### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 3234

C IRILO G. G ARCIA

,

Petitioner

,

v.

J EFFERSON B. S ESSIONS III,

Attorney General of the United States,

Respondent

.

____________________

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A096

‐ 180

‐ 280

____________________

A RGUED A PRIL 20, 2017

— D ECIDED O CTOBER 11, 2017

____________________

Before M ANION and R OVNER

, Circuit Judges

, and C OLEMAN

,

District Judge

. *

M ANION

, Circuit Judge

. Petitioner Cirilo Garcia is a native

citizen of Honduras currently subject to a reinstated order of

removal. Federal regulations say that aliens in his position

* The Honorable Sharon Johnson Coleman, of the United States District

Court for the Northern District of Illinois, sitting by designation.2 No. 16

‐ 3234

have no right to apply for asylum. Garcia argues that these

regulations are inconsistent with the general asylum statute,

8 U.S.C. § 1158(a)(1). Following circuit precedent, we initially

held that Garcia lacked standing to challenge the regulations

because of the discretionary nature of asylum. However, we

granted Garcia’s petition for rehearing to address the standing

question. The government now agrees that Garcia has stand

‐ ing.

We agree with the parties that Garcia has standing to file

this petition, and as we discuss below, anything to the con

‐

trary in this court’s precedent will be overruled. However, on

the merits we conclude that 8 U.S.C. § 1231(a)(5) plainly pro

‐

hibits aliens in Garcia’s position from applying for asylum.

Therefore, we deny his petition for review.

I. Background

Garcia is a Honduran national who first came to the

United States in 2003. He was ordered removed in absentia on

October 24, 2003, and eventually departed in 2005. However,

Garcia claims that he encountered persecution upon his re

‐

turn to Honduras because of his unpopular political views—

specifically, his opposition to deforestation. Eventually, he

was kidnapped and beaten. He chose to return to the United

States in 2014 and, after being apprehended by Border Patrol,

sought asylum.

Garcia expressed a fear of persecution and torture because

of his activism if he returned to Honduras. On June 9, 2014,

the Chicago Asylum Office issued a positive reasonable fear

determination, finding that Garcia was generally credible and

had a reasonable fear of torture. The Office referred his case

to an Immigration Judge for withholding

‐ only proceedings.No. 16

‐ 3234 3

See 8 C.F.R. § 208.31(e) (“If an asylum officer determines that

an alien described in this section has a reasonable fear of per

‐

secution or torture, the officer shall so inform the alien and

issue a Form I–863, Notice of Referral to the Immigration

Judge, for full consideration of the request for withholding of re

‐

moval only .” (emphasis added)). Garcia then filed an asylum

application in Immigration Court on September 8, 2014.

On October 29, 2014, the Immigration Judge granted Gar

‐

cia statutory withholding of removal after finding that he had

been persecuted in the past and it was more likely than not

that he would be again if he returned to Honduras. The IJ ex

‐ plained that she lacked the authority to reconsider the rein

‐

statement of Garcia’s removal order. Garcia then appealed to

the Board of Immigration Appeals, arguing that he has a stat

‐

utory right to seek asylum under 8 U.S.C. § 1158(a). On July

25, 2016, the Board dismissed his appeal. It explained that it

lacked authority to declare the controlling regulations in vio

‐

lation of the statute, but also noted that “several federal courts

have held a person in reinstatement proceedings is not eligi

‐

ble for and cannot seek asylum.” This petition followed.

II. Discussion

The parties have presented a straightforward question:

may an alien subject to reinstatement of a removal order ap

‐ ply for asylum? The general asylum statute, 8 U.S.C. § 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 in accordance with

this section or, where applicable, section 1225(b) of this title.”

Garcia contends that this language grants him the right to ap

‐ ply for asylum. The Attorney General counters with the spe

‐

cific language of 8 U.S.C. § 1231(a)(5), providing that aliens4 No. 16

‐ 3234

subject to a reinstated order of removal are “not eligible and

may not apply for any relief under this chapter.” Since asylum

is a form of relief, the Attorney General argues that Section

1231(a)(5) categorically prohibits Garcia’s application.

Initially, the Attorney General also argued that Garcia

lacked standing to file this petition in light of our decision in

Delgado

‐ Arteaga v. Sessions

, 856 F.3d 1109, 1115 (7th Cir. 2017).

In that case, we held that because “[a]sylum is a form of dis

‐ cretionary relief in which ‘there is no liberty interest at

stake[,]’” the petitioner had not suffered an Article III injury

‐

in

‐ fact when he was denied the opportunity to apply. Id.

(quoting Delgado v. Holder

, 674 F.3d 759, 765 (7th Cir. 2012)).

Relying on Delgado

‐ Arteaga

, the panel initially reached the

same conclusion in this case. Garcia v. Sessions

, 859 F.3d 406,

408 (7th Cir. 2017).

In response to Garcia’s petition for rehearing, the govern

‐

ment repudiated its standing argument. Moreover, we recog

‐

nize that we are the only circuit to hold that a petitioner lacks

standing to assert a statutory right to apply for asylum. See

Mejia v. Sessions

, 866 F.3d 573, 583–84 (4th Cir. 2017) (collecting

cases). In light of these considerations, we granted Garcia’s

motion for panel rehearing. Subsequently, a majority of the

active judges of this court indicated a desire to overrule the

cited portion of Delgado

‐ Arteaga in accordance with our pro

‐

cedures under Circuit Rule 40(e).

We now conclude that Delgado

‐ Arteaga ’s holding was in

‐

consistent with Article III standing doctrine. A litigant has

standing to sue if he has suffered an injury

‐ in

‐ fact, the injury

is fairly traceable to the defendant’s conduct, and it is redress

‐

able by a favorable judicial decision. Lujan v. Defenders of Wild

‐ life

, 504 U.S. 555, 560–61 (1992). Garcia has been denied theNo. 16

‐ 3234 5

right to apply for asylum. While asylum is indeed entirely dis

‐ cretionary, an alien must be allowed to apply for asylum be

‐

fore he can receive it. In other words, the 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 though there is no due

process right to asylum. That injury is caused by the Attorney

General’s interpretation of Section 1231(a)(5) and could be

cured by a favorable decision of this court. That is, even

though this court could never guarantee that Garcia receive

asylum, it could order the Attorney General to allow him to

apply

. Therefore, Garcia has standing to challenge the denial

of his alleged statutory right to apply for asylum. Insofar as

Delgado

‐ Arteaga held otherwise, it is overruled. 1

Because we have decided that Garcia has standing to peti

‐

tion, we must reach the merits of his claim. The question he

presents—whether an alien subject to a reinstated order of re

‐

moval may apply for asylum—has recently confronted sev

‐

eral of our sister circuits. All of them have answered in the

negative, although there is a significant split in the reasoning

of those decisions. The Second, Fourth, Fifth, and Eleventh

Circuits each found the text of 8 U.S.C. § 1231(a)(5) disposi

‐

tive, 2 while the First, Third, and Ninth Circuits deferred to the

1 This opinion has thus been circulated to all judges in active service on

this court and no judge voted to rehear this case en banc.

2 Herrera

‐ Molina v. Holder

, 597 F.3d 128, 139 (2d Cir. 2010) (“According to

the relevant statutory and regulatory provisions, relief other than with

‐ holding of removal, e.g., asylum or cancellation of removal, is not availa

‐

ble to this petitioner.”); Mejia

, 866 F.3d at 584 (“[W]e discern no ambiguity

in the interplay between § 1231(a)(5) and § 1158(a)(1). We think it clear

that, by enacting the reinstatement bar, Congress intended to preclude in

‐

dividuals subject to reinstated removal orders from applying for asy

‐6 No. 16

‐ 3234

government’s position under Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc.

, 467 U.S. 837 (1984). 3 We agree

with the result in all these cases. Further, we follow the first

group of courts and hold that the plain text of 8 U.S.C.

§1231(a)(5) prohibits Garcia from applying for asylum.

Section 1231(a)(5) prohibits aliens subject to reinstated or

‐

ders of removal from applying for “any relief under this chap

‐

ter.” “[A]sylum is a form of relief from removal,” Jimenez

‐ Mo

‐

rales

, 821 F.3d at 1310, “because, if granted, it prevents the re

‐

moval from going forward[,]” Ramirez

‐ Mejia

, 794 F.3d at 489.

That is why “[c]ourts routinely refer to asylum as a form of

lum.”); Ramirez

‐ Mejia v. Lynch

, 794 F.3d 485, 490 (5th Cir. 2015) (“Section

1231(a)(5), read plainly, broadly denies all forms of redress from removal,

including asylum.”); Jimenez

‐ Morales v. U.S. Att’y Gen.

, 821 F.3d 1307, 1310

(11th Cir. 2016) (“As asylum is a form of relief from removal, we join the

Second and Fifth Circuits in holding that a person like Mr. Jimenez

‐ Mo

‐

rales is not eligible for and cannot seek asylum.” (citation omitted)).

3 Garcia v. Sessions

, 856 F.3d 27, 41 (1st Cir. 2017) (“[W]e cannot say that

the agency acted unreasonably in choosing to ensure that the same aliens

who could not seek asylum still would be protected through withholding

of removal from suffering persecution or torture in their home country, in

accord with § 1231(b)(3)(A)’s clear directive to the Attorney General to af

‐

ford that vital and long

‐ understood

‐ to

‐ be mandatory protection.”); Cazun

v. Att’y Gen.

, 856 F.3d 249, 260 (3d Cir. 2017) (“It was reasonable for the

agency to conclude that the statutory reinstatement bar foreclosing ‘any

relief under this chapter’ means just what it says: no asylum relief is avail

‐

able to those subject to reinstated removal orders.”); Perez

‐ Guzman v.

Lynch

, 835 F.3d 1066, 1082 (9th Cir. 2016) (“[W]e hold that 8 C.F.R.

§ 1208.31(e) is a reasonable interpretation of the interplay between § 1158

and § 1231, and we must therefore defer to it under Chevron

. In keeping

with that regulation, Perez is not eligible to apply for asylum under § 1158

as long as he is subject to a reinstated removal order.”). But see Cazun

, 856

F.3d at 262 (Hardiman, J., concurring in the judgment) (noting that he

would find the agency’s interpretation compelled by the statutory text).No. 16

‐ 3234 7

relief from removal and frequently employ the phrase ‘asy

‐

lum relief.’” Id. Because the word “any” typically “has an ex

‐ pansive meaning,” United States v. Gonzales

, 520 U.S. 1, 5

(1997), it should be read to encompass all forms of relief, in

‐ cluding asylum. Therefore, Congress has unambiguously de

‐

clared that aliens in Garcia’s position are ineligible to apply

for asylum. 4

The general asylum statute, 8 U.S.C. § 1158(a), doesn’t

change that result. While it says that “[a]ny alien

... irrespec

‐

tive of such alien’s status, may apply for asylum,” that general

statement is followed by numerous exceptions. Section

1231(a)(5) should be read as another limitation on the right to

apply for asylum. “Canons of statutory construction discour

‐

age an interpretation that would render a statute meaningless

and usually require that a ‘specific’ statute prevail over a ‘gen

‐

eral’ one.” In re Baker

, 430 F.3d 858, 860 (7th Cir. 2005). 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. Therefore,

we join the Second, Fourth, Fifth, and Eleventh Circuits in re

‐ jecting it.

III. Conclusion

We hold, contrary to Delgado

‐ Arteaga v. Sessions

, that an al

‐

ien has standing to contest a denial of the right to apply for

asylum in this court. That portion of Delgado

‐ Arteaga is there

‐

fore overruled. However, we join our sister circuits in holding

4 We don’t address whether withholding of removal might also be a form

of “relief” under Section 1231(a)(5) even though Garcia received it. Nei

‐

ther party takes issue with the grant of withholding in this case so it is not

properly before the court.8 No. 16

‐ 3234

that an alien subject to a reinstated order of removal is not

eligible to apply for asylum. Therefore, we deny Garcia’s pe

‐

tition for review.

D ENIED