Sonia Calla Mejia v. Jefferson Sessions III

court, in trial its factual basis determina- Boggala, effectively carry govern- tion, never the indictments mentionfed] ment’s for it. burden only the State’s factual refer[red] unwilling This I am respectfully do. I basis document. dissent. Id. at 453. Flint, As in the Information this case judge in the record when reviewed prosecution agreement

the deferred form Boggala. But

with there’s no indication judge that the examined the Information MEJIA, Sonia Calla Sonia a/k/a incorporated it into otherwise her collo- Calla-Mejia, Petitioner, quy Boggala. Her cursory with reference Information, placed when into con- text, merely cannot suffice—she asked III, Attorney B. Jefferson SESSIONS attorney why assistant district the docu- General; Duke, Acting Elaine Secre Simply put, bridge ment no existed. there’s tary Department of the of Homeland judge’s reference to between “the facts Security, Respondents. against [Boggala] to be used ... should prosecution necessary” become the In- Immigration Lawyers American Associ pure speculation.2 formation other than ation; Immigrant National Justice Cen ter, Supporting Amici Petitioner.

II. No. 16-1280 sum, In no there is factual basis suffi- finding of guilt against cient warrant a United Court Appeals, Instead, Boggala. that all exists on this Fourth Circuit. Boggala record entered into a de- Argued: March prosecution agreement ferred for the of- of soliciting by computer fense a child August Decided: commit an act in unlawful sex violation 14-202.3(a). listing N.C. Stat. Gen.

of the offense and offense date and the of “responsibility”

admission do not qualify immigration

as a “conviction” for purposes they not support judicial

because

finding guilt. To requires hold otherwise speculate, against

that we draw inferences 2007) (Rule speculation necessary magistrate 2. The to make sense not satisfied where colloquy judge it means that would also fail to recommended that the district court satisfy accept guilty plea Federal Rule of Procedure based on Criminal the defendant’s ll(b)(3)'s “[bjefore requirement entering the erroneous conclusion that there was it, judgment guilty plea, on a sufficient factual basis for the district court must court, "recognizing] determine that there is a factual basis for that had th[e] failure DeFusco, plea.” Compare proceeding, in the Rule 11 United States v. occurred ... (4th 1991) (Rule hearing F.2d 11 satis characterized as one on an Al- “provided plea” "explain[ plea fied where but didn’t ] defendant the court ford Alford signed agreement with a statement of facts which he his [the or] enlist[ defendant ] one”). Here, majority engages rep admitted on the record was an accurate enter into happened”), type post analysis resentation of what in the hoc United same Mastrapa, upon Mastrapa. States v. frowned removal order. When previous Morgan Goodspeed, HO- her L. ARGUED: placed Mejia sought asylum, DHS her LLP, Washington, US GAN LOVELLS “withholding proceedings removal-only” D.C., Pa- Alexander Petitioner. Manuel apply ineligible and deemed lau, DEPARTMENT UNITED STATES her reinstated because D.C., JUSTICE, Washington, OF Re- Maryland An IJ concluded that order. E. Stet- BRIEF: Catherine spondent. ON ineligible but Mejia was Owusu, Guimond, son, B. Hamida Evan W. granted her of removal. Houten, LOVELLS Mary HOGAN S. Van us, that, Before contends D.C., LLP, for Petitioner. Washington, US status, is entitled to irrespective Mizer, Deputy As- Principal C. Benjamin 8 U.S.C. General, Scadron, Attorney Terri sistant or, in the alternatively, because defects Director, Immigration Office of Assistant underly- proceedings June render Division, Litigation, Civil UNITED government ing removal The order invalid. JUSTICE, OF DEPARTMENT STATES jurisdiction over Cal- lack counters that we D.C., Respondent. Mark Washington, merits, gov- On appeal. la IMMIGRATION, Barr, Den- LICHTER 1231(a)(5) ernment asserts 8 U.S.C. Zwick, Colorado; Roth, ver, Charles Keren categorically prohibits individuals JUSTICE IMMIGRANT NATIONAL applying orders of removal instated CENTER, Illinois, Amici Chicago, Cu- and, relief, asylum alternatively, rejects riae. Mejia’s objections to the June 2015 Calla hearing meritless. as DIAZ, FLOYD, TRAXLER, Before Judges.

Circuit jurisdiction explain, As we we have Mejia’s statutory claim but

consider Calla challenges to not her the June 2015 remov-. to the respect al order. With claim, directly Congress hold that an spoken precise question issue: or- alien a reinstated Mejia—is precluded from Calla der—-like Accordingly, asylum. we dis- applying for DIAZ, Judge: Circuit in Mejia’s petition for review miss Calla enduring years of domestic abuse After part. in deny petition part and husband, of her at the hands Peruvian Officer, Mejia Police Calla National Sonia I. Peru the Unit- fled her native and entered Peru, Mejia fled The first time Calla she in De- illegally April 2015. The ed States the Rio from Mexico waded across Grande (“DHS”) Security partment of Homeland States, she into where the United and, Mejia following Calla a June detained & apprehended by U.S. Customs Border Judge hearing Immigration Laredo, Mejia Patrol near Texas. Calla (“U”) Texas, in her to Peru. removed agents Patrol that she came to told Border later, Mejia attempted Calla Months and work in States to “reside United States, again years.1 period re-enter the United and was York” A.R. New for a five DHS, apprehended by which reinstated 218. fear, express dispute Mejia point parties whether and when did at some as Calla returning Mejia expressed asylum No fear to Peru. undisputedly to an she was referred logic required stretch of to conclude that detention, Mejia in asylum-

While was re- officer. If those two statements officer, asylum ferred who conducted are not you consistent with each other a credible-fear interview. Calla in- credibility problem. have a Credibility formed the officer that she had problems extremely are difficult over- threatened, beaten, brutally been come law. under our raped years. her husband several A.R. 556-57. explained that reported She when she his The IJ then addressed indi- Peru, police abuse to the “after [she] vidually. confirmed police told them husband was a offi- [her] rights explained. understood The IJ they just cer left waiting there [her] noted that Calla “told the second they helped never A.R. 212. Calla [her].” officer of returning [she fearful was] told the officer that she country,” that, [her] she “told the but first safely couldn’t live anywhere Peru be- going live New [she was] officer York husband—using investiga- cause for five years and [she was] afraid to tive at his disposal police résources as a return.” A.R. 561-62. informed IJ Cal- undoubtedly officer—would look for her want, la Mejia, you “if asylum, harm her. The officer conclud- withholding of removal and Convention ed had demonstrated Against relief, it, I Torture allow but will I of returning fear credible Peru and you, you tell have credibility should a Mejia consequently placed-.in Calla was a problem. A one.” A.R. 562. Calla serious proceeding pursuant full removal to 8 Mejia subsequently declined to apply for U.S.C. 1229a. relief, removal, of accepted the order and After served her a DHS with Notice to right appeal. her waived The IJ issued a Appear, Mejia appeared pro Calla se be- removal, Mejia final of and Calla was order fore an IJ in Texas. This June Master 22,2015. removed Peru June Hearing Calendar was consolidated with removed, Mejia Once Calla returned to hearings of seven other women and in home Peru. Her family husband by conducted IJ via videoconference.2 back, she soon learned that was entered Through Spanish-language interpreter, a house, her, her family’s raped attacked and the IJ of rights advised the women their in her. Calla then to the fled United proceedings, the removal their including time, she second where was im- right for apply asylum, withholding of mediately apprehended by detained removal, protection under the Conven- Border to 8 Patrol. Pursuant U.S.C. Against tion Torture. IJ spoke also § 1231(a)(5), DHS reinstated Calla length credibility, explaining: about June 2015 removal. By of you given now each at least separate subsequently two sworn statements. You Calla was trans- gave patrol one to the border when a detention in you ferred center Maryland, where, were apprehended and expressed another she after fear 1225(b)(l)(A)(ii)' matter, officer. (pro- proceedings. general pur- U.S.C. al As a Cf. viding immigration that an “shall refer pose hearing officer explain of the is to to the alien asylum alien an [an] interview an offi- charges removability, advise the alien expresses cer" if the alien “an intention to rights proceedings, of her in the ask the alien apply asylum" or “a fear indicates whether she or admits denies the factual alle- persecution"). gations removability and her charges, hearings. and schedule additional Hearing typically 2. A Master Calendar See 8C.F.R. 1240.10. appearance alien’s first before an IJ in remov- II. Peru, asylum officer conduct- turning, to asylum interview. ed a reasonable-fear a brief overview the begin with We Mejia credibly es- Calla officer found that of the Immi- statutory provisions relevant persecution fear of reasonable tablished a (“INA”). Nationality Act gration Mejia remained in But because Peru. that she is entitled seek Mejia’s claim removal, subject to a reinstated order notwithstanding her reinstated' re- “withholding-only” pro- placed her DHS relationship on the moval order centers n ceedings. statutes: 8 between U.S.C. two ' statute, 1231(a)(5), and U.S.C. counsel,' filed aid With the discussing bar. Before the reinstatement supporting applicatioii Forma 1-589 first the dis- examine these provisions, asylum, asserting eligibility briefs removal, tinction between removal, and Convention withholding of Mejia in the granted to Calla the IJ protection. Calla Against Torture asylum, proceedings, February placement in despite her contended seek. which Calla continues proceedings, was withholding-only apply asylum. eligible statutorily A. that her Mejia argued Alternatively, Calla invalid original order was due discretionary re Eligibility for the the June constitutional defects requires an alien to lief of show hearing in Texas. “refugee,” person that she is a “un country unwilling to to” a return able the IJ Mejia appeared has a “well-founded fear because she urged that February 2016. Her counsel race, religion, on account of persecution asy- eligible membership particular in a so nationality, that the rein- responded lum.3 But the IJ group, political opinion.” 8 U.S.C. cial Calla removal order rendered stated l-101(a)(42)(A)(defining the “refu §' term ineligible asylum for and concluded 1208.13(b) § (providing eli gee”); 8 C.F.R. authority to consider the she lacked the standard). Critically, Attorney “the gibility point, Calla asylum. for At that application required grant asylum is not General application. withdrew counsel everyone meets the definition refu who Cardoza-Fonseca, regarding the do- gee.” testified 480 U.S. INS 1207, n.5, her fear mestic she suffered and abuse had 107 S.Ct. L.Ed.2d granted (1987). Instead, Peru. IJ returning “the decision whether withholding for Mejia’s application granted eligible to an asylum should moval, Mejia credibly finding Attorney that Calla is committed Gener alien persecution in the form past Aguirre-Aguirre, established INS v. al’s discretion.” violence, govern- 415, 420, the Peruvian domestic 526 U.S. protect (1999). inability unwillingness

ment’s L.Ed.2d 590 her, safely inability to relocate and her contrast, applicant an for By “[i]f in Peru. and DHS elsewhere withholding of removal establishes ruling. appeal of the IJ’s waived claim, re Attorney General cannot country.” native Anim v. move her petition

This for review followed. ment, asylum. requested apply for Mejia's that DHS so that counsel prosecutorial dis- re-charge seek her removal in DHS declined'to exercise and cretion. proceeding, rather than reinstate- a full Mukasey, 2008) aliens aggravated convicted an felony (internal omitted). quotation marks Ac- from applying for asylum, see Immigration cordingly, -withholding to obtain of remov- Act of 101-649, 515, § Pub. L. No. al, satisfy an alien “a must more demand- 4978, 5053, 104 Stat. the text of asylum ing proof than asylum standard provision largely remained unchanged un- claim.” Id. She “must that if she establish til Congress when passed Illegal was sent back to her home country, there Immigration Reform Immigrant' Re- is a probability clear .that her ‘life or free- sponsibility (“IIRIRA”), Act of 1996 Pub. dom would be ... threatened because of 104-208,110 L. No. Stat. 3009-546.IIRIRA race, religion, nationality, [her] member- asylum recodified provision at 8 U.S.C. ship particular in a group, social or politi- § 1158 and it' reformatted into two sec- ” (omission opinion.’ cal Id. at 252-53 1158(a)(1), § tions: provides now in original) alteration (quoting 8 U.S.C. “[a]ny 'irrespective alien ... of such 1231(b)(3)(A)); § see also 8 C.F.R. status, alien’s may apply asylum,” for 1208.16(b). 1158(a)(2), which' enumerates certain

Withholding of removal aliens asylum ineligible who are to apply classes regard asylum. also differ with for the benefits granted to an “[Ajsylum alien. affords amended, Specifically, as grant [aliens] broader benefits” than a of provision provides now individuals removal,

withholding of including the op who could be removed to a “[s]afe third portunity adjustment perma lawful country,” 1158(a)(2)(A), to timely failed status, nent ultimately, resident citi apply asylum, 1158(a)(2)(B), or were Cardoza-Fonseca, zenship. U.S. 428 previously 1158(a)(2)(C), denied asylum, n.6, Asylees may peti 107 S.Ct. 1207. also are statutorily ineligible to asy- apply tion asylee for derivative status for certain 1158(a)(2)(D), however, lum. Section sets family members. C.F.R. 1208.21. out an exception to exceptions: these Not- Moreover, while of removal withstanding previous asylum, denial of only prevents the removal an alien to alien if alien the. specific country perse where she faces successfully “the demonstrates existence cution—thereby leaving open possibili changed materially circumstances which ty of country, transfer a third id. affect applicant’s eligibility § 1208.16(f)—asylum prevents removal or extraordinary relating circumstances to from entirely. Finally, the United States delay filing the application.” an granted withholding aliens of removal are subject restrictions, to a of number includ C. ing ability limitations on their to work in 1158, § In revising addition to IIRIRA States, 247a.l2(a)(10), § the United id. 1231(a)(5), § governs enacted the § to internationally, travel id. 241.7. reinstatement of removal orders. Before B. IIRIRA, illegally aliens who re-entered the placed United after removal were enacted, originally As asylum provi- the the proceedings same removal sion on those Mejia granted relied “an aliéns subject previous not to a irrespective alien ... removal of such alien’s sta- tus,” order, right affording hearings them apply asylum. the additional 1980, Refugee 96-212, Act Fernandez-Vargas of Pub. L. before an IJ. See v. No. 102, § Gonzales, 34-35, 94 105. excep- Stat. 548 126 With U.S. S.Ct. tion of (2006). a 1990 amendment that prohibited 165 Frustrated L.Ed.2d has a reasonable existing of mine whether the alien duplicative nature this a sought asy- hard- If an process, Congress persecution “toe[ ] of or torture.” fear id., reentrants,” by- “illegal er line” with has a lum officer concludes that the alien providing: or tor- persecution fear of “reasonable an Attorney ture,” General finds that

If the to an “for full the case referred IJ reentered the United States alien has request consideration of the withhold- having removed after been illegally C.F.R. ing only.” voluntarily, having departed under 1208.31(e).4 Appeal of the IJ’s decision removal, prior order order request of remov- as to tjie original from its removal is reinstated Ap- Immigration al lies with Board subject being and is not date (“BIA”). separate regulation Id. A peals reviewed, the alien is opened subject to a reinstat- permits an individual any eligible apply relief protection removal order also seek ed 8], 12 of Title and the [Chapter under Id. Against Torture. under Convention prior shall be removed alien 1208.16(c)(4). reentry. order at time after the 1231(a)(5). 8 U.S.C. III. such, enlarged the class of As IIRIRA statutory Mejia maintains that the illegal subject summary reentrants re asylum provision, language reinstatement, “explicitly insu moval after § 1158(a)(1),'gives right her the review, thefir] removal orders late[d] In irrespective her status. generally discretionary re foreclose[d] alternative, Mejia argues that lief from the order.” terms the reinstated statutory defects in constitutional and andez-Vargas, U.S. at Fern underlying hearing render the June 2422. seeks, either removal order invalid. She on 1231(a)(5), Attorney To effectuate ground, adjudication applica- promulgated General C.F.R. 241.8. tion the merits. regulation, if an im- Typically, under (1) migration “the alien officer determines: A. prior of remov- has been (2) al”; “the is in alien who [the] alien fact (3) removed”; “the previously matter, we As a threshold must deter- unlawfully United alien reentered the jurisdiction Mejia’s over Calla mine our States,” right no then alien claim, question of that we law IJ, hearing before an shall be sum- Holder, Kporlor consider novo. de marily prior order. 8 removed under the 2010). govern- 241.8(a)-(c). However, regu- C.F.R. ment has dismiss Calla moved exception for an alien provides lation part ground on the petition, premised returning expresses who a fear administratively failed to that Calla in designated the reinstated country asylum-eligibility claim before exhaust her 241.8(e), § moval order: under C.F.R. response, the IJ BIA. In immediately “the alien referred shall to that, existing statutory urges under asylum for an to deter- officer interview Nationality; Security; Homeland originally promulgated Aliens regulation 4. This was 208.31(e), Reorganization Reg. Regulations, 68 Fed. in but recodified as C.F.R. 28, 2003). (Feb, 1208.31(e) applicable, Where to reflect the 2008 at 8 C.F.R. DHS, regulations, refer to the recodified of functions of INS to transfer scheme, regulatory no had forum steps she agency out, that the doing holds litigate asylum to her claim and therefore properly,” so we concluded that the alien satisfactorily exhausted the remedies avail- required wasn’t legal to raise his chal- agree able to her. Mejia. We -with Calla lenges to removal before satisfy DHS to Specifically, we ju- conclude we have 1252(d)(1). (alterations Id. at omit- risdiction to petition hear Calla ted) (quoting Ngo, 548 U.S. Woodford right” because had no avenue “as of to 81, 90, L.Ed.2d 368 asylum entitlement to while assert. (2006)). placed in withholding-only proceedings. As an subject alien to a reinstated INA, Under the an alien must ex order, removal no likewise had “all administrative haust remedies avail avenue to assert her claim of to right” filing the alien as able to entitlement before the IJ and petition for a final review re because, BIA existing regula DHS 1252(d)(1) (emphasis moval. 8 U.S.C. tions, she was right” entitled “as of to seek added). an alien an opportunity “When has only withholding removal. See 8 C.F.R. to raise a claim in proceed administrative 241.8(e), §§ 1208.31(e). Once an of so, ings but to does do he fails exhaust ficer that an alien finds shown rea his administrative remedies as persecution torture, sonable fear of Lynch, claim.” Etienne v. 813 F.3d agency holds out individuals to a 2015). Notwithstanding this reinstated order of hearing removal a be rule, recognized we’ve that the INA’s ad possible fore an appeal IJ and BIA requirement ministrative-exhaustion “for withholding of removal only.” Id. deprive jurisdiction doesn’t us to consid 1208.31(e) added). (emphasis er in the first instance an alien’s claim Contrary dissent, to the view of the where “the relevant statutes and corre opportunity mere to mention a.claim sponding regulations provide [do] proceedings is not administrative the same lodge alien with an avenue” to her chal having right” an avenue “as do so. (alterations lenge. omitted) at 140' Id. The dissent makes much of the fact that (quoting Holder, Valdiviez-Hernandez v. Calla Mejia Form filed before the IJ a I- 184, 187 (5th 2013)). Asylum 589 Application for and asserts reasoning Our Etienne instructive. that the BIA legal could have decided the case, In that we considered whether we arguments she raised as to her entitle- jurisdiction to legal had hear an alien’s colleague ignores ment. But our that DHS challenges to his removal the alien where regulations expressly limit Calla expedited to raise them in the failed DHS seeking anything other than with- gov- Id. at proceedings. 138. The holding of and BIA removal. While IJ juris- contended that ernment we lacked Mejia’s statutory could listen diction because the alien failed exhaust claim, regulations asy- are clear that pursuant his administrative remedies lum is to her in the unavailable administra- 1252(d)(1). examining Id. After DHS proceedings. opinion tive An by the written regulations applicable agency forms— BIA to IJ and that effect—no matter how expedited out” to aliens in “h[eld] carefully change considered—does not only removal proceedings opportunity fact that Calla no lodge had “avenue” challenges factual to removal—we rejected government’s pro- argument. assert entitlement Id. at “[ejxhaustion Reasoning ceedings seeking withholding 141-42. for reserved using administrative remedies means all removal. 1999).6 (4th Mejia’s asylum claim Calla

Moreover, readily dispel gov- the Cir. canwe suggestion that administrative futility exception because ernment’s falls within this Mejia to Calla because available relief was regulations the BIA—bound follow DHS General, pursuant Attorney the to overturn them— authority and without 1003.1(h)(1), could have reviewed C.F.R. 1208.31(e) to preclude applies 8 C.F.R. reg- rescinded potentially her case and reinstated reriioval subject to a individuals eligibility her foreclosed .to ulation asylum. Orqu applying regulation provides asylum. The apply for (4th Ashcroft, 424 n.8 era v. F.3d may be referred that the General Attorney 2003) adjudicar (observing that where (1) only ways: three from BIA a case power body administrative lacked tive Attorney directs the refer- if General regulation as unconstitu an INS invalidate ral; (2) or of the if the Chairman majority authorizing contrary to the stat tional or referred; BIA the case should be believes ute, arguments with the “raising] these (3) Secretary of Homeland Securi- if the body] have been futile” [adjudicative would C.F.R. ty referral. directs . 345)). (citing Selgeka, 184 at F.3d 1003.1(h)(l)(i)—(iii)l Mejia §' Calla therefore triggered Attorney have could not. acknowledges that the government of her case. review General’s applied regulation BIA would have Thus, controlling because DHS Mejia’s appeal as to her dismissed limit like Calla .regulations individuals Me claim, but that Calla Me- contends jia only “full consideration seeking jia appealed none- should have the.BIA removal,” withholding request [their] remains, however, that theless. The.fact id., that Calla exhaust we conclude only remedy having granted the been remedies available to ed all administrative available to under the her pursuant to 8 right” “as of Ú.S.C. her scheme, any'attempt by regulatory 1252(d)(1).5 also con government BIA before the seek waived her statuto tends that Moreover, doing have been fruitless. would her motion ry claim because she withdrew government suggests would have as the granted when the IJ 'to required to .remain detained withholding of removal application for. awaiting appli- the BIA’s inevitable while appeal to she didn’t the BIA. because regulations subsequent cation of DHS “[g]enerally, any claim raised Although asylum. appeal dismissal We waived[,] ... .a the BIA is claim before pointless such a endeav- won’t countenance it would be futile to raise not waived whén Carroll, 184 F.3d or. Selgeka v. it.” Selge- statutory asylum-eli accepting dissent’s view that Considering 6. Even the- same says Mejia, .it its gibility Ninth ka doesn’t mqan issue raised what Lynch futility applies rather than rejected rule "forfeited” Circuit v. Perez-Guzman claims, that, agree that Calla peti government’s "waived” cannot assertion because ”relinquish[ed] .'.. a abandoned] put the BIA on notice of tioner failed Op., (quoting right.” at 596 statutory argument, had not his known See Dissent he exhausted United Olano, 725, 733, 507 U.S. administrative remedies. (1993)). 2016). view,- Cal 113 S.Ct. 123 L.Ed.2d In the court’s because authority disregard limited to "full consideration la [8 had no "the BIA 1208.31(e)],” only” petitioner request for of removal did not C.F.R. appeal BIA there argument asylum eligi the IJ and his need to exhaust 1208.31(e). from, Perez-Guzman, She could not bility. 1073. So 8 C.F.R. toó right she not have. abandoned a did here.

583 Having juris- determined that we have 3. Mejia’s statutory diction over Calla claim question (cid:127)The whether an individual sub asylum, turn to the merits. ject to a reinstated removal order is ineli gible to seek is impres one first 2. sion in our circuit. our Six sister circuits Mejia’s petition challenges question considered agree and all the validity agency’s the interpretation an such ineligible individual is to ap preclude of the reinstatement bar to indi ply asylum. See Garcia Garcia v. Ses subject to or

viduals reinstated removal sions, 27, (1st 2017); 856 F.3d Cir. from applying asylum. ders To resolve Cazun Att’y U.S., 249, v. Gen. 856 F.3d construction, of statutory this issue ap we (3d 2017); Cir. Jimenez-Morales v. ply the two-step pre familiar framework Gen., Att’y (11th U.S. 821 F.3d Chevron, U.S.A., scribed Inc. v. Natu 2016); Perez-Guzman, Cir. 835 F.3d at Council, Inc., ral Resources Defense 1070; Ramirez-Mejia Lynch, v. 794 F.3d 837, 842-45, U.S. 104 S.Ct. 81 485, (5th 2015), Cir. pet’n reh’g en Chevron’s, (1984). L.Ed.2d 694 “At first 24(3(5th denied, 2016); banc 813 F.3d Cir. step, plain we examine the statute’s lan Holder, Herrera-Molina v. 597 F.3d if guage; Congress spoken clearly (2d 2010). Cir. issue, precise- question at statutory Three of these circuits have held that language Ojo Lynch, controls.” F.3d clearly precludes reinstatement bar an (4th 2016) (internal quota 538-39 subject to individual a reinstated removal omitted). tion marks In conducting this order from seeking asylum relief. See Jim inquiry, employ “we the traditional rules of enez-Morales, 821 at (examining F.3d construction,” statutory by “considering] 1231(a)(5) concluding 1158 and scheme, statutory legislative the overall is a form of relief history, “[a]s> history evolving congres removal” in Chapter contained 12 of Title regulation area, sional in the and other Code, 8 of U.S. individual USA, Philip relevant statutes.” Morris eligible reinstated removal “is Vilsack, Inc. v. 736 F.3d asylum”); for and cannot seek Ramirez 2013) (alteration quotation internal -Mejia, (considering 794 F.3d omitted). step marks At one of Chevron “discretionary 1158’s con nature” and purely “we focus on statutory construction cluding “[a]ffording asylum relief according any weight agen without (inter aliens cy’s orders are position.” Ojo, 813 at 539 whose removal reinstated omitted). 1231(a)(5)]”); quotation nal would be [§ marks inconsistent with Herrera-Molina, (examin 597 F.3d at 139 If “Congress we find that has not 1231(a)(5) ing plain language spoken, so in that statute is silent or regulations holding DHS that “relief ambiguous, we agency’s defer inter .withholding other ... is than pretation if it Id. at 539 is reasonable.” petitioner”). not available (internal omitted). quotation marks “We remaining forged circuits have usurp agency’s therefore will not inter path. different attempting After to har- authority pretive by supplanting its con 1231(a)(5) by looking monize 1158 and own, struction long with our so as the plain interpretation language provisions, arbitrary, capricious, employing manifestly contrary to the canons construc- statute.” (inter USA, tion, Philip reviewing history Morris at 290 legislative omitted). IIRIRA, quotation nal marks the Third and Ninth Circuits status, asylum.” may apply for spoken not such alien’s Congress had concluded that Cazun, 1231(a)(5) alien And, that an § commands instant directly to the issue. Perez-Guzman, 255-59; of removal subject to a reinstated order at 856 F.3d Circuit, by [Chap- First “may apply not relief F.3d at 1074-77. then, contrast, deciding that an glance, At first 8].” assumed without ter 12 of Title interplay of in the. ambiguity asylum exists in eligibility of grant broad 1231(a)(5). 1158(a)(1) § § Garcia Gar 1158(a)(1) as the just § absolute seems as cia, thus at 38. These courts F.3d sub- on relief for aliens prohibition broad step, and on to Chevron’s second moved in orders to reinstated removal ject there, agency’s interpreta found once 1235(a)(5). provision § is yet, And neither 1231(a)(5) to asylum § to relief tion of bar absolute. or to removal subject

those reinstated with, by § begin 1158 is its To restricted in 8 C.F.R. ders—a construction embodied 1158(a)(l)’s § Specifically, terms. own 1208.31(e)—to there § be reasonable and “[a]ny may apply for guarantee that alien” Gar See Garcia deference. fore entitled 1158(a)(2)’s § by is clarifi- limited 38-41; Cazun, at cia, 856 F.3d of types some aliens cation that there are Perez-Guzman, 259-61; 1079- 835 F.3d at asylum. In the apply for who 1231(a)(5)’s ap- § way, prohibition same view much to in the There is commend subject important to an plying for relief is Third, that First, Circuits of and Ninth 1231(b)(3)(A) caveat, § in restricts the that 1231(a)(5) §of interpretation agency’s removing an alien Attorney General preclude asylum relief is a reasonable qualifies removal. who But thereby one entitled deference. Thus, notwithstanding reinstatement below, ambi- explain we discern no as we language, broad “that section does bar’s 1231(a)(5) § interplay guity between Cazun, types of relief.” not bar all that, 1158(a)(1). it think clear We J., (Hardiman, concurring at 264 bar, Congress enacting the reinstatement words, In the text of both judgment). other subject to preclude intended individuals at first blush abso- provisions—though applying reinstated orders from removal flexibility.” “interpretive lute—allows for asylum. Accordingly, we hold that Br. at 26. Pet’r’s asylum. ineligible to apply is Mejia’s reject con- therefore We unambig- that a. tention statute “[a]ny alien application in its uous broad statutes, considering In these status,” 8 ... such alien’s irrespective of “fit, parts into goal possible, is to if all our added). 1158(a)(1) (emphasis Cal- U.S.C. & FDA v. Brown an harmonious whole.” Mejia argues only exceptions that la Corp., Tobacco 529 U.S. Williamson appear categorical eligibility rule 133, 120 L.Ed.2d itself, §of closed within the universe (2000). language plain Because “the Mejia, none which the most indicator statute is reliable all Congress therefore intended intent,” Congressional look there first. aliens, even reinstated those (alteration Ojo, 813 F.3d at and inter orders, asy- be eligible to seek omitted). quotation marks nal lum. plain text 1158 and arguments—lodged 1231(a)(5) textual reveals a between tension 1158(a)(1) they are in a vacuum—do provisions. pro- these Section interpretative with our “[a]ny ... little to assist us irrespective claims that alien with, support In that Congress task. agree view But we govern- also don’t spoke directly to this issue the text of the-plain 1231(a)(5) ment text of statute, argues resolves this According issue. gov- ernment, Congress 1231(a)(5) broadened the class more when, plainly aliens who by could seek state that an alien subject to a IIRIRA, enacting it reinstated amended the removal' order “is eligible relevant 1158(a)(l)’s contained in not apply § modifier any relief grant under” Chapter 12 of eligibility from “an Title “any alien” to wherein alien.” Thus, statute can Mejia’s But be found. Congress’s asy- claim that because lum is clearly “form of intent is clear a relief made it under this because selected chapter” 1158(a)(1) § which a reinstatement bar a word with particularly applies, the government says we’re “expansive meaning,” bound United States v. give Congress’s effect to unambiguous Gonzales, 1, 5, 117 1032, 137 520 U.S. S.Ct. But, Mejia’s intent. as with Calla textual (1997), applies L.Ed.2d 132 equally to arguments, government’s argument 1231(a)(5)’s § relief,” on “any bar selected falls short it too square because fails to by Congress day. same prohibition oh seeking reinstatement bar’s Similarly unavailing Calla Mejia’s’ is ar “any grant relief’ eligi- with broad 1231(a)(5) § gument that is inapplicable to bility in asylum provision. forms that do not explicitly relief refer Accordingly, turn canons of we ence the reinstatement In her if view, bar. statutory construction harmonize these Congress truly exempt intended to individ Chevron, provisions.7 n.9, U.S. at 843 467 subject uals to reinstated removal orders (instructing 104 S.Ct. courts to em 2778 1158(a)(l)’s reach, § from it broad would statutory tools of traditional construc ploy § by including have done so within 1158 an .intent). tion to Congress’s ascertain clear 1231(a)(5). explicit § cross-reference to construction, statutory “As a rule of ... But, out, government points as the if the specific terms of a scheme only reinstatement bar applied those Cardall, general govern D.B. v. ones.” types amended cross-reference relief 2016) (citing 1231(a)(6), then the reinstatement bar Hotel, Gateway RadLAX LLC v. Amal superfluous would rendered “because Bank, gamated U.S. Congress specifically did not [so] amend 2065, 2071, (2012)). This L.Ed.2d any of provisions Chapter the relief is “particularly applicable rule where ‘Con Moreover, 12 of Title Br. at 8.” Gov’t’s 31. gress comprehensive has a enacted scheme favored construction would deliberately targeted specific and has directly Supreme contravene the Court’s solutions,’ problems specific it with 1231(a)(5) recognition that bars an alien immigration done in the Id. context.” subject to a reinstated removal from 2071). RadLAX, (quoting 132 S.Ct. at status, applying adjustment notwith standing adjustment-of- fact that Though it is,-admittedly “[s]ome- provision, status 8 U.S.C. contains times ... difficult .to whether determine a no one,” reinstatement bar. See provision reference general specific is a a Fernandez-Vargas, 126 conclude -that the U.S. bar is reinstatement S.Ct. 2422. more specific asylum provision than .the government proposes provisions that the "later- us both because were codified si- 1231(a)(5) prevail enacted” should over multaneously in IIRIRA. 1158. But tie-breaker is unavailable to hand, one subset-of specific statutory inqui deals with controls our

and therefore Garner, Bryan A. to rein- recipients—aliens & ry. Antonin Scalia those Legal Interpretation Law: Reading attaches to removal orders—and stated (2012). general- Texts We categorical exemption a this subset “to statutes specific of construction rule 12 of Chapter all forms relief found ... contra permission is general a Code, including' asylum. of the Title 8 U.S. D.B., prohibition.” specific dicted view, categori- In that attaches a our law (internal quotation marks at 735 specific subset of aliens prohibition cal on a readily omitted). fall provisions These to control it sensibly read when most 1168(a)(1) categories: con these within grants permis- conflicts the law permission—allowing general tains sion. asylum—that for is apply to “[a]ny alien” 1231(a)(5)’sspecific pro by § contradicted bar as a Classifying the reinstatement hibition—forbidding subject to individuals 1158(a)(l)’s general § specific exception to seeking of from reinstated orders eligibility effectively of more har- grant Thus, “in order to ‘eliminate relief. provisions Calla Mejia’s monizes the than 1231(a)(6) § contradiction,’” construe we As to her proposed method. an alternative specific exception to serve as a canon, general-specific of the invocation 1158(a)(l)’s eligibility general § grant narrowly asks us to construe D.B., at asylum. 736 apply for of, term “relief’ undefined 2071). RadLAX, at 132 S.Ct. (quoting 1231(a)(5)' ordi- “[encompass] so as to 1158(a)(1) that argument Mejia’s rules,” deportation, nary...waivers gen: specific provision is the voluntary departure, adjustment as such 1231(a)(5) yield §of provision eral must status, removal, cancellation “but urges incorrectly .inquiry. frames the She forms, exclud[ej of redress that amount only generally bar that the reinstatement protection—asylum, . with- humanitarian subject to a an individual reinstat- forbids removal, holding of and [Convention “any applying from ed removal order protection.” Br. Against Torture] Pet’r’s 1231(a)(5), asylum stat- relief,” § while the omitted). Putting aside the (emphasis form of relief specific deals with one ute withholding of question of remov- whether question asylum. from But the we removal: under the protection al and Convention type of reliéf is must resolve is not what Against properly categorized Torture are available; instead, question the antecedent - “relief,” we think it be- “protection” as is who is relief. entitled asylum is form “re- yond doubt closer The reinstatement bar “comes Denedo, E.g., United States v. lief.” posed by the addressing very problem L.Ed.2d S.Ct. U.S. deserving of case at is more hand and thus (2009) Garner, (defining supra, at the “familiar mean- & 183. credence.” Scalia “any ing” of “relief’ as ‘redress benefit’ differently, asylum provision Stated by (quoting Law provided a court” Black’s (and qualified) lays general terms out 2004))).8 Dictionary ed. permis- eligibility asylum. This’grant im- Mejia’s proposed construction would recipient that the of the presupposes sion Congress’s intention permissibly override- regula- to. grant—the alien—is amenable bar, types on limit of relief the other available tion. The reinstatement ways. Specifically, entitlement to from with- 8. We note also that differs proof, discretionary, grants quires holding protection under- the less of removal and Against important benefits to an alien. broader Convention Torture illegally See, aliens' who following re-enter United e.g., removal. id. at 155 (“[T]he after removal. ability to cross into the United States over consequences and over with no 1231(a)(5), By enacting Congress credibility undermines the of our efforts to sought illegal to crack down aliens who border.”). secure light In of this statu- ly re-enter the United States after removal tory purpose, reject we view “enlarg[ing] illegal class reen- that Congress’s desire to make trants orders whose reinstated and available to aliens a general matter possible limit[ing] the relief from a remov Congress’s overrides single intention to al order available them.” Fernandez- illegal out re-entrants and bar them from Vargas, U.S. at seeking certain forms of relief. That of removal protec Against tion the Convention Torture sum, In we in conclude not, remain to Calla available does 1231(a)(5) terplay between 1158 is suggests, require ignore as she us to Con unambiguous: Congress intended that gress’s applying intent to bar her from aliens to reinstated orders re relief, Instead, including asylum. precluded moval be applying asy 9 statutes, give must to both effect and con lum. 1231(a)(5) struing specific create a 1158(a)(l)’s exception general to grant b. eligibility to asylum’accomplishes seek this Mejia’s remaining argument,

goal. premised law, on international is also un sure, notes, persuasive.

To says as Calla She that barring illegal Con- gress sought to availability ensure the re-entrants from applying asylum for vio to asylum fleeing persecution. Betsy those aliens lates the Charming canon of inter See, 104-469, e.g., Rep. 1, pt. pretation—which requires H.R. No. at courts to “con (1996) strue ... (discussing 13 ÍIRIRA’s statute[s]' to consistent with our revisions procedures obligations law,” for removal international noting under Kofa INS, 1084, (4th 1995) “[tjhroughout process, v. 60 procedures F.3d 1090 Cir. (en banc) protect aliens presént (citing Murray those who credible v. Schooner (2 Cranch) 64, asylum by Charming claims for 6 giving op- Betsy, them an U.S. 118, (1804))—because portunity hearing for a full on 2 their L.Ed. it 208 - claims”). Congress But sought obligations also to breaches our under the 1967 streamline the process illegal for Relating United Nations Protocol re-entrants and to attach consequences to Refugees.10 Specifically, Status of re-entry, 31(1) including by restricting the forms to points Article of the Proto col, to relief available those who provides signatories re-enter which that “shall result, citations, marks, contrary quotation 9. As a to Calla asser and alterations (cid:127) tion, lenity—which immigra the rule of omitted). in the proposition tion context "stands for the that ambiguities deportation státutes should be Protocol, 10. The United States acceded to the noncitizen,” Espi in favor of construed incorporated the United Nations Con Holder, nal-Andrades v. 777 F.3d Relating Refugees, vention the Status of (4th 2015)—has play. no role to See Her Stevic, 1968. INS v. 467 U.S. Holder, 783 F.3d nandez (1984). "The Pro 81 L.Ed.2d 2015) ("[Bjecause lenity the rule of is a last comply parties tocol sub with the bound resort, primary not a tool of ... construction provisions through stantive 34” Articles applies only grievous it where there is a ambi of the Id. Convention. (internal statute.”) guity uncertainty in far,” But, “Congress go so on account did penalties, [an impose agree sister circuits entry or therefore with our applicant’s] illegal presence.” apply barring illegal that Relating the Status Refu- re-entrants Protocol 31(1), 31, 1967, 19 ing asylum U.S.T. conflict with our gees, art. for doesn’t Jan. Id.) treaty obligations. claims international see 6223. Calla 1231(a)(5)’s (no asylum Garcia, consti- at 41-42 limitation also Garcia impermissible “penalty” for tutes such an 28 or 34 of the U.N. Articles with conflict (no Protocol); the United illegally Cazun, at those who n.16 re-enter government 28, 31(1), removal. The States after conflict Articles or 34 obli- Protocol). the United counters that States’ U.N. Protocol do not

gations extend B. repeated far all aliens “afford

so. each opportunities apply asylum, alternatively seeks to apply every they the United time enter ground on the that her rein- illegally.” Gov’t’s 37-38. Br. stated of removal because is.invalid it en- relies on a removal order that was government think has the the- We of her and due violation tered argument. better this offers end, process rights. To support denying no for her contention hearing, alleges that at the June illegal ability apply re-entrants the (1) inform sufficiently IJ: her that failed “penalty,” key term constitutes a eligible asylum or that she she was Protocol. And the Su undefined discouraged asylum, preme emphasized Court has so; (2) sufficiently doing her from failed “discretionary that corre mechanism” is. (3) right appeal; her of the advise sponds “precatory” provision eligible to inform that she failed was Cardoza-Fonseca, Protocol. 480 U.S. voluntary pre-conclusion departure for un- 441, perceive 107 We therefore 1229c(a)(l). we der U.S.C. Because for concluding depriving no that basis petition not Mejia’s that Calla find- aliens, op upon illegal re-entry, additional of timely underlying as to the filed order discretionary portunities relief apply for 10, final on June removal—which became “penalty.” a constitutes jurisdiction 2015—we lack address opportunity to for Crucially, n Mejia’s objections to 2015 hear- June withholding of removal Convention ing.11 Against protection Torture remains avail- 1231(a)(5), Ordinarily, under 8 U.S.C. notwithstanding able to aliens reinstated findings necessary DHS makes removal order. It be that with- after “[i]f reinstatement, prior of re- “the order of holding [Convention removal original from its date also moval reinstated Against protection were Torture] or being reopened and is illegally reen- who eliminated aliens this tered,” argument win seeks to Mejia’s reviewed.” avoid would jurisdic- by relying limitation on the Ramirez-Mejia, 813 at 241. broad day. ours, initial holding, the man- that "border” interviews "should 11. In so we do evaluate carefully reliability ner in which the IJ June conducted scrutinized asylum appli- “rights presentation” to the being by the fact-finder to evaluate an utilized cants, note, however, of We that a discussion credibility.” Qing applicant’s Hua v. Hold- Lin credibility is incom- applicant’s an 343, 2013) er, (4th (Thack- Cir. 736 F.3d ' view píete to the uniform without reference cases). er, J., concurring) (collecting including appeals, among the courts of circuit effect,” of provision tional REAL ID 1252(b)(l)’s Act of we must construe 2005, 109-13, L. Pub. No. Stat. 231. deadline refer to the date which the 1252(a)(2)(D), Codified at 8 U.S.C. this reinstated order of origi- removal—not the provision notwithstanding states that “any nal order—becomes final. Opp’n Pet’r’s -to (other provision chapter other of this than Dismiss, Resp’t’s Mot. to at 16. Under section) ju- this which limits eliminates Mejia’s construction, favored because review,” appeals ju- dicial courts of retain her reinstated order of removal became risdiction to resolve “constitutional claims days final 30 before she filed instant questions of upon petition law raised petition, jurisdiction. we have filed ... review accordance light In plain pur text and section.” pose 1251(b)(1), §of reject we Calla Me jurisdictional limitation jia’s reading 30-day hold 1231(a)(5) clearly scope falls outside the runs from original deadline date §of It appears 1252: in a different section of removal becomes final. And, order as Chapter Title and is therefore recognized, we’ve 30-day time limit of 1252(a)(2)(D). §by overridden According- § 1252(b)(1) our constrains review ly, agree we with Calla removal, underlying order of even where 1231(a)(5) deprive jurisdic- doesn’t us an alien raises legal constitutional or chal tion to review constitutional claims and lenges. Holder, Galicia-Vargas v. questions of law arise from ah under- (4th 2014) Fed.Appx. (citing Cir. lying removal order the reinstatement § 1252(b)(1) and no finding jurisdiction to See, e.g., Villegas context. de la Paz v. review alien’s challenges underlying Holder, (6th 2010) 640 F.3d “petition 1998 removal order because his (“[Section] 1252(a)(2)(D) re-vests the cir- is not timely underly review jurisdiction cuit courts with over constitu- ing added)). order (emphasis removal” questions tional claims or law raised reaffirm today. that holding We. proceed- the context reinstatement To accept ings.”); Mukasey, argument Lorenzo 2007) (“[W]e purpose “would may no defeat the statute’s longer categorically time ju- allowing challenge hold that lack bar to an risdiction to underlying constitutional and stat- review time a rein utory underlying claims related to all re- de-Rodriguez stated issued.” v. Ver orders.”). U.S., (3d moval Att’y 198, Gen. 734 203 Cir. F.3d 2013). Congress was clear when it enacted However, jurisdictional our inquiry the REAL ID Act that the intended “over doesn’t end the REAL ID Act here. While all proposed effect reforms” in the gives jurisdiction to us review Calla Me- Act—including jurisdictional provision jia’s legal constitutional challenges and to 1251(a)(2)(D)—was §of every “to give order, the underlying June 2015 removal judicial opportunity alien a fair to obtain petition her must still be “filed ... in restoring review while order and common accordance 8 [§ 1252].” U.S.C. judicial process.” sense to the review H.R. 1252(a)(2)(D). notes, § government As the (Conf. 109-72, (2005) Rep. Rep.), at 174 1252(b)(1) § requires petition that the “be 240, reprinted in 2005 U.S.C.C.A.N. days filed not later than 30 after the date to goal Central of “order common Mejia the final order of and removal.” Calla otherwise, Congress’s sense” was desire that argue doesn’t aliens but instead as- give ignore thirty-day serts that to to “jurisdiction-restor- “not able time “real n limit 1252(a)(2)(D) ing provision” § seeking Id. review.” Mejia that the agree cannot with Calla interpreta- that our we- Mejia warns Calla (cid:127) 1252(b)(1) § contravenes the REAL government’s proposed construction tion effectively Act review 1252(b)(1)—which adopt—ren- “abolish[es] ID we now reinstatement,” in underlying orders of all REAL ID Act “toothless:” ders .the raising “‘serious constitutional thereby Thus, timely did because Calla Suspension Clause problems’ ”—namely, 2015 order of challenge to the June file her Opp’n Resp’t’s Mot. Pet’r’s concerns.12 removal, jurisdiction lack review we Dismiss, 12, INS (quoting v. St. claims. Cyr, 533 U.S. DIS- PETITION FOR REVIEW (2001)). Rather, so. Not L.Ed.2d DENIED PART' AND IN MISSED IN that an think it more than feasible individ- PART, country home to her ual removed States, the United illegally re-enter TRAXLER, Judge, concurring Circuit by removal order reinstated original part dissenting part: DHS, for review—all within a petition . immigra- in front of the Calla was time. month’s judge lawyer. She made a tion with her Moreover, given that alien move asylum.-The judge ready was motion proceedings pursu- her removal reopen However, Mejia opted rule. Calla instead 1229a(c)(7), ant to we find Calla 8 U.S.C. motion for withdraw her unavailing. Mejia’s concerns See Luna v. ,her asylum issue. right appeal waive (2d 2011) Holder, F.3d immigration judge therefore did 1229a(c)(7)’s (describing motion to re- appeal on the No was rule issue. adequate “an open process as and effective BIA. Yet somehow we are taken review” that substitute habeas resolves ruling asylum issue now on the that Calla concerns Suspension Clause raised deadline). 1252(b)(l)’s In this We have no raised and abandoned. 30-day case, Mejia could have moved to I jurisdiction to do so and dissent. providing

reopen proceedings, I. other material via affidavit or evidence n n 8 C.F.R. to be considered. See facts Illegal Entry Mejia’s First 1003.2(c). could have And Calla Into United relief even after she sought such illegally first entered Gonzales, Peru, moved to William 2015, crossing April United States 2007), and had Laredo, , Texas. She was Rio Grande near ninety the removal order be- days after apprehended questioned immediately so, final 8 U.S.C. do came why patrol agent. asked by a border When 1229a(c)(7)(C)(i).Moreover, if even States, the United she entered the motion Mejia failed to file within “to agent told the she wished reside and limit, -to she could seek time still York, York,” in J.A. work New New Kuusk v. Hold- equitably toll deadline. “be harmed or and denied that she would 2013). er, Given Peru, persecution” if returned to face she subject to to an alien the avenues available agent 218. determined that Calla J.A. judicial removal order seek a reinstated her, order, Mejia placed underlying was inadmissible of the removal review Const, I, ("The public Safety may Rebellion or art. cl. Invasion 12. See U.S. 2. it.’’). Corpus Privilege require of the Writ of Habeas 'shall suspended, not be unless when-in Cases initially, expedited ney proceedings. removal continuing with the removal 1225(b)(1). 8 U.S.C. After she had proceedings, Calla Mejia but declined and time, been period detained some she proceed indicated wanted to on her however, Mejia Calla expressed a fear that Mejia own. Calla allegations admitted the she if would be harmed she were returned forth set in the Notice to Appear and Therefore, Asylum to Peru. Officer that conceded she had entered the United (“AO”)conducted a credible-fear interview. “illegally.” J.A. 561. After the immi- n 1225(b)(1)(A); See 8 U.S.C. During the gration judge Mejia determined that Calla interview, Mejia Calla that indicated she removable, was Mejia Calla identified Peru was afraid to Peru return because her preferred as her country of removal. routinely husband abused her physically Mejia did not from relief and even threatened with death. Calla removal appeal waived from the Mejia reported claimed that she this abuse proceedings. immigration judge asked police, they but that took no action if there “any was reason [she not could] because her police husband awas officer. Peru,” return to Mejia and Calla stated She also that not claimed she could avoid that she “told the officer [she] was fearful by relocating her husband’s abuse a returning country.” [of] to [her] Id. The part different of Peru—she believed that immigration judge Mejia noted that Calla position police his as a officer would enable would a “credibility serious problem” him to why find her. When asked because she had “told the first officer [she initially agents told the Border Patrol that going to was] live York New for five Peru,” not returning she “did fear years and [she was] afraid to return.” Mejia responded did, fact, that she tell Nonetheless, 562. judge J.A. indicated agents Patrol Border that she feared if to apply wanted Peru, returning agents but asylum, withholding of protec- removal and they stated 214. Fol- “[did not] care.” J.A. tion Against under the Convention Tor- lowing interview, the AO concluded ture, court would it.” “allow Id. Calla that Calla had a fear credible stated she did not to apply wish persecution in Peru on account of her removal, for relief from that she under- membership particular in a social group, final, stood the order of removal 1225(b)(l)(B)(ii), was see 8 U.S.C. and re- that she to appeal. did wish ferred her for a proceeding full removal during which she could seek relief from The immigration judge entered a final removal, see 8 U.S.C. 1229a. order of June 2015. Before removal,

DHS executing issued Calla a Notice to the order is- DHS Appear, charging that she was removable sued to Form 1-294 standard immigrant as an possess who did not Warning to Alien Ordered Removed or entry valid document appli- “at the time of Deported, which admonished her that-she cation admission.” “prohibited U.S.C. entering, from attempting 1182(a)(7)(A)(i)(I). 10, 2015, On enter, June being in the United States” appeared pro se at Master period years “[f]or a of 10 from the date hearing Calendar immigration before an departure [her] the United Statés.” judge “to determine whether or not those Additionally, J.A. 13. Form 1-294 is- allegations Ap- facts and [in Notice to font, Mejia provided, sued to. Calla in bold pear] are true correct." J.A. following:. Immigration Judge

The offered Calla Title 8 United WARNING: States Mejia an opportunity to consult an attor- Code, provides Section'1326 that it is a interview AO for a reasonable-fear for USCIS

crime an alien who been has to en- be re- [she] the United “to whether should States moved determine enter, ter, attempt immigration judge apply or be found in to to an ferred during period in the United States the removal.” for or deferral of or Mejia he she is barred from so Calla J.A. AO informed 178. Attorney doing the General’s without attorney an right “the she that had Any alien who violates consent. Mejia Calla present,” but representative prosecu- of section law legal, and asked representation declined felony. Depending on for tion a J.A. the interview. 177. with “[pjroceed” removal, of convic- circumstances physi- Mejia the AO about then told Calla of im- in a sentence tion result she mental abuse suffered cal and period 2 to of from prisonment for a husband, ina- and about her of hands her $250,- up years fine a of and/or from the authori- bility protection to seek 000. employment ties her husband’s because Mejia to Péru was removed J.A. 13. Calla if police officer. that she as a believed She on 2015. June Peru, her husband would ever returned [her], her, [her], hit even “[m]istreat find Illegal Entry Mejia’s Second Calla 193. AO kill J.A. determined [her].” Prior DHS’s Reinstatement testimony by Calla Me- interview Removal Order of is a that there “established reasonable jia Mejia for two Calla waited about months suffering constituting possibility harm crossing illegally the .Mexican bor- country [she] in to which persecution for a into United States second der ... on been removed account ordered 19, 2015, appre- August she time. On was .., particular in a social membership patrol agents near Lare- by hended border Accordingly, proceed- group.” J.A. 176. Texas, do, again. August On once Mejia referred to ings against Calla were Form I- DHS served Calla with immigration judge “for a determination an indicating that because she had unlaw- 208.31(e).” in accordance with CFR after fully reentered United J.A. 595. removed, she was having previously been of her subject to reinstatement removal Application Asylum Calla for to section prior pursuant of removal order filed a Mejia obtained counsel and Calla 241(a)(5) Immigration Nationali- Asylum Application Form 1-589 1231(a)(5). (“INA’). ty See 8 Act U.S.C. Withholding of Removal. Because she had signed acknowledgement withholding-only proceed- placed been “not indicating that she did wish make Mejia also a formal submitted contesting ings, statement determination” [the] setting forth her reasons motion that she 201. DHS written was removable. J.A. eligible asy- August believing order thus issued an she was concluding “subject that Calla Specifically, lum. asserted that through reinstatement original removal was invalid order removal], 10, 2015, accor- [June genuine given not been she because had 1231(a)(5) J.A. ].” dance U.S.C. [8 she for relief. And because chance meaningfully rights waive “did appeal during pursue seek could execute the reinstat- Before DHS argued however, she removal, her first removal proceedings,”- ed order eligible again returning to expressed a fear of remained also present her to a proceedings. Peru. DHS therefore referred provisions contended that “the relevant would not issue a.decision until later preclude not [INA] the do individual Beyond written order. doubt the immi- subject to or- a reinstatement gration judge willing was and able to issue from for applying asylum.” 134. der J.A. on ruling Mejia’s Calla claim for asylum. hearing, taking At the merits before tes- At point, this Calla Mejia indicated that timony Mejia’s as to Calla claim for with- she would “rather have the decision now” removal, holding of immigration judge the unequivocally that stated she was application for asylum, addressed her stat- “withdraw[ing] that [asylum for claim] the ing that she was “inclined that conclude oral today,” decision so as to obtain her Mejia eligible asylum.” for [Calla was] from release detention. J.A. 45. The immi- immigration 13. judge J.A. The offered to ruled, gration judge then granting Calla reasoning asylum “flesh” out on the her Mejia’s “application for withholding of re- decision,” “in issue a written but noted moval under the INA.” J.A. 46. Counsel more “take time.” J.A. 13. would some Mejia confirmed that waiving Calla was, Mejia responded through Calla counsel appeal immigration of the judge’s order, for that she had been detention “almost appeal. DHS likewise waived On Feb- get- months” “adamant” six and was about 17, 2016, ruary the immigration judge en- ting custody pos- from as soon released granting tered an order Calla Mejia’s Mejia J.A. 15. sible. Calla therefore withholding claim for of removal under the just “opt[ed] withholding pro- for the only INA. There this case should 14-15, ceeding,” if J.A. and indicated that ended. immigration judge granted the with- claim,

holding she would the “withdraw” Calla Petition Review for asylum application any appeal and “waive later, however, A on month March issue,” asylum of the J.A. 16. Mejia petition Calla filed this Following Mejia’s testimony, the court, asserting very our the review immigration judge [met] found “she claim during she raised then withdrew requirements, of the all proceedings immigration 40. in- judge INA.” J.A. right judge—that she had to raise an Mejia that if formed Calla she wanted to asylum immigration judge claim before claim, asylum “for pursue her the record even she to a though reinstat- certainly I ... ... would want 'do a ed order removal.1 based thorough decision that and issue a writ- plain language this on the contention decision,” ap- ten which INA, provides “[a]ny alien” peal. immigration judge J.A. 41. The then “irrespective such apply, explained very short that she would “do status,” 1158(a)(1). 8 U.S.C. Ac- alien’s orally withholding of granting ... decision Mejia, “DHS cording wrongfully to Calla removal,”' if and that Calla “waive[d] asy- chance denied [her] oral final appeal, [the decision] would be a at (emphasis However, Appellant lum.” Brief immigration J.A. 44. order.” added). judge if And now seeks order indicated that Calla wished claim, pursue sending court issue back court , Technically, petition became final at the did not of removal instated 17, 2016, February withholding-only of the In- proceed- review order. conclusion stead, petition for filed a review argue ings. government does 21, 2015, August decision reinstate contrary. removal, asserting prior order that the re- 2; to the Id. at appeal an Board.” immigration judge to where she was thorized an 1208.31(e) the (“Appeal-of see.8- before. C.F.R. to immigration judge’s' decision shall lie responded by fil- Attorney The General Immigration Appeals.”). the Board petition the ing a motion to dismiss argued Me Attorney that Calla General Attor- jurisdiction. for lack of review BIA to jia’s going the rule belief that “was Mejia that Calla failed ney. argued General not of the against relieve her [did] her claim the asylum before to exhaust her obligation her BIA, to exhaust administrative having or the immigration judge n asylum,” filing an the requesting appeal but with a motion remedies “filed n con- that motion “at the having withdrawn at 6. [BIA].” Id. in Immigration of her proceedings clusion II. Respondent’s Motion To Dismiss

Court.” Mejia Noting “also ex- at 8. that Calla majority, Mejia to the According 'appeal [BIA] pressly waived escape the of her consequences now Attorney appeal,” filed no such Gener- strategic considered decision with- is no from al asserted “there decision asylum draw claim waive her Judge re- Immigration [BIA] view, because, in appeal of that issue its asylum garding arguments” Petitioner’s no her litigate had forum to court Id. for this to review. asylum immigration because the claim.and op- filed memorandum judge likely BIA would ruled and the Relying motion tó position dismiss. For the against her. reasons discussed be- (4th Lynch, 813 F.3d 135 on Etienne v. low, agree I majority’s cannot with the 2015), argued that cur- “[u]nder she an decision to allow to make ... agency regulations, rent end run around tribu- administrative right no from an had to seek either nal, willingness to its to excuse Calla BIA,” immigration or the and that judge counseled from her choices and pre- the exhaustion therefore not rule did representations immigrar made to the raising her an claim in clude tion I judge. would dismiss Calla petition for review to Peti- court. in its petition entirety for lack review Opposition to Dismiss at tioner’s Motion I jurisdiction, would reach ' asylum claim. merits of the Finally, in reply, Attorney General emphasized op that Calla “had A. Exhaustion to the portunity appeal file Board An alien must exhaust “all administra- raising her current Appeals Immigration available to as of tive remedies the alien claims, legal to avail failed herself but review, of right” filing petition before opportunity.” Respondent’s Reply a final order removal. 8 U.S.C. (cit Opposition Motion Dismiss at 1252(d)(1). alien who.fails to raise An 1208.31(e)). ing In responding 8 C.F.R. particular BIA claim before the fails Mejia’s argument “agency to Calla that the claim. exhaust See Tiscareno-Garcia appeal” afforded her no avenue for Holder, v. 780 F.3d claim,- Attorney regard to her 2015). jurisdiction This court lacks ignored that this both General contended administratively that is not any claim view colloquy “the Immi extensive id.; 1252(d)(1). exhausted. See U.S.C. gration Judge prior to her waiver n regulation This has excused the rights,” at 8 court exhaustion appeal and “the which, 1208.31(e), process specifically requirement au for due claims be- C.F.R. generally authority BIA with a claim that the hearing cause no officer could remedy to address such constitutional not address and that appealed INS, claims. Farrokhi BIA, Etienne had no “avenue to 1990). (4th Cir. the constitu When 700-01 legal challenge the conclusion” that he was concern procedural tional claims errors subject expedited to proceedings. removal by be and remedied addressed Etienne, (internal 813 at 140 quota- F.3d BIA, however, still the exhaustion is re omitted). tion marks 332, INS, v. quired., F.3d 275 Kurfees contrast, In Calla not had an only (4th 2001). colleagues Cir. my As 337 opportunity claim, to asylum raise her but observe, rightly excused we the exhaustion she filed fact a Form Application 1-589 requirement Lynch, Etienne v. 813 F.3d Asylum. immigration judge had 135, (4th 2015). There, Cir. ex 138 the authority claim before her and the to expedited pro that “in plained removal Calla Mejia decide whether an alien to ceedings, has no opportunity asylum in light the relevant statutes removal,” legal the challenge basis of his regulations. immigration judge And the not satisfy and thus need the exhaustion' that, peatedly added). assured Calla Id. at requirement. (emphasis 138 would consider the differently, carefully the issue a Stated alien there was provided challenge “with an avenue to the opinion written appeal which an to legal subject conclusion” that he However, the BIA could be taken. the (internal removal. expedited Id. at 140 immigration judge gave also a omitted). marks quotation choice: an granting either decision oral. im- removal be entered First, This is not like Etienne. the withholding case a mediately, addressing or written legal the decision authority BIA the decide argument by Mejia—that asylum raised “the the claim to be entered later. provisions of do not Mejia relevant the affirmatively [INA] withdrew her an preclude subject to a rein individual delay entry claim not to so as applying removal statement order from granting withholding and her release 134, J.A. asylum,” and that “[t]o from detention. 208.31(e) that 8 C.F.R. extent allows now asks us to an consider regula only, removal this upon claim that has not been ruled controlling statutory tion conflicts with au immigration judge presented | (internal J.A. thority,” quotation 135 To the extent BIA. she contends omitted). contrast, By in marks Etienne requirement ex exhaustion should be expedited proceedings, volved removal it cused because would have been futile over which DHS officer—who need not present claim to BIA in view attorney specialized affording agency’s practice of longstanding Etienne, legal training—presides. See 813 withholding-only proceedings in. accor judge, 139. Unlike an immigration F.3d at regulation, its cannot dance with own I typically qualified officer DHS agree. “expressly ex Congress requires questions of address law such as whether of. haustion remedies.” administrative to, “aggravated subject an alien is felon” (4th Holder, 887, Temu v. n.4 expedited removal Further proceedings. 2014) J., (Agee, dissenting); see 8 more, expedited “aliens 1252(d)(1) (requiring U.S.C. exhaustion only] appear do not an IJ” but [not remedies). Accordingly, must courts appeal an “they cannot adverse decision Holder, “strictly requirement. ]” the BIA.” Valdiviez-Hernandez v. enforce! 2013). J., Thus, Temu, n.4 (Agee, F.3d at 899 dis- argument “Congress properly still not before us. has mandated are ng). sentí Where contends, government exhaustion,” re As the exhaustion merely did not to raise the quirement “is odds-with traditional doc fail exhaustion, question, issue then trines of she raised the administrative ,.. need not exhaust litigant affirmatively withdrew it intentionally which right otherwise be doing explicitly gave up appeal futile.” where so would n.6, Churner, 532 U.S. Booth v. did not sim BIA. Calla thus (2001). issue, issue, 149 L.Ed.2d 958 ply she waived the forfeit “irrespective requires exhaustion The INA extinguishes any claim error and sought relief offered forms of nothing us See Unit review. leaves avenues,” and it is through Olano, administrative ed U.S. futility excep (1993) other

improper to “read 1770, (noting S.Ct. 123 508 L.Ed.2d , require statutory exhaustion tions into that is the failure to make the “forfeiture provided Congress has other ments where timely right,” assertion of a while “waiver Id, wise.” is the relinquishment or intentional aban right,” explaining donment of a known may that exhaustion Booth does state that that are waived are not review issues required “where relevant ad- be all, “extinguishes]” at waiver able because authority lacks procedure ministrative (internal any error quotation marks omit or to provide any relief take action ted)); Robinson, v. United States 744 F.3d response complaint.” to a Id. in whatsoever 293, (4th 2014) (“[W]hen 298 a Cir. claim is 736, at 121 1819. But the extent S.Ct. waived, on appeal, it is not even reviewable futility-like exception the exhaustion Rather, plain a valid error. waiver Booth, it is extremely nar- rule survived no A means there was error at ... that all. see, row, e.g., Copeland, United States v. issue, party who identifies and then (2d 61, 2004), Cir. and does 376 F.3d 66-67 it, explicitly has is waived the withdraws Booth that an apply here. concluded (internal quotation sue.” citation 'and monetary' claim for relief had to inmate’s omitted)).' marks though in- prison’s be exhausted even provi- no grievance procedure ternal had Carroll, Relying Selgeka v. 184 F.3d recovery damages. money sion for the (4th 1999), majority 337 contends Booth, remedy Under available here, it that is no there waiver because right process “the where administrative futile for Calla toMejia would have been authority has action in take some Majority at Op. raise the See issue. sponse complaint, to a but not the remedial misreadsSelge- majority 582.1 believe Booth, complainant] action demands.” [the Selgeka ka. Although the court stated 532 at 121 U.S. S.Ct. Such was that “a when claim is not it waived would the case here. it,” be futile to raise F.3d at frequently been have courts inexact bringing eligibility

Before “for usage their terms “waiver” court, claim to should Com’r, Freytag feiture.” v. U.S. presented BIA, it despite n.2, long success, L.Ed.2d odds it to consider (cid:127) (1991) . Supreme that Court (noting anew. forfeiture] “so [waiver often used B, Waiver too it interchangeably late that concurring); J., (Scalia, Finally, introduce futility precision”) even assuming that Contractors, could, instances, Inc. v. Da a failure ckwood some excuse Bri Inc., exhaust, n.7 merits of Mejia’s Eng’g, tanet banc) 2004) (en (noting jurisdiction that we lack that to decide the bal- “[wjhile petition ance of cases often terms ‘forfeit’ use for review. nn interchangeably, there is an ‘waive’ distinction”). important Given that of Selgeka simple

facts involved a failure to court’s

raise issue and the statement “[njothing suggests in the record knowing

Selgeka intelligent made claim,” his process

decision waive due 345, I Selgeka, Selgeka’s think CARR; Kathan; A. Gregory Michael Per is not statement “a claim waived when ry Meier; Kelly L’Roy; Charles Mul it,” id., it would be futile to raise simply hall; Mund, Plaintiffs-Appel Scott that a claim is not means futile forfeited lants raise failure it. case, In this know because ASSOCIATION, AIR LINE PILOTS issue, ingly waived the there sim INTERNATIONAL, Defendant- nothing no ply is error court this Appellee majority by to review. therefore errs 16-20578 No. rejecting government’s argument any right to seek waived re Appeals, United States Court Nothing Selge view of the issue. Circuit. Fifth requires contrary ka conclusion. July

FILED July 14, REVISED III. system,

In judicial proceed- the federal

ings of Appeals before the Courts are appellate judges novo

de affairs where

decide facts themselves and resolve legal any regard

all issues without Instead, happened job

what below. appellate review court is to and correct legal by

prejudicial errors made district In

courts tribunals. administrative this

case, however, nothing there is for us to

review, because no tribunal administra- agency asy-

tive considered the even issue, much in resolving

lum less erred it. respect opinion my col-

With

leagues in I majority, must dissent majority’s decision that we have

jurisdiction Mejia’s asylum decide Calla I majority’s

claim.2 in the concur decision jurisdic- I proper Because believe court lacks resolution of issue raised it, express opinion Mejia. over no tion I on

Case Details

Case Name: Sonia Calla Mejia v. Jefferson Sessions III

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 9, 2017

Citation: 866 F.3d 573

Docket Number: 16-1280

Court Abbreviation: 4th Cir.