The Ninth Circuit has determined that a person subject to a reinstated order of removal is not eligible to apply for asylum. The court acknowledged that the asylum statute allows any non-citizen to apply for asylum, while the reinstatement provision prohibits any person subject to a reinstated order of removal from applying for any immigration relief (including asylum). The court then acknowledged that despite the absolute language, there are exceptions as to who can apply for asylum, and case law has established that those subject to reinstatement can still apply for withholding of removal and protection under the Convention Against Torture. Thus, the language of the statutes could not settle the dispute as to which statute trumps. The court found no information in the legislative history that would settle the question either. With this ambiguity in mind, the court found that the agency's regulation barring a person subject to reinstatement from applying for asylum was a reasonable interpretation of the statute.
On a brighter note, the court acknowledged that individuals subject to a reinstated order of removal can apply for a U visa. The court also reminded the Government of its authority to forego reinstating an order of removal, particularly when strong humanitarian concerns arise, thus allowing a person to pursue an asylum claim despite a prior order of removal.
The full text of Perez-Guzman v. Lynch can be found here: