Cirilo Garcia v. Jefferson B. Sessions III

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16‐3234 CIRILO G. GARCIA, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ Petition for Review of an Order of the Board of Immigration Appeals. No. A096‐180‐280 ____________________ ARGUED APRIL 20, 2017 — DECIDED OCTOBER 11, 2017 ____________________ 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 *The Honorable Sharon Johnson Coleman, of the United States District Court for the Northern District of Illinois, sitting by designation. 2 No. 16‐3234 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 granted Garcia’s petition for rehearing to address the standing question. The government now agrees that Garcia has stand‐ ing. 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. 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 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, 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. No. 16‐3234 3 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 ...

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