Argued: December 7, 2017
Petition for Review of an Order of the Board of Immigration
Robert Hopwood, GEORGETOWN LAW APPELLATE COURTS IMMERSION
CLINIC, Washington, D.C., for Petitioner.
Matthew B. George, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
H. Goldblatt, Director, Sarah E. Balkissoon, Student Counsel,
Hillary B. Neger, Student Counsel, Harry R.S. Phillips,
Student Counsel, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Petitioner.
A. Readler, Acting Assistant Attorney General, Civil
Division, Benjamin C. Mizer, Principal Deputy, Assistant
Attorney General, Civil Division, Douglas E. Ginsburg,
Assistant Director, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
TRAXLER, KING, and HARRIS, Circuit Judges.
TRAXLER, Circuit Judge
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 8 U.S.C. § 1231(a)(5). This
time, Lara-Aguilar sought various forms of relief from
removal, including asylum and withholding of removal.
Although Lara-Aguilar was granted withholding of removal, the
Board of Immigration Appeals ("BIA") concluded that
he was ineligible for asylum under § 1231(a)(5) based on
his reinstated order of removal.
court recently held that an alien subject to a reinstated
order of removal may not apply for asylum. See Mejia v.
Sessions, 866 F.3d 573, 584 (4th Cir. 2017).
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 8 U.S.C. §
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.
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 8 U.S.C. § 1231(a)(5).
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.
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.
the reasonable fear interview, Lara-Aguilar's claim was
referred to an immigration judge ("IJ") for
withholding of removal proceedings. 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
persecution 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 removal only." (emphasis added)).
Even though the immigration regulations provided for
withholding-only proceedings, see 8 C.F.R.
§§ 208.31(e), 208.16, Lara-Aguilar sought asylum,
withholding of removal, and protection under the Convention
Against Torture ("CAT"). The IJ concluded that
§ 1231(a)(5) precluded Lara-Aguilar from seeking asylum.
The IJ did not provide an in-depth analysis of this issue,
stating only that, "based on the regulatory framework,
" he did "not have the authority to consider an
application for asylum." J.A. 127. The IJ did,
however, grant Lara-Aguilar withholding of removal under 8
U.S.C. § 1231(b)(3)(A), ordering that he "be
removed to any country other than El Salvador." J.A.
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, 8 U.S.C. § 1231(a)(5),
"unambiguously states that an alien whose former removal
order has been reinstated is not eligible, and therefore may
not apply, for any relief from removal under the Act."
J.A. 4. This provision, the BIA explained, "is intended
to have an expansive meaning" and therefore cannot be
read to foreclose only "asylum claims that arose prior
to an alien's removal, ...