889 F.3d 134
4th Cir.2018Background
- Francisco Lara-Aguilar, a Salvadoran national, was removed in Nov. 2013 after unlawful entry and then illegally reentered in Feb. 2014; DHS reinstated his prior order of removal under 8 U.S.C. § 1231(a)(5).
- Upon reentry Lara-Aguilar claimed a fear of persecution based on political opinion (supporting ARENA and being attacked by FMLN supporters); an asylum officer found him credible and referred him to an IJ for withholding-only proceedings.
- Despite seeking asylum, withholding, and CAT protection, the IJ and BIA concluded § 1231(a)(5) barred him from applying for asylum; the IJ granted withholding of removal.
- Lara-Aguilar argued that § 1158(a)(2)(D) (changed circumstances) permits asylum applications based on events arising after the initial removal, and thus § 1231(a)(5) should not block his asylum claim.
- The Fourth Circuit had recently decided Mejia v. Sessions holding that § 1231(a)(5) bars aliens subject to reinstated removal orders from applying for asylum; the court asked supplemental briefing on Mejia’s effect here.
- The court denied the petition, holding Mejia controls and that § 1158(a)(2)(D) does not create an exception to the reinstatement bar in § 1231(a)(5).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1231(a)(5) precludes asylum applications by aliens with reinstated removal orders | Lara-Aguilar: Mejia doesn’t apply to him because his asylum grounds arose after the initial removal; changed circumstances under § 1158(a)(2)(D) allow an asylum application | Government: § 1231(a)(5) categorically bars those with reinstated orders from applying for asylum | Held: § 1231(a)(5) bars asylum applications by aliens with reinstated removal orders; Mejia controls |
| Whether § 1158(a)(2)(D) (changed circumstances) overrides the reinstatement bar | Lara-Aguilar: (general-specific canon) § 1158(a)(2)(D) is a specific provision permitting asylum after changed circumstances and therefore should control | Government: § 1158(a)(2)(D) by its terms only applies to subparagraphs (B) and (C) and does not reference § 1231(a)(5); no conflict exists requiring the canon | Held: § 1158(a)(2)(D) does not apply to § 1231(a)(5); there is no textual conflict, so the reinstatement bar stands |
| Whether reading § 1231(a)(5) to bar changed-circumstances claims renders § 1158(a)(2)(D) superfluous | Lara-Aguilar: That reading makes § 1158(a)(2)(D) practically unusable for many aliens, violating the rule against superfluities | Government: Reinstatement is discretionary and not automatic; aliens can approach ports of entry lawfully; § 1158(a)(2)(D) still has application | Held: The argument fails—the changed-circumstances clause is not rendered superfluous as it applies to subparts (B) and (C) and to situations not involving reinstatement |
| Whether statutory interpretation produces an absurd result (different treatment for evaders versus reentrants) | Lara-Aguilar: Treating removed reentrants worse than aliens who evaded removal is absurd and contrary to congressional purpose | Government: Differential treatment is plausible and consistent with Congress’s goal of deterring illegal reentry; not absurd | Held: Result is not absurd under the controlling standard; disparate treatment is plausible and consistent with IIRIRA’s purpose |
Key Cases Cited
- Mejia v. Sessions, 866 F.3d 573 (4th Cir. 2017) (holds § 1231(a)(5) bars asylum applications by aliens with reinstated removal orders)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (interpreting reinstatement bar to limit relief despite lack of cross-reference in relief provisions)
- RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) (discusses application of general-specific canon where provisions conflict)
- Cazun v. Attorney General United States, 856 F.3d 249 (3d Cir. 2017) (supports view that reinstatement discretion and lawful port-of-entry options preserve changed-circumstances relief)
- Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016) (rejects assumption that § 1158(a)(2)(D) necessarily applies only to aliens who will be subject to reinstatement)