Melida Luna-Garcia De Garcia v. William Barr, U. S
Opinion
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 *562 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 [
*563
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
,
Under
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 with an appropriate court of appeals in accordance with this section.
The government argues that there is an additional barrier for an alien, whose removal order has been reinstated, to overcome in order to preserve our jurisdiction under the savings provision in § 1252(a)(2)(D) : The alien must file a petition for review within 30 days of the removal order.
See
The 30-day filing deadline in
Our sister circuits that have examined the interplay between the savings provision and the 30-day filing deadline have reached the same conclusion. In reviewing a petition for review filed by an alien who unlawfully re-entered the United States, the Tenth Circuit observed that "with two stated exceptions, the savings clause in § 1252(a)(2)(D) permitting review of such claims does not apply to jurisdictional limitations
within
that section."
Cordova-Soto v. Holder
,
*565
Finally, applying the 30-day filing deadline in § 1252(b)(1) to the savings provision in § 1252(a)(2)(D) is consistent with our case law. We previously observed in
Ramirez-Molina
that "in the context of a petition for review of a reinstatement decision, we can review the validity of the underlying removal order
only if
[the alien] establishes that there was a gross miscarriage of justice in the initial proceedings."
In sum, if an alien illegally re-enters the United States and his prior removal order is reinstated, then, pursuant to the jurisdiction-stripping provision in § 1231(a)(5), the underlying removal order cannot be reviewed, except through the savings provision in § 1252(a)(2)(D). In order to preserve our jurisdiction under § 1252(a)(2)(D)'s savings provision, an alien must file a petition for review within 30 days of the removal order as required by § 1252(b)(1), in addition to exhausting all available administrative remedies and demonstrating that the initial proceedings constituted a gross miscarriage of justice.
See
Ramirez-Molina
,
III.
We now turn to Luna-Garcia's petition for review concerning the BIA's denial of withholding of removal and protection under the CAT.
4
"We review the BIA's decision and only consider the IJ's decision to the extent that it influenced the BIA."
Shaikh v. Holder
,
A.
Substantial evidence supports the BIA's conclusion that Luna-Garcia was not entitled to withholding of removal as her own testimony shows that she was never harmed and that her fear of future harm is speculative. "Under
B.
The BIA's denial of CAT protection was also supported by substantial evidence. Under the CAT, immigration officials "may not remove an alien to a country in which the alien is more likely than not to be tortured."
Morales v. Sessions
,
IV.
Next, we turn to the BIA's the denial of Luna-Garcia's motion to reopen based on allegedly new evidence, which we review for an abuse of discretion.
Zhao v. Gonzales
,
V.
For the foregoing reasons, we DENY Luna-Garcia's petitions for review.
This collateral attack is not the only vehicle through which Luna-Garcia seeks our answer on this question. Luna-Garcia also filed a motion to reopen and rescind with the IJ and the BIA pursuant to 8 U.S.C. § 1229a(b)(5)(C), which allows her to seek rescission of an
in absentia
removal order "at any time if [she] demonstrates that [she] did not receive notice." As we have previously explained, collateral attacks are separate and distinct from motions to reopen.
Mejia
,
This observation is consistent with our case law analogizing reinstatement orders to removal orders. Even under our case law, our review of reinstatement orders is limited to "the lawfulness of the reinstatement order," and we cannot " 'reopen or review' the merits of [the underlying] deportation order."
Ojeda-Terrazas v. Ashcroft
,
Luna-Garcia has not pointed us to a case from a court of appeals that has disagreed with the Third, Sixth, and Tenth Circuits' interpretation of
The government agrees that we have jurisdiction to review these claims.
Reference
- Full Case Name
- 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.
- Cited By
- 18 cases
- Status
- Published