866 F.3d 573 (4th Cir. 2017), 16-1280, Mejia v. Sessions

Docket Nº:16-1280
Citation:866 F.3d 573
Opinion Judge:DIAZ, Circuit Judge:
Party Name:SONIA CALLA MEJIA, a/k/a Sonia Calla-Mejia, Petitioner, v. 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
Attorney: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. Catherine E. Stetson, Evan W. Guimond, Hamida B. Owusu, Mary S. Van Houten, HOGAN LOVELLS U.S. LLP, Washington, D.C., for P...
Judge Panel:Before TRAXLER, DIAZ, and FLOYD, Circuit Judges. Judge Diaz wrote the majority opinion, which Judge Floyd joined in full and Judge Traxler joined in part. Judge Traxler wrote an opinion dissenting in part. TRAXLER (In Part) TRAXLER, Circuit Judge, concurring in part and dissenting in part:
Case Date:August 09, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

The Fourth Circuit affirmed the denial of petitioner's application for asylum after an IJ granted her application for withholding of removal. The court held that the interplay between 8 U.S.C. 1231(a)(5) and 1158 was unambiguous: Congress intended that aliens subject to reinstated orders of removal be precluded from applying for asylum. Furthermore, barring illegal reentrants from applying for... (see full summary)

 
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Page 573

866 F.3d 573 (4th Cir. 2017)

SONIA CALLA MEJIA, a/k/a Sonia Calla-Mejia, Petitioner,

v.

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

No. 16-1280

United States Court of Appeals, Fourth Circuit

August 9, 2017

         Argued March 23, 2017.

Page 574

[Copyrighted Material Omitted]

Page 575

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

         ARGUED:

         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. Judge Diaz wrote the majority opinion, which Judge Floyd joined in full and Judge Traxler joined in part. Judge Traxler wrote an opinion dissenting in part.

          OPINION

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          DIAZ, Circuit Judge:

         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.

         I.

         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.

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          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

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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.

         II.

         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,...

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