Cirilo G. Garcia, Petitioner,
Jefferson B. Sessions III, Attorney General of the United States, Respondent.
April 20, 2017
for Review of an Order of the Board of Immigration Appeals.
Manion and Rovner, Circuit Judges, and Coleman, District
Manion, Circuit Judge.
Cirilo Garcia is a native citizen of Honduras currently
subject to a reinstated order of removal. Federal regulations
say that aliens in his position 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).
However, because asylum is a form of discretionary relief, he
lacks standing to challenge the regulations prohibiting him
from applying for it. Therefore, we dismiss the petition for
lack of jurisdiction.
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 return 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,
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. 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 1-863,
Notice of Referral to the Immigration Judge, for full
consideration of the request for withholding of removal
only." (emphasis added)). Garcia then filed an
asylum application in Immigration Court on September 8, 2014.
October 29, 2014, the Immigration Judge granted Garcia
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
explained that she lacked the authority to reconsider the
reinstatement of Garcia's removal order. Garcia then
appealed to the Board of Immigration Appeals, arguing that he
has a statutory right to seek asylum under 8 U.S.C. §
1158(a). On July 25, 2016, the Board dismissed his appeal. It
explained that it lacked authority to declare the controlling
regulations in violation of the statute, but also noted that
"several federal courts have held a person in
reinstatement proceedings is not eligible for and cannot seek
asylum." This petition followed.
parties presented a straightforward question: may an alien
subject to reinstatement of a removal order apply for asylum?
The general asylum statute, 8 U.S.C. § 1158(a), says
"[a]ny alien who is physically present in the United
States or who arrives in the United States, ... irrespective
of such alien's status, may apply for asylum in
accordance with this section or, where applicable, section
1225(b) of this title." Garcia contends that this
language grants him the right to apply for asylum. The
Attorney General counters with the specific language of 8
U.S.C. § 1231(a)(5), providing that aliens subject to a
reinstated order of removal are "not eligible and may
not apply for any relief under this chapter." Since
asylum is a form of relief, the Attorney General argues that
Section 1235(a)(5) categorically prohibits Garcia's
of our sister circuits have agreed with the Attorney General.
See Jimenez-Morales v. U.S. Att'y Gen., 821 F.3d
1307, 1310 (11th Cir. 2016); Ramirez-Mejia v. Lynch,
794 F.3d 485, 489-90 (5th Cir. 2015); Hen era-Molina v.
Holder, 597 F.3d 128, 139 (2d Cir. 2010). But we need not
reach the question, because in light of our recent decision
in Delgado-Arteaga v. Sessions, No. 16-1816, 2017 WL
2001659, at *4 (7th Cir. May 12, 2017), it is clear that
Garcia has not suffered a sufficient Article III
injury-in-fact to confer federal jurisdiction. As we
explained in that case, "[a]sylum is a form of
discretionary relief in which 'there is no liberty
interest at stake.'" Id. (quoting
Delgado v. Holder, 674 F.3d 759, 765 (7th Cir.
2012)). Thus, denial of the opportunity to apply for asylum
does not constitute "an invasion of a legally protected
interest." Id. (quoting Spokeo, Inc. v.
Robins, 136 S.Ct. 1540, 1548 (2016)). Garcia lacks
standing and this petition must be dismissed.
asylum is a form of discretionary relief, Garcia has no legal
right to apply for it. Therefore, he lacks standing to
challenge the application of regulations preventing him from