Opinion
No. 16-3234
06-08-2017
Cirilo G. GARCIA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
Edward F. Malone, William S. Porterfield, Attorneys, Barack, Ferrazzano, Kirschbaum & Nagelberg LLP, Keren Zwick, Attorney, National Immigrant Justice Center, Chicago, IL, for Petitioner. Carmel A. Morgan, OIL, Attorneys, Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, for Respondent. Rebecca Ann Sharpless, Attorney, University of Miami School of Law, Coral Gables, FL, for Amicus Curiae.
Edward F. Malone, William S. Porterfield, Attorneys, Barack, Ferrazzano, Kirschbaum & Nagelberg LLP, Keren Zwick, Attorney, National Immigrant Justice Center, Chicago, IL, for Petitioner.
Carmel A. Morgan, OIL, Attorneys, Department of Justice, Civil Division, Commercial Litigation Branch, Washington, DC, for Respondent.
Rebecca Ann Sharpless, Attorney, University of Miami School of Law, Coral Gables, FL, for Amicus Curiae.
Before Manion and Rovner, Circuit Judges, and Coleman, District Judge.
The Honorable Sharon Johnson Coleman, of the United States District Court for the Northern District of Illinois, sitting by designation.
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). However, because asylum is a form of discretionary relief, he lacks standing to challenge the regulations prohibiting him from applying for it. Therefore, we dismiss the petition for lack of jurisdiction.
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 I–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 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 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 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). But we need not reach the question, because in light of our recent decision in Delgado-Arteaga v. Sessions , 856 F.3d 1109, 1115 (7th Cir. 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 opportunity to apply for asylum does not constitute "an invasion of a legally protected interest." Id. (quoting Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) ). Garcia lacks standing and this petition must be dismissed.
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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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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III. Conclusion
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.
DISMISSED .