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

In Mejia v. Sessions, a case decided recently (on August 9, 2017) by the Fourth Circuit Court of Appeals, the circuit court addressed many legal issues, one of which highlights the importance, for an applicant in removal proceedings, of pursuing an asylum claim (provided there is a plausible case that the applicant qualifies for asylum). This is important, the case of Mejia v. Sessions shows, because of the impact a reinstated order of removal has on an applicant’s ability to later apply for asylum.

Ms. Calla Mejia fled to the US, from her native Peru, after suffering years of domestic abuse from her husband, a Peruvian National Police officer. She entered the US illegally in April 2015, by wading across the Rio Grande river. She was apprehended by border agents, to whom she told that she came to the US to “reside and work in New York” for a few years. DHS detained her.

While in DHS detention, Ms. Calla Mejia was referred to an asylum officer who conducted a credible-fear interview. She explained to the asylum officer that she had been threatened, cruelly beaten, and raped by her husband for several years. She further explained that when she reported his abuse to the police in Peru, they never helped her once they heard her husband was a police officer. She also explained she could not safely live anywhere in her native country because her husband would look for her and harm her. The asylum officer decided that Ms. Calla Mejia has shown a credible fear of returning to Peru, so Ms. Calla Mejia was placed in a full removal proceeding.

Ms. Calla Mejia appeared in removal proceedings without a lawyer. Her June 2015 Master Calendar Hearing was consolidated with the hearings of seven other women. The immigration judge (IJ) advised the women of their right to apply for asylum, withholding of removal, and protection under the Convention Against Torture. The IJ also spoke at length about credibility, explaining: “By now each of you have given at least two separate sworn statements. You gave one to the border patrol when you were apprehended and another to the asylum officer. If those two statements are not consistent with each other you have a credibility problem. Credibility problems are extremely difficult to overcome under our law.”

The IJ then confirmed that Ms. Calla Mejia understood her rights as explained by the IJ. The IJ also noted to Ms. Calla Mejia that she had “told the second officer [she was] fearful of returning to [her] country,” but that she “told the first officer [she was] going to live in New York for five years and [she was] not afraid to return.”

The IJ informed Ms. Calla Mejia, “if you want to apply for asylum, withholding of removal and Convention Against Torture relief, I will allow it, but I should tell you, you have a credibility problem. A serious one.”

Ms. Calla Mejia declined to apply for asylum, withholding of removal, or Convention Against Torture relief; instead, she accepted an order of removal and waived her right to appeal. The IJ issued a final order of removal, and, on June 22, 2015, Ms. Calla Mejia was removed to native country.

However, Ms. Calla Mejia’s immigration story was far from finished.

In Peru, after being removed, Ms. Calla Mejia’s husband tracked her down, attacked her, and raped her. Within a few months of her removal, Ms. Calla Mejia again fled to the US and tried to illegally re-enter the country. Again, she was apprehended by DHS, which then reinstated her previous removal order.

Around this time, Ms. Calla Mejia credibly established a reasonable fear of persecution in Peru; DHS placed her in “withholding of removal-only” proceedings and deemed her ineligible to apply for asylum because of her reinstated removal order. An IJ concluded that she was ineligible for asylum. Instead of asylum, the IJ granted Ms. Calla Mejia (who no longer was handling her case without an attorney) withholding of removal.

Ms. Calla Mejia challenged her denial by filing a petition for review in the Court of Appeals. Ms. Calla Mejia maintained, supported by a few different arguments, the decision she was ineligible to apply for asylum was wrong.

In return, the government argued, among other things, that immigration law prohibits someone with a reinstated order of removal from applying for asylum.

To see (1) what the Fourth Circuit Court decided concerning whether the law prevents someone with a reinstated order of removal from applying for asylum, (2) how the Fourth Circuit made its decision, and (3) what potential applicants for asylum might learn from the court’s decision, continue to PART TWO of this post.