Lara-Aguilar v. Sessions

• Citation: 889 F.3d 134
• Decision Date: 02 May 2018
• Docket Number: No. 16-1836,16-1836
• Parties: Francisco LARA-AGUILAR, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

889 F.3d 134

Francisco LARA-AGUILAR, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 16-1836

United States Court of Appeals, Fourth Circuit.

Argued: December 7, 2017

Decided: May 2, 2018

ARGUED: Shon Robert Hopwood, GEORGETOWN LAW APPELLATE COURTS IMMERSION CLINIC, Washington, D.C., for Petitioner. Matthew B. George, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Steven H. Goldblatt, Director, Sarah E. Balkissoon, Student Counsel, Hillary B. Neger, Student Counsel, Harry R.S. Phillips, Student Counsel, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Petitioner. Chad A. Readler, Acting Assistant Attorney General, Civil Division, Benjamin C. Mizer, Principal Deputy, Assistant Attorney General, Civil Division, Douglas E. Ginsburg, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before TRAXLER, KING, and HARRIS, Circuit Judges. Judge Traxler wrote the opinion in which Judge King and Judge Harris joined.

TRAXLER, Circuit Judge:

In the fall of 2013, Francisco Lara-Aguilar was caught while attempting to enter the United States illegally and subsequently removed. A few months later, Lara-Aguilar returned and attempted another unlawful border crossing but was caught in the act once again. As a result, the Department of Homeland Security ("DHS") opted to reinstate his prior order of removal under 8 U.S.C. § 1231(a)(5). This time, Lara-Aguilar sought various forms of relief from removal, including asylum and withholding of removal. Although Lara-Aguilar was granted withholding of removal, the Board of Immigration Appeals ("BIA") concluded that he was ineligible for asylum under § 1231(a)(5) based on his reinstated order of removal.

This court recently held that an alien subject to a reinstated order of removal may not apply for asylum. See Mejia v. Sessions , 866 F.3d 573, 584 (4th Cir. 2017).

Lara-Aguilar, however, argues that because the factual basis for his asylum claim did not exist prior to his removal in 2013, Mejia does not cover his situation and he should be permitted to seek asylum based on the "changed circumstances" provision of 8 U.S.C. § 1158(a)(2)(D).

As explained below, we cannot subscribe to Lara-Aguilar’s position, which is inconsistent with both the statute and Mejia. Accordingly, we deny the petition for review.

I.

Lara-Aguilar is a native and citizen of El Salvador. In September 2013, he unlawfully entered the United States without inspection near Laredo, Texas. Lara-Aguilar was apprehended and placed in expedited removal proceedings; he did not express a fear of returning to El Salvador at that time and he did not apply for asylum. In November 2013, Lara-Aguilar was removed to El Salvador pursuant to an Order of Expedited Removal. In February 2014, approximately three months after having been removed, Lara-Aguilar returned and once again unlawfully crossed into the United States without inspection. He was apprehended by border patrol agents near Hidalgo, Texas, and placed in detention. On February 12, 2014, DHS notified Lara-Aguilar it intended to reinstate his prior order of removal pursuant to 8 U.S.C. § 1231(a)(5).

This time, however, Lara-Aguilar indicated that he feared political persecution were he to return to El Salvador. A DHS asylum officer therefore conducted a reasonable fear interview, during which Lara-Aguilar stated that because he supported and worked on behalf of the ARENA political party during El Salvador’s presidential election campaign in January 2014, supporters of the ruling FMLN party physically assaulted him on two occasions. On January 19, 2014, Lara-Aguilar was campaigning "house to house" for the ARENA party when he was accosted by FMLN supporters who told him to leave, punched him in "the stomach and the face," struck him in the back "with a long knife," and threatened to "chop [his] hands off." J.A. 395-96. Lara-Aguilar tried to report the incident to the police, but the police responded dismissively. Nonetheless, according to Lara-Aguilar, he continued his house-to-house campaigning activity until he had a second run-in with FMLN supporters. On January 23, 2014, FMLN campaigners stopped Lara-Aguilar and his colleagues—at gunpoint, this time—and tied their hands using the victims’ own shoelaces. The FMLN supporters warned Lara-Aguilar and his friends not to return, beat them, and discharged a round of ammunition near the group. Lara-Aguilar did not report this incident to local police "[b]ecause they had not listened to us the first time" and he "realized [reporting] it would be a waste of time." J.A. 398. Finally, Lara-Aguilar told the interviewing asylum officer that he could not safely live anywhere in El Salvador because "the FMLN is everywhere," J.A. 401, and that he therefore fled El Salvador for the United States, crossing the border without inspection on February 9, 2014. His wife and sons remain in El Salvador.

The asylum officer conducting the reasonable fear interview found Lara-Aguilar to be credible and concluded that he had "established that he was persecuted on account of his political opinion," J.A. 386, and that the government of El Salvador is "unable or unwilling to control FMLN party [members’] activities," J.A. 387. And, based on Lara-Aguilar’s credible testimony regarding his past persecution, the asylum officer determined that Lara-Aguilar had established "a reasonable fear of persecution in the future" because of his association with the ARENA party. J.A. 387.

Following the reasonable fear interview, Lara-Aguilar’s claim was referred to an immigration judge ("IJ") for withholding of removal 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) ). Even though the immigration regulations provided for withholding-only proceedings, see 8 C.F.R. §§ 208.31(e), 208.16, Lara-Aguilar sought asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The IJ concluded that § 1231(a)(5) precluded Lara-Aguilar from seeking asylum. The IJ did not provide an in-depth analysis of this issue, stating only that, "based on the regulatory framework," he did "not have the authority to consider an application for asylum." J.A. 127.¹ The IJ did, however, grant Lara-Aguilar withholding of removal under 8 U.S.C. § 1231(b)(3)(A), ordering that he "be removed to any country other than El Salvador." J.A. 130.

Lara-Aguilar appealed the IJ’s conclusion that he lacked the authority to consider the asylum claim to the BIA. Lara-Aguilar argued that "any bar that may exist due to the reinstatement of a prior order of removal does not apply where, as here, the asylum claim is based on events arising after the prior order of removal was effected. " J.A. 3 (emphasis added). Rejecting this argument, the BIA concluded that the relevant statutory provision, 8 U.S.C. § 1231(a)(5), "unambiguously states that an alien whose former removal order has been reinstated is not eligible, and therefore may not apply, for any relief from removal under the Act." J.A. 4. This provision, the BIA explained, "is intended to have an expansive meaning" and therefore cannot be read to foreclose only "asylum claims that arose prior to an alien’s removal," as "[n]either the statute nor the regulations address such an exception." Id. Accordingly, the BIA affirmed the IJ’s decision that Lara-Aguilar is ineligible for asylum.

II.

Lara-Aguilar petitioned this court for review of the BIA’s asylum decision. While Lara-Aguilar’s petition for review was pending, this court decided Mejia v. Sessions , which addressed the issue of whether 8 U.S.C. § 1231(a)(5) precludes individuals subject to reinstated removal orders from applying for asylum. See 866 F.3d at 583-88. We directed the parties to submit supplemental briefs regarding Mejia ’s effect, if any, on Lara-Aguilar’s appeal.

Mejia ’s fact pattern is substantially similar to the one presently before us with one notable exception: there, the alien had grounds to apply for asylum prior to her initial removal. In April 2015, Sonia Calla Mejia, a native of Peru, illegally entered the United States, crossing into Texas without presenting herself for inspection. She was apprehended by border patrol agents, and stated that she had come to the United States to "reside and work." Id. at 576 (internal quotation marks omitted). When she initially "denied that she would be harmed or face persecution if she returned to Peru," id. at 590 (Traxler, J., concurring in part and dissenting in part) (internal quotation marks omitted), agents placed her in expedited removal proceedings, see 8 U.S.C. § 1225(b)(1). Calla Mejia subsequently contradicted herself and stated she did, in fact, fear returning to Peru; accordingly, she was referred to an asylum officer for a reasonable fear interview. Calla Mejia told the asylum officer that she had been physically abused by her husband for years and that, because her husband was a police officer, law enforcement never afforded her any assistance or protection. The asylum officer determined that Calla Mejia had demonstrated a credible fear of persecution in Peru on account of her membership in a particular social group and placed her in full removal proceedings before an immigration judge. See Mejia , 866 F.3d at 577.

At a master calendar hearing, the IJ advised Calla Mejia of her "right to apply for asylum, withholding of removal, and protection under the Convention Against Torture." Id . at 577. However, the IJ also explained to Calla Mejia that because she initially told agents she was here simply to work, she had a significant credibility issue: "[I]f you want to apply for...