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Mejia v. Sessions

United States Court of Appeals, Fourth Circuit

August 9, 2017

SONIA CALLA MEJIA, a/k/a Sonia Calla-Mejia, Petitioner,
JEFFERSON B. SESSIONS III, Attorney General; ELAINE DUKE, Acting Secretary of the Department of Homeland Security, Respondents. AMERICAN IMMIGRATION LAWYERS ASSOCIATION; NATIONAL IMMIGRANT JUSTICE CENTER, Amici Supporting Petitioner.

          Argued: March 23, 2017

         On Petition for Review of an Order of the Department of Homeland Security.


          Morgan L. Goodspeed, HOGAN LOVELLS U.S. LLP, Washington, D.C., for Petitioner.

          Manuel Alexander Palau, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

         ON BRIEF:

          Catherine E. Stetson, Evan W. Guimond, Hamida B. Owusu, Mary S. Van Houten, HOGAN LOVELLS U.S. LLP, Washington, D.C., for Petitioner.

          Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Terri Scadron, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Mark Barr, LICHTER IMMIGRATION, Denver, Colorado; Charles Roth, Keren Zwick, NATIONAL IMMIGRANT JUSTICE CENTER, Chicago, Illinois, for Amici Curiae.

          Before TRAXLER, DIAZ, and FLOYD, Circuit Judges.


         After enduring years of domestic abuse at the hands of her husband, a Peruvian National Police Officer, Sonia Calla Mejia fled her native Peru and entered the United States illegally in April 2015. The Department of Homeland Security ("DHS") detained Calla Mejia and, following a June 2015 hearing before an Immigration Judge ("IJ") in Texas, removed her to Peru.

         Months later, Calla Mejia attempted to re-enter the United States, and was again apprehended by DHS, which reinstated her previous removal order. When Calla Mejia sought asylum, DHS placed her in "withholding of removal-only" proceedings and deemed her ineligible to apply for asylum because of her reinstated removal order. An IJ in Maryland concluded that Calla Mejia was ineligible for asylum but granted her withholding of removal.

         Before us, Calla Mejia contends that, irrespective of her status, she is entitled to apply for asylum under 8 U.S.C. § 1158, or, alternatively, because defects in the June 2015 proceedings render the underlying removal order invalid. The government counters that we lack jurisdiction over Calla Mejia's appeal. On the merits, the government asserts that 8 U.S.C. § 1231(a)(5) categorically prohibits individuals with reinstated orders of removal from applying for asylum relief, and, alternatively, rejects Calla Mejia's objections to the June 2015 hearing as meritless.

         As we explain, we have jurisdiction to consider Calla Mejia's statutory claim but not her challenges to the June 2015 removal order. With respect to the statutory claim, we hold that Congress has directly spoken to the precise question at issue: an alien subject to a reinstated removal order-like Calla Mejia-is precluded from applying for asylum. Accordingly, we dismiss Calla Mejia's petition for review in part and deny the petition in part.


         The first time Calla Mejia fled Peru, she waded across the Rio Grande from Mexico into the United States, where she was apprehended by U.S. Customs & Border Patrol near Laredo, Texas. Calla Mejia told Border Patrol agents that she came to the United States to "reside and work in New York" for a period of five years.[1] A.R. 218.

         While in detention, Calla Mejia was referred to an asylum officer, who conducted a credible-fear interview. Calla Mejia informed the asylum officer that she had been threatened, brutally beaten, and raped by her husband for several years. She explained that when she reported his abuse to the police in Peru, "after [she] told them [her] husband was a police officer they just left [her] there waiting and they never helped [her]." A.R. 212. Calla Mejia told the asylum officer that she couldn't live safely anywhere in Peru because her husband-using the investigative resources at his disposal as a police officer-would undoubtedly look for her and harm her. The asylum officer concluded that Calla Mejia had demonstrated a credible fear of returning to Peru and Calla Mejia was consequently placed in a full removal proceeding pursuant to 8 U.S.C. § 1229a.

         After DHS served her with a Notice to Appear, Calla Mejia appeared pro se before an IJ in Texas. This June 2015 Master Calendar Hearing was consolidated with the hearings of seven other women and conducted by the IJ via videoconference.[2] Through a Spanish-language interpreter, the IJ advised the women of their rights in the removal proceedings, including their right to apply for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ also spoke at length about credibility, explaining:

By now each of you have given at least two separate sworn statements. You gave one to the border patrol when you were apprehended and another to the asylum officer. If those two statements are not consistent with each other you have a credibility problem. Credibility problems are extremely difficult to overcome under our law.

A.R. 556-57.

         The IJ then addressed Calla Mejia individually. Calla Mejia confirmed that she understood her rights as explained. The IJ noted that Calla Mejia "told the second officer [she was] fearful of returning to [her] country, " but that she "told the first officer [she was] going to live in New York for five years and [she was] not afraid to return." A.R. 561-62. The IJ informed Calla Mejia, "if you want to apply for asylum, withholding of removal and Convention Against Torture relief, I will allow it, but I should tell you, you have a credibility problem. A serious one." A.R. 562. Calla Mejia subsequently declined to apply for relief, accepted the order of removal, and waived her right to appeal. The IJ issued a final order of removal, and Calla Mejia was removed to Peru on June 22, 2015.

         Once removed, Calla Mejia returned to her family home in Peru. Her husband soon learned that she was back, entered her family's house, attacked her, and raped her. Calla Mejia then fled to the United States a second time, where she was immediately apprehended and detained by Border Patrol. Pursuant to 8 U.S.C. § 1231(a)(5), DHS reinstated Calla Mejia's June 2015 order of removal.

         Calla Mejia was subsequently transferred to a detention center in Maryland, where, after she expressed a fear of returning to Peru, an asylum officer conducted a reasonable-fear interview. The asylum officer found that Calla Mejia credibly established a reasonable fear of persecution in Peru. But because Calla Mejia remained subject to a reinstated order of removal, DHS placed her in "withholding-only" proceedings.

         With the aid of counsel, Calla Mejia filed a Form I-589 application and supporting briefs asserting her eligibility for asylum, withholding of removal, and Convention Against Torture protection. Calla Mejia contended that despite her placement in withholding-only proceedings, she was statutorily eligible to apply for asylum. Alternatively, Calla Mejia argued that her original removal order was invalid due to constitutional defects in the June 2015 hearing in Texas.

         Calla Mejia appeared before the IJ in February 2016. Her counsel urged that Calla Mejia was eligible to apply for asylum.[3] But the IJ responded that the reinstated removal order rendered Calla Mejia ineligible for asylum and concluded that she lacked the authority to consider the application for asylum. At that point, Calla Mejia's counsel withdrew the application.

         Calla Mejia testified regarding the domestic abuse she had suffered and her fear of returning to Peru. The IJ granted Calla Mejia's application for withholding of removal, finding that Calla Mejia credibly established past persecution in the form of domestic violence, the Peruvian government's inability or unwillingness to protect her, and her inability to relocate safely elsewhere in Peru. Calla Mejia and DHS waived appeal of the IJ's ruling.

         This petition for review followed.


         We begin with a brief overview of the relevant statutory provisions of the Immigration and Nationality Act ("INA"). Calla Mejia's claim that she is entitled to seek asylum notwithstanding her reinstated removal order centers on the relationship between two statutes: 8 U.S.C. § 1158, the asylum statute, and 8 U.S.C. § 1231(a)(5), the reinstatement bar. Before discussing these provisions, we first examine the distinction between withholding of removal, which the IJ granted to Calla Mejia in the February 2016 proceedings, and asylum, which Calla Mejia continues to seek.


         Eligibility for the discretionary relief of asylum requires an alien to show that she is a "refugee, " or a person "unable or unwilling to return to" a country because she has a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A) (defining the term "refugee"); 8 C.F.R. § 1208.13(b) (providing eligibility standard). Critically, "the Attorney General is not required to grant asylum to everyone who meets the definition of refugee." INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987). Instead, "the decision whether asylum should be granted to an eligible alien is committed to the Attorney General's discretion." INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999).

         By contrast, "[i]f an applicant for withholding of removal establishes her claim, the Attorney General cannot remove her to her native country." Anim v. Mukasey, 535 F.3d 243, 252 (4th Cir. 2008) (internal quotation marks omitted). Accordingly, to obtain withholding of removal, an alien must satisfy "a more demanding standard of proof than an asylum claim." Id. She "must establish that if she was sent back to her home country, there is a clear probability that her 'life or freedom would be threatened . . . because of [her] race, religion, nationality, membership in a particular social group, or political opinion.'" Id. at 252-53 (omission and alteration in original) (quoting 8 U.S.C. § 1231(b)(3)(A)); see also 8 C.F.R. § 1208.16(b).

         Withholding of removal and asylum also differ with regard to the benefits granted to an alien. "[A]sylum affords [aliens] broader benefits" than a grant of withholding of removal, including the opportunity for adjustment to lawful permanent resident status, and ultimately, citizenship. Cardoza-Fonseca, 480 U.S. at 428 n.6. Asylees may also petition for derivative asylee status for certain family members. 8 C.F.R. § 1208.21. Moreover, while withholding of removal only prevents the removal of an alien to the specific country where she faces persecution-thereby leaving open the possibility of transfer to a third country, id. § 1208.16(f)-asylum prevents removal from the United States entirely. Finally, aliens granted withholding of removal are subject to a number of restrictions, including limitations on their ability to work in the United States, id. § 247a.12(a)(10), and to travel internationally, id. § 241.7.


         As originally enacted, the asylum provision relied on by Calla Mejia granted "an alien . . . irrespective of such alien's status, " the right to apply for asylum. See Refugee Act of 1980, Pub. L. No. 96-212, § 208, 94 Stat. 102, 105. With the exception of a 1990 amendment that prohibited aliens convicted of an aggravated felony from applying for asylum, see Immigration Act of 1990, Pub. L. No. 101-649, § 515, 104 Stat. 4978, 5053, the text of the asylum provision remained largely unchanged until 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546. IIRIRA recodified the asylum provision at 8 U.S.C. § 1158 and reformatted it into two sections: § 1158(a)(1), which now provides that "[a]ny alien . . . irrespective of such alien's status, may apply for asylum, " and § 1158(a)(2), which enumerates certain classes of aliens who are ineligible to apply for asylum.

         Specifically, as amended, the asylum provision now provides that individuals who could be removed to a "[s]afe third country, " § 1158(a)(2)(A), failed to timely apply for asylum, § 1158(a)(2)(B), or were previously denied asylum, § 1158(a)(2)(C), are statutorily ineligible to apply for asylum. Section 1158(a)(2)(D), however, sets out an exception to these exceptions: Notwithstanding a previous denial of asylum, an alien may apply for asylum if the alien successfully demonstrates "the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application."


         In addition to revising § 1158, IIRIRA enacted § 1231(a)(5), which governs the reinstatement of removal orders. Before IIRIRA, aliens who illegally re-entered the United States after removal were placed in the same removal proceedings as those aliens not subject to a previous removal order, affording them additional hearings before an IJ. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 34-35 (2006). Frustrated with the duplicative nature of this existing process, Congress sought to "toe[] a harder line" with "illegal reentrants, " id., by providing:

If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under [Chapter 12 of Title 8], and the alien shall be removed under the prior order at any time after the reentry.

8 U.S.C. § 1231(a)(5).

         As such, IIRIRA enlarged the class of illegal reentrants subject to summary removal after reinstatement, "explicitly insulate[d] the[ir] removal orders from review, and generally foreclose[d] discretionary relief from the terms of the reinstated order." Fernandez-Vargas, 548 U.S. at 35.

         To effectuate § 1231(a)(5), the Attorney General promulgated 8 C.F.R. § 241.8. Typically, under this regulation, if an immigration officer determines: (1) "the alien has been subject to a prior order of removal"; (2) "the alien is in fact [the] alien who was previously removed"; and (3) "the alien unlawfully reentered the United States, " then the alien has no right to a hearing before an IJ, and shall be summarily removed under the prior order. 8 C.F.R. § 241.8(a)-(c). However, the regulation provides an exception for an alien who expresses a fear of returning to the country designated in the reinstated removal order: under 8 C.F.R. § 241.8(e), "the alien shall be immediately referred to an asylum officer for an interview to determine whether the alien has a reasonable fear of persecution or torture." If an asylum officer concludes that the alien has a "reasonable fear of persecution or torture, " the case is referred to an IJ "for full consideration of the request for withholding of removal only." 8 C.F.R. § 1208.31(e).[4] Appeal of the IJ's decision as to the request for withholding of removal lies with the Board of Immigration Appeals ("BIA"). Id. A separate regulation permits an individual subject to a reinstated removal order to also seek protection under the Convention Against Torture. Id. § 1208.16(c)(4).


         Calla Mejia maintains that the statutory language of the asylum provision, § 1158(a)(1), gives her the right to apply for asylum irrespective of her status. In the alternative, Calla Mejia argues that constitutional and statutory defects in the June 2015 hearing render the underlying removal order ...

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