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Luna-Garcia de Garcia v. Barr

United States Court of Appeals, Fifth Circuit

April 22, 2019

MELIDA TEREZA LUNA-GARCIA DE GARCIA, also known as Melida Luna-Garcia, also known as Melina Luna Garcia de Garcia, Petitioner,
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL, Respondent.

          Petitions for Review of Orders of the Board of Immigration Appeals BIA No. A097 831 833

          Before JOLLY, ELROD, and WILLETT, Circuit Judges.

          JENNIFER WALKER ELROD, CIRCUIT JUDGE:

         Melinda Tereza Luna-Garcia de Garcia, a citizen of Guatemala, petitions for review of her reinstated removal order, the order of the Board of Immigration Appeals (BIA) denying withholding of removal and protection under the Convention Against Torture (CAT), and the BIA's order denying her motion to reopen based on purportedly new evidence. We deny Luna-Garcia's petitions for review.

         I.

         In 2004, Luna-Garcia entered the United States without inspection and was detained by U.S. Customs and Border Protection (Border Patrol) shortly thereafter. The Border Patrol issued a Notice to Appear (NTA) and initiated removal proceedings against Luna-Garcia. On June 10, 2004, an immigration judge (IJ) held a hearing, but Luna-Garcia failed to appear. The IJ found that because Luna-Garcia failed to provide an address at which she could receive notice, no notice could be sent. The IJ subsequently ordered Luna-Garcia to be removed in absentia.

         Luna-Garcia voluntarily departed the United States in 2007, attempted to return to the United States in 2014, and was detained by the border agents. The Department of Homeland Security sought to reinstate the prior removal order. During the reinstatement proceeding, Luna-Garcia expressed a fear of returning to Guatemala, but an asylum officer determined that she did not have a reasonable fear of persecution or torture. The IJ disagreed and allowed Luna-Garcia to apply for relief from removal. Before the IJ, Luna-Garcia contended that she faced future persecution because Luna-Garcia's mother-in-law and sister-in-law testified against a Guatemalan national-believed to be a gang member-who raped and murdered Luna-Garcia's other sister-in-law in New York. Luna-Garcia alleged that she was in danger of future persecution based on three incidents in Guatemala: (1) three unknown men appearing at her sister-in-law's funeral; (2) anonymous phone calls threatening her father-in-law; and (3) someone breaking windows at her brother's home. These allegations formed the basis of Luna-Garcia's application for withholding of removal and protection under the CAT.

         The IJ denied Luna-Garcia's application for withholding of removal and protection under the CAT. In denying withholding of removal, the IJ found that Luna-Garcia did not "testify as to who those men [present at the funeral] were, why they passed by the funeral, or any reason they would harm her, apart from her speculation." The IJ further found that unfulfilled threats to Luna-Garcia's father-in-law did not establish persecution and that she failed to connect the broken windows at her brother's home to her family members' testimony. In denying CAT protection, the IJ found that Luna-Garcia failed to show that the Guatemalan government would acquiesce in her torture as her own testimony showed that the police responded to her calls. The BIA affirmed the denial of relief, and Luna-Garcia petitioned this court for review in July 2015.

         After Luna-Garcia filed her first petition for review, she also filed a motion to reopen before the BIA, claiming to have found additional evidence. Luna-Garcia sought to introduce, as additional evidence, the entire transcript of her family members' testimony and an affidavit from Dr. Max Manwaring regarding Guatemala's conditions. The BIA concluded that the trial transcript would not materially alter the finding that she would not be persecuted or tortured, and that the pertinent information contained in Dr. Manwaring's affidavit was not previously unavailable. The BIA thus denied Luna-Garcia's motion to reopen because, in its view, the additional evidence was immaterial and not previously unavailable. In October 2015, Luna-Garcia sought review of the BIA's denial of her motion to reopen.

         In the petitions for review before this court, Luna-Garcia (1) collaterally attacks the underlying 2004 removal order that was reinstated when she illegally re-entered the United States in 2014; (2) seeks review of the BIA's 2015 order dismissing her appeal of the IJ's denial of withholding of removal and CAT protection; and (3) requests review of the BIA's order denying her motion to reopen based on purportedly new evidence.

         II.

         We first turn to Luna-Garcia's collateral attack on the underlying 2004 in absentia removal order. Luna-Garcia argues that she did not receive written notice of the hearing and that the in absentia removal order resulted in a gross miscarriage of justice. But see 8 U.S.C. § 1229a(b)(5)(B) ("No written notice shall be required . . . if the alien has failed to provide the address required under [8 U.S.C. § 1229(a)(1)(F)]."). Luna-Garcia seeks to use this collateral attack as a vehicle for us to decide a legal question whether an alien may satisfy her obligation to provide an address to immigration officials to receive notice by providing a foreign address rather than a U.S. address.[1] The government argues that we lack jurisdiction to entertain Luna-Garcia's collateral attack. Reviewing "questions of law as to jurisdiction de novo," we agree with the government that we lack jurisdiction to consider Luna-Garcia's collateral attack on the underlying removal order. Ramirez-Molina v. Ziglar, 436 F.3d 508, 513 (5th Cir. 2006).

         Under 8 U.S.C. § 1231(a)(5), if an alien "has reentered the United States illegally after . . . 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." Despite § 1231(a)(5)'s sweeping jurisdiction-stripping language, we have observed that "§ 1231(a)(5)'s effect of stripping appellate jurisdiction is subject to the INA's 'savings provision for constitutional claims or questions of law'" in 8 U.S.C. § 1252(a)(2)(D). Mejia v. Whitaker, 913 F.3d 482, 488 (5th Cir. 2019) (quoting Rodriguez-Saragosa v. Sessions, 904 F.3d 349, 354 (5th Cir. 2018)); see also Ramirez-Molina, 436 F.3d at 513-14. The savings provision in § 1252(a)(2)(D) states:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed ...

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