MELIDA TEREZA LUNA-GARCIA DE GARCIA, also known as Melida Luna-Garcia, also known as Melina Luna Garcia de Garcia, Petitioner,
WILLIAM P. BARR, U.S. ATTORNEY GENERAL, Respondent.
Petitions for Review of Orders of the Board of Immigration
Appeals BIA No. A097 831 833
JOLLY, ELROD, and WILLETT, Circuit Judges.
JENNIFER WALKER ELROD, CIRCUIT JUDGE:
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.
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.
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.
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.
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.
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.
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. 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).
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)
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 ...