Argued: March 23, 2017
Petition for Review of an Order of the Department of Homeland
L. Goodspeed, HOGAN LOVELLS U.S. LLP, Washington, D.C., for
Alexander Palau, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Catherine E. Stetson, Evan W. Guimond, Hamida B. Owusu, Mary
S. Van Houten, HOGAN LOVELLS U.S. LLP, Washington, D.C., for
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.
Barr, LICHTER IMMIGRATION, Denver, Colorado; Charles Roth,
Keren Zwick, NATIONAL IMMIGRANT JUSTICE CENTER, Chicago,
Illinois, for Amici Curiae.
TRAXLER, DIAZ, and FLOYD, Circuit Judges.
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.
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.
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.
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.
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. A.R. 218.
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.
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. 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.
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.
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.
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"
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.
Mejia appeared before the IJ in February 2016. Her counsel
urged that Calla Mejia was eligible to apply for
asylum. 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.
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.
petition for review followed.
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.
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).
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.
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.
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
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."
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).
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.
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). 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).
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