Francisco Lara-Aguilar v. Jefferson B. Sessions III
Opinion
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
This court recently held that an alien subject to a reinstated order of removal may not apply for asylum.
See
Mejia v. Sessions
,
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
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
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
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,
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
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."
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 asylum, withholding of removal and Convention Against Torture relief, I will allow it, but I should tell you, you have a credibility problem. A serious one."
Approximately two months later, Calla Mejia was again apprehended by border patrol agents as she attempted to enter the United States unlawfully. DHS reinstated Calla Mejia's June 2015 order of removal pursuant to § 1231(a)(5). Calla Mejia again expressed a fear of returning to Peru and was referred for another reasonable fear interview. Once again, the asylum officer conducting the interview concluded that Calla Mejia "established that there is a reasonable possibility of suffering harm constituting persecution in the country to which [she] has been ordered removed ... on account of ... membership in a particular social group."
Id
. at 592 (internal quotation marks omitted; alteration and ellipses in original). However, "because Calla Mejia remained subject to a reinstated order of removal, DHS placed her in 'withholding-only' proceedings."
Calla Mejia petitioned this court for review, contending that the asylum provision gave her the right to apply for asylum because it provides that "
[a]ny alien
who is physically present in the United States ...,
irrespective of such alien's status
, may apply for asylum in accordance with this section."
This court "discern[ed] no ambiguity in the interplay between § 1231(a)(5) and § 1158(a)(1)" and determined that, "by enacting the reinstatement bar, Congress intended to preclude individuals subject to reinstated removal orders from applying for asylum."
First,
Mejia
noted that neither § 1158(a)(1) nor § 1231(a)(5) are absolute.
Mejia
explained that § 1158(a)(1) is restricted by its own terms-its broad provision that "[a]ny alien" may apply for asylum "irrespective of such alien's status" is limited by specific exceptions listed in § 1158(a)(2) -an alien who can be removed to a "[s]afe third country" may not apply for asylum,
see
Second,
Mejia
rejected the argument that the only exceptions to § 1158(a)(1) 's rule of asylum eligibility were spelled out by Congress in § 1158(a)(2),
see
Ultimately, in order "to square the reinstatement bar's prohibition on seeking 'any relief' with the broad grant of eligibility in the asylum provision," the court resorted to the canons of statutory construction and applied the rule that " 'the specific terms of a statutory scheme govern the general ones.' "
We apply the general-specific rule of construction to statutes in which a general permission is contradicted by a specific prohibition. These provisions readily fall within these categories: § 1158(a)(1) contains a general permission-allowing any alien to apply for asylum-that is contradicted by § 1231(a)(5) 's specific prohibition-forbidding individuals subject to reinstated orders of removal from seeking relief. Thus, in order to eliminate the contradiction, we construe § 1231(a)(5) to serve as a specific exception to § 1158(a)(1) 's general grant of eligibility to apply for asylum.
Id. at 586 (internal alterations, citations and quotation marks omitted).
In concluding its analysis,
Mejia
observed that "[c]lassifying the reinstatement bar as a specific exception to § 1158(a)(1) 's general grant of [asylum] eligibility" would give effect to both provisions without trenching on congressional purpose and intent.
Id.
The court explained that "[b]y enacting § 1231(a)(5), Congress sought to crack down on aliens who illegally re-enter the United States after removal by 'enlarg[ing] the class of illegal reentrants whose orders may be reinstated and limit[ing] the possible relief from a removal order available to them.' "
Id.
at 587 (quoting
Fernandez-Vargas v. Gonzales
,
III.
Although Lara-Aguilar concedes that "
Mejia
decides the issue the issue of whether reinstatement generally bars him from applying for asylum," Supp. Opening Brief of Petitioner at 1, he contends that
Mejia
does not foreclose his argument because it did not specifically address the interplay between § 1158(a)(2)(D) and § 1231(a)(5). Lara-Aguilar contends that Congress did not intend for the reinstatement bar to prohibit aliens who are subject to reinstated orders of removal from applying for asylum based on circumstances that arose
after
the alien's initial removal. Lara-Aguilar grounds his argument in § 1158(a)(2)(D), which he reads to permit aliens to apply for asylum, notwithstanding any other statutory provision, based on materially changed circumstances. To resolve what he believes is a direct conflict between § 1158(a)(2)(D) and § 1231(a)(5), Lara-Aguilar would apply the general-specific canon of statutory interpretation, as did the court in
Mejia
. Lara-Aguilar reaches the conclusion that § 1158(a)(2)(D) 's changed circumstances provision is more specific than § 1231(a)(5) 's reinstatement bar and therefore controls. He further argues that the Attorney General's contrary interpretation that § 1158(a)(2)(D) does not override § 1231(a)(5) 's reinstatement bar effectively reads the changed circumstances provision out of the statute and leads to absurd results. We disagree. As explained below, Lara-Aguilar's arguments are inconsistent with the plain terms of § 1158(a)(2)(D) and run contrary to
Mejia
's holding that § 1231(a)(5) attaches a categorical prohibition against applying for asylum to aliens subject to reinstated orders of removal.
See
A.
As we explained in
Mejia
, "the asylum provision lays out general (and qualified) terms of eligibility for asylum," while "[t]he reinstatement bar, on the other hand, deals with one specific subset of those recipients-aliens subject to reinstated removal orders-
and attaches to this subset a categorical exemption from all forms of relief found in Chapter 12 of Title 8 of the U.S. Code, including asylum.
"
Mejia
stressed that in passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,
Lara-Aguilar's argument, in effect, is that the prohibition imposed by § 1231(a)(5) is
not
categorical.
Mejia
forecloses this argument and we must reject it.
See
United States v. Bullard
,
B.
Even if
Mejia
did not foreclose Lara-Aguilar's claim as a general matter, his argument is ultimately defeated by the very terms of the statute. Lara-Aguilar suggests that to determine Congressional intent as to whether § 1158(a)(2)(D) or § 1231(a)(5) controls here, we should apply, as the court did in
Mejia
, the well-established rule of statutory interpretation that " 'the specific terms of a statutory scheme govern the general ones.' "
Mejia
,
But such is not the case. Conflict between the two statutory provisions is key-without it, there is no need for the interpreting court to resort to the general-specific canon to determine Congressional intent:
Where one section of an act deals with a subject in general terms and another deals with part of the same subject in a more detailed way, the two should be harmonized if possible. But if two statutes or provisions conflict , the general statute or provision must yield to the specific statute or provision involving the same subject.
2A N. Singer, Sutherland Statutes & Statutory Construction § 46:5 (7th ed. 2017) (emphasis added; footnote omitted). As this court has explained, "[i]t is a basic principle of statutory construction that
when two statutes are in conflict
, a specific statute closely applicable to the substance of the controversy at hand controls over a more generalized provision."
Sigmon Coal Co. v. Apfel
,
Mejia
turned to the general-specific rule of construction only because resorting to the statutory text "fail[ed] to square the reinstatement bar's prohibition on seeking 'any relief' with the broad grant of eligibility in the asylum provision."
The asylum provision states than "[a]ny alien ..., irrespective of such alien's status, may apply for asylum in accordance with this section."
• aliens who can be removed to a "[s]afe third country,"8 U.S.C. § 1158 (a)(2)(A) ;
• aliens who fail to apply for asylum "within 1 year after the date of the alien's arrival,"8 U.S.C. § 1158 (a)(2)(B) ; and
• aliens who have previously had an asylum application denied, see8 U.S.C. § 1158 (a)(2)(C).
As previously noted,
Mejia
rejected the idea that the only exceptions to the broad eligibility rule for asylum under § 1158(a)(1) are those three exceptions listed in § 1158(a)(2).
Mejia
construed the reinstatement bar "as a
specific exception
to § 1158(a)(1) 's general grant of eligibility to apply for asylum."
First, Lara-Aguilar ignores the language and structure of § 1158(a)(2). The changed circumstances provision does not apply to every statutory exception listed in § 1158(a)(2). Rather, by its express terms, § 1158(a)(2)(D) applies only to two of the three exceptions enumerated in § 1158(a)(2) :
An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C) , if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B) .
IV.
Lara-Aguilar next argues that the Attorney General's interpretation, as a practical matter, reads § 1158(a)(2)(D) out of the statute. Courts have an interpretive "duty to give effect," whenever possible, to a statute's "every clause and word."
Duncan v. Walker
,
For Lara-Aguilar's superfluity argument to hold water, every alien covered by § 1158(a)(2)(D) must necessarily be subject to a reinstated order of removal under § 1231(a)(5). But this is not the case.
See, e.g.,
Perez-Guzman v. Lynch
,
Lara-Aguilar's position also assumes that any alien in his position has no choice but to reenter the United States illegally after having been removed. Illegal reentry, however, is not the only option for an alien who wishes to avail himself of § 1158(a)(2)(D) 's changed circumstances provision. Rather, "aliens subject to removal orders may continue to apply for asylum by
lawfully
approaching a port of entry without illegally crossing the border."
Cazun v. Att'y Gen. United States
,
V.
Finally, Lara-Aguilar argues that the Attorney General's interpretation of the statute will produce an absurd result that Congress could not have intended. An alien who is successfully removed from the United States- i.e. , an alien who, in a sense, "cooperates" with a removal order-is barred by § 1231(a)(5) from applying for asylum upon illegal reentry. But, an alien who evades a removal order and remains in the United States unlawfully may be able to apply for asylum under our reading of § 1158(a)(2)(D) based on changed circumstances because he was never actually removed . In other words, an alien can avoid the reinstatement bar by remaining unlawfully rather than returning illegally. Lara-Aguilar urges us to adopt his preferred reading of the statute to eliminate this anomalous result and ensure that both groups of aliens-those that remain unlawfully and those that reenter illegally-may seek asylum based on changed circumstances.
We are to avoid "interpretations of a statute which would produce absurd results ... if alternative interpretations consistent with the legislative purpose are available."
Griffin v. Oceanic Contractors, Inc.
,
It is certainly plausible that Congress intended the differing treatment under § 1158(a)(2)(D) and § 1231(a)(5) of aliens who illegally reenter after having been removed previously and warned not to return, and aliens who remain in the United States unlawfully while subject to an (unexecuted) order of removal. Congress's interest in curtailing illegal reentry would "explain [this] disparate treatment."
Cazun
,
VI.
For the foregoing reasons, the petition for review is denied.
PETITION FOR REVIEW DENIED
Prior to the merits hearing on Lara-Aguilar's claim for withholding of removal, the IJ explained on the record that, although "[Lara-Aguilar] can certainly raise the [asylum] issue, ... I can't adjudicate it and I don't think the [BIA] will either. The regulations say that with a reinstated order he can only apply for withholding of removal." J.A. 145.
The court observed that such a reading of the statute "would directly contravene" the Supreme Court's conclusion in
Fernandez-Vargas v. Gonzales
,
Reference
- Full Case Name
- Francisco LARA-AGUILAR, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
- Cited By
- 11 cases
- Status
- Published