Garcia v. Sessions, No. 16-3234 (7th Cir. 2017)Annotate this Case
Garcia, a Honduran national, came to the U.S. in 2003. He was ordered removed and departed in 2005. Garcia claims that he was kidnapped and beaten upon his return to Honduras because of his opposition to deforestation. He returned to the U.S. in 2014 and, after being apprehended, sought asylum. The Chicago Asylum Office issued a positive reasonable fear determination. The IJ granted Garcia statutory withholding of removal, stating that she lacked the authority to reconsider the reinstatement of Garcia’s removal order. The BIA rejected Garcia’s argument that he had a statutory right to seek asylum under 8 U.S.C. 1158(a), reasoning that it lacked authority to declare the controlling regulations in violation of the statute. The BIA noted that “several federal courts have held a person in reinstatement proceedings is not eligible for and cannot seek asylum.” The Seventh Circuit initially dismissed an appeal because asylum is a form of discretionary relief, so Garcia lacks standing to challenge the regulations prohibiting him from applying for it. On rehearing, the government and court agreed that Garcia has standing. On the merits, the Seventh Circuit held that 8 U.S.C. 1231(a)(5) plainly prohibits aliens subject to reinstatement of a removal order from applying for asylum.
This opinion or order relates to an opinion or order originally issued on June 8, 2017.