652 F. App'x 854
11th Cir.2016Background
- Edgar Lucas, a Guatemalan national, was subject to an expedited removal order issued May 19, 2012 after illegally crossing the border; he was removed that month.
- Lucas reencountered U.S. border authorities multiple times (2012–2013), each time DHS reinstated the 2012 expedited removal and removed him again.
- In 2014 Lucas unlawfully reentered, was arrested in Florida, pled guilty in 2015 to illegal reentry (8 U.S.C. § 1326), and was remanded for reinstatement of his 2012 removal under INA § 241(a)(5).
- While in custody Lucas expressed fear of return; an asylum officer found him credible but made an adverse reasonable-fear determination (no nexus to a protected ground and no government acquiescence). Lucas sought IJ review.
- Lucas filed a petition for review challenging DHS’s reinstatement; the IJ concurred with the adverse reasonable-fear finding on March 11, 2015. The Court considered whether the petition was timely and whether substantial evidence supported the adverse reasonable-fear determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition for review | Lucas: petition filed 33 days after reinstatement (Jan 21, 2015) but filed while reasonable-fear proceedings pending — should be timely when IJ ruled | Gov’t: petition untimely because filed more than 30 days after reinstatement | Court: petition was filed prematurely but became ripe when IJ issued adverse reasonable-fear ruling (Mar 11, 2015); motion to dismiss denied |
| Jurisdiction to review underlying expedited removal | Lucas: seeks to examine and challenge prior expedited removal(s) and contend he asked to apply for asylum in 2012 | Gov’t: expedited removal orders are largely unreviewable under § 1252(a)(2) and (e) | Court: lacks jurisdiction to review the underlying 2012 expedited removal(s); those claims dismissed |
| Eligibility to apply for asylum after reinstatement | Lucas: should be allowed to apply for asylum despite reinstatement | Gov’t: 8 U.S.C. § 1231(a)(5) precludes asylum applications by illegal reentrants with reinstated orders | Court: Lucas is ineligible to apply for asylum under § 1231(a)(5); only withholding/CAT via reasonable-fear process available |
| Substantial-evidence review of reasonable-fear determination | Lucas: gang threats (Mara) created reasonable fear of persecution/torture; IJ erred in adopting asylum officer’s adverse finding | Gov’t: adverse reasonable-fear decision supported; alternatively urged different standard | Court: substantial evidence supports the adverse reasonable-fear determination (no nexus to protected ground, no government acquiescence); petition denied on merits |
Key Cases Cited
- Avila v. U.S. Att’y Gen., 560 F.3d 1281 (11th Cir.) (reinstatement order is reviewable as a final order)
- Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223 (11th Cir.) (nexus requirement for withholding of removal)
- Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302 (11th Cir.) (criminal-gang targeting for refusal to join does not establish particular social group)
- Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir.) (noncriminal informants not a particular social group)
- Ruiz v. U.S. Att’y Gen., 440 F.3d 1247 (11th Cir.) (private criminal violence or noncooperation with criminals does not necessarily show persecution on protected ground)
- Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226 (11th Cir.) (abandonment of issues by failure to press them on appeal)
- Chao Lin v. U.S. Att’y Gen., 677 F.3d 1043 (11th Cir.) (filing deadline for petition for review in immigration proceedings is jurisdictional)
- Dakane v. U.S. Att’y Gen., 399 F.3d 1269 (11th Cir.) (procedural timeliness principles for immigration appeals)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (discussing consequences of illegal reentry and availability of relief)