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August 2017 4th Cir. Case: Rule Concerning Applying for Asylum After Having Been Previously Removed (Part Two)

Last updated on Aug 27th, 2017

In Mejia v. Sessions, a lot of legal issues were presented. However, in this post, we will look at just one. We will look at how the court decided the issue of whether an individual is, on the facts outlined above, ineligible to apply for asylum when she is subject to a reinstated removal order.

In this case, the Fourth Circuit held that a noncitizen subject to a reinstated removal order, such as Ms. Calla Mejia, is ineligible to apply for asylum.

In arriving at its decision, the Fourth Circuit looked at, among other things, immigration law 8 U.S.C. § 1231(a)(5), which states: “If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under [Chapter 12 of Title 8], and the alien shall be removed under the prior order at any time after the reentry.”

To give effect to § 1231(a)(5), the Attorney General promulgated regulation 8 C.F.R. § 241.8. Typically, under this regulation, if an immigration officer determines: (1) “the alien has been subject to a prior order of removal”; (2) “the alien is in fact [the] alien who was previously removed”; and (3) “the alien unlawfully reentered the US,” then the alien has no right to a hearing before an IJ, and shall be summarily removed under the prior order. However, the regulation provides an exception for a noncitizen who expresses a fear of returning to the country designated in the reinstated removal order: under 8 C.F.R. § 241.8(e), “the alien shall be immediately referred to an asylum officer for an interview to determine whether the alien has a reasonable fear of persecution or torture.” If an asylum officer concludes that the alien has a “reasonable fear of persecution or torture,” the case, according to 8 C.F.R. § 208.31(e), is referred to an IJ “for full consideration of the request for withholding of removal only.”

All six circuit courts who have considered the issue have also concluded that an individual subject to a reinstated removal order is not eligible for and may not seek asylum. This includes the first, second, third, fifth, ninth, and eleventh circuit courts.

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