Oct. 16, 2017 – The U.S. Court of Appeals for the Seventh Circuit recently overruled a prior decision that said a petitioner lacked standing because the petitioner did not suffer an injury-in-fact when denied the opportunity to apply for asylum.

But that didn’t help Cirilo Garcia, who convinced an immigration judge that he would likely be persecuted if removed from the U.S. and sent back to his native Honduras.

That’s because the U.S. previously ordered Garcia’s deportation. Garcia was ordered removed in 2003 and returned to Honduras in 2005. He reentered the U.S. in 2014.

Federal immigration law on asylums, 8 U.S.C. section 1158(a), says “[a]ny alien who is physically present in the United States or who arrives in the United States … irrespective of such alien’s status, may apply for asylum.”

However, a different provision on detentions and removals of those ordered removed, 8 U.S.C. section 1231(a)(5), says a removal order is reinstated if the Attorney General finds that a person has reentered the U.S. after ordered removed and the person “is not eligible and may not apply for any relief under this chapter.”

Ultimately, a federal immigration judge found that Garcia met the criteria for asylum based on prior and likely future persecution ­– that was good enough for withholding of removal. But the immigration judge said her hands were tied on asylum: the court lacked authority to reconsider the reinstatement of Garcia’s removal order from 2003.

The Board of Immigration Appeals dismissed Garcia’s appeal, noting several federal circuits have ruled that asylum is not available if a removal order is reinstated. The dismissal quashed Garcia’s asylum application – it would not be considered.

Initially, Attorney General Jefferson Sessions III, the named respondent, argued that Garcia lacked standing to apply for asylum in the first place. This argument was premised on a prior decision by the Seventh Circuit Court of Appeals.

In Delgado-Arteaga v. Sessions, 856 F.3d 1109 (7th Cir. 2017), a petitioner argued that regulations impermissibly precluded his asylum application in violation of 8 U.S.C. section 1158(a), which says asylum applications are permitted regardless of status.

But the three-judge panel ruled that the petitioner, Delgado-Arteaga, lacked standing because he could not show an injury-in-fact.

“Delgado cannot claim he suffered an ‘invasion of a legally protected interest’ when 8 C.F.R. § 1208.31(g)(2)(i) precluded him from applying for asylum,” the panel noted. “Asylum is a form of discretionary relief in which ‘there is no liberty interest at stake.’”

But in Garcia v. Sessions, No. 16-3234 (Oc. 11, 2017), the Seventh Circuit changed its mind on this issue, overruling Delgado-Arteaga’s holding on standing. “We now conclude that Delgado-Arteaga’s holding was inconsistent with Article III standing doctrine,” wrote Judge Daniel Manion.

“Garcia has been denied the right to apply for asylum. [T]he denial of a statutory right to apply for asylum extinguishes any chance an alien might have had to receive asylum. Therefore, it is a sufficient injury-in-fact under Article III even if there is no due process right to asylum,” Judge Manion continued.

The court noted that the applicable statute, 8 U.S.C. section 1158(a), is subject to the Attorney General’s interpretation and a petitioner has a right to challenge it.

“That is, even though this court could never guarantee that Garcia receives asylum, it could order the Attorney General to allow him to apply,” Judge Manion wrote.

However, this decision did not help Garcia because, on the merits, the panel ruled that persons subject to reinstatement of withdrawal orders cannot apply for asylum.

“[T]he plain text of 8 U.S.C. §1231(a)(5) prohibits Garcia from applying for asylum,” Manion wrote. The provision bars “any relief” to those who reenter after a withdrawal order against them, the panel noted, and asylum is a form of relief from removal.

The panel ruled that the more specific section 1231(a)(5) places limitations on the general asylum statute, which allows asylum applications regardless of status.

“Garcia’s proffered interpretation of Section 1158(a) attempts to use that subsection to trump the specific prohibition in Section 1231(a)(5), rendering that prohibition meaningless,” Judge Manion wrote. “Therefore, we join the Second, Fourth, Fifth, and Eleventh Circuits in rejecting it.” The panel denied Garcia’s petition for review.