North Carolina Lawyers Weekly
A Salvadoran man in the U.S. illegally was ineligible for asylum, based on the reinstatement of a removal order resulting from his previous illegal entry. The reinstated order barred his application even if the supporting circumstances had not yet occurred at the time of his first removal.
Background
Petitioner Francisco Lara-Aguilar, a citizen of El Salvador, was apprehended in 2013 after unlawfully entering the U.S. He didn’t apply for asylum at that time or express a fear of returning to El Salvador, and he was removed.
In early 2014, Lara-Aguilar again unlawfully entered the U.S. and was detained. This time, however, Lara-Aguilar indicated that he feared political persecution were he to return to El Salvador because he worked on behalf of the ARENA political party during El Salvador’s presidential election campaign in January 2014. Supporters of the ruling FMLN party had physically assaulted him twice and threatened him with deadly violence. Police responded dismissively to Lara-Aguilar’s report of the first incident, so he didn’t report the second. Lara-Aguilar told his interviewing asylum officer that he couldn’t live anywhere in El Salvador because “the FMLN is everywhere.”
The asylum officer determined that Lara-Aguilar had a reasonable fear of future persecution in the future, but an immigration judge found he was ineligible for asylum under 8 U.S.C. § 1231(a)(5) and ordered that he be removed to any country other than El Salvador. The Board of Immigration Appeals affirmed the IJ’s decision.
Lara-Aguilar appealed to this court on grounds that an asylum bar based on a reinstated order of removal doesn’t apply where asylum is claimed based on events arising after the prior order of removal was effected.
Changed circumstances
Lara-Aguilar’s situation is substantially similar to the facts underlying Mejia v. Sessions, 866 F.3d 573, 584 (4th Cir. 2017), where the petitioner was ineligible for asylum due to a reinstated removal order. In that case, this court construed § 1231(a)(5) as a specific – and categorical – exception to 8 U.S.C. § 1158(a)(1)’s general grant of eligibility to apply for asylum. However, unlike Lara-Aguilar, the petitioner in Mejia had grounds to apply for asylum prior to her initial removal.
Contrary to Lara-Aguilar’s contention, this distinction does not alter Mejia’s conclusion that the prohibition imposed by § 1231(a)(5) is categorical. In interpreting the statutory framework, Mejia turned to the general-specific rule of construction only because § 1158(a)(1) contains a general permission that is contradicted by § 1231(a)(5)’s specific prohibition, and application of the general-specific rule was necessary to eliminate the contradiction. By contrast, § 1158(a)(2)(D) and § 1231(a)(5) are not in conflict.
Lara-Aguilar also incorrectly reads § 1231(a)(5) as if it were a fourth exception enumerated by § 1158(a)(2) and, as such, subject to § 1158(a)(2)(D)’s changed circumstances provision. By its express terms, that provision applies only to two of the three enumerated exceptions and doesn’t reference § 1231(a)(5); nor does § 1231(a)(5) reference changed circumstances. Accordingly, no irremediable conflict requires invoking the general-specific canon.
While Lara-Aguilar argues that this interpretation makes asylum after changed circumstances a practicale impossibility, not every alien covered by § 1158(a)(2)(D) is necessarily subject to a reinstated order of removal. Furthermore, individuals wishing to avail themselves of § 1158(a)(2)(D)’s changed-circumstances provision may apply for asylum by lawfully approaching a port of entry without illegally crossing the border.
Anomalous results
It may be true that, under this framework, an alien can avoid the reinstatement bar by remaining unlawfully rather than returning illegally – a result that Lara-Aguilar characterizes as absurd. But surprising or anomalous effects are not the same as absurd effects. To truly be characterized as absurd, the interpretation of a statute must result in an outcome that is so gross as to shock the general moral or common sense. Here, it is certainly plausible that Congress intended the differing treatment under § 1158(a)(2)(D) and § 1231(a)(5) of aliens who illegally re-enter 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. Congress meant to strengthen the effect of the reinstatement bar, and this court’s interpretation of the relevant statutory framework is faithful to that intent.
Petition denied.
Lara-Aguilar v. Sessions (Lawyers Weekly No. 001-085-18, 20 pp.) (Traxler, J.) No. 16-1836; May 2, 2018; from BIA. Shon Robert Hopwood for Petitioner; Matthew B. George for Respondent. 4th Cir.
