Therefore,
we join the Second, Fourth, Fifth, and Eleventh Circuits in re‐
We hold, contrary to Delgado‐Arteaga v. Sessions, that an al‐
ien has standing to contest a denial of the right to apply for
asylum in this court. That portion of Delgado‐Arteaga is there‐
fore overruled. However, we join our sister circuits in holding
4 We don’t address whether withholding of removal might also be a form
of “relief” under Section 1231(a)(5) even though Garcia received it. Nei‐
ther party takes issue with the grant of withholding in this case so it is not
properly before the court.
that an alien subject to a reinstated order of removal is not
eligible to apply for asylum. Therefore, we deny Garcia’s pe‐
tition for review.
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