Brenes-Lezama v. Garland ( 2021 )

Case: 20-60126 Document: 00516098738 Page: 1 Date Filed: 11/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 18, 2021
No. 20-60126
Lyle W. Cayce
Clerk
Hilda Rosa Brenes-Lezama,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
No. A029-538-140
Before Davis, Haynes, and Oldham, Circuit Judges.
W. Eugene Davis, Circuit Judge: *
Hilda Rosa Brenes-Lezama, a native and citizen of Nicaragua,
petitions this Court for review of an order by the Board of Immigration
Appeals (“BIA”), upholding the Immigration Judge’s denial of her
application for deferral of removal under the Convention Against Torture
(“CAT”). Approximately six weeks after the BIA issued its decision, Brenes-
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60126 Document: 00516098738 Page: 2 Date Filed: 11/18/2021
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Lezama was removed to Nicaragua. Because, according to binding precedent,
we can no longer grant Brenes-Lezama any effectual relief, we DISMISS
her petition for review as moot.
I.
Brenes-Lezama was granted lawful permanent resident status in the
United States in 2001. Five years later, she lost her status after pleading guilty
in 2006 to using a telephone to facilitate a drug-trafficking crime in violation
of 18 U.S.C. § 843(b). She was later placed in removal proceedings. 1
Although her conviction rendered her ineligible for asylum and withholding
of removal, Brenes-Lezama remained eligible for deferral of removal under
the CAT. 2 Her application for such relief, however, was denied by the
Immigration Judge (“IJ”), who ordered her removal to Nicaragua in
December 2009. The BIA upheld the IJ’s decision, and the Ninth Circuit
denied Brenes-Lezama’s subsequent petition for review. 3
Pursuant to the removal order, Brenes-Lezama was deported to
Nicaragua in 2010, but she reentered the United States illegally in 2011. She
was apprehended by immigration officials, pleaded guilty to illegal reentry
two months later, and was sentenced to time served. The Department of
Homeland Security (“DHS”) then reinstated her 2009 removal order. 4
1
See Lezama v. Holder, 565 F. App’x 618, 619 (9th Cir. 2014).
2
Id. As explained by the Ninth Circuit, a violation of § 843(b) of the Controlled
Substances Act “is categorically an aggravated felony,” which made Brenes-Lezama
ineligible for asylum, and “[i]t is also presumptively a ‘particularly serious crime,’ which
[made her] ineligible for withholding of removal unless she rebut[ted] the presumption.”
Id. (citations omitted).
3
Id.
4
Importantly, under 8 U.S.C. § 1231(a)(5), when an alien has reentered the United
States illegally after having been removed under an order of removal, the prior order of
2
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Because Brenes-Lezama was subject to a reinstated order of removal,
no removal proceedings were initiated upon completion of her sentence. 5 But
because she expressed a fear of returning to Nicaragua, she was referred to
an asylum officer, who determined that she had a reasonable fear of torture.
DHS referred her case to an IJ for “withholding-only proceedings.” 6 Brenes-
Lezama then filed an application for deferral of removal under the CAT.
In August 2019, the IJ denied her relief and ordered reinstatement of
the 2009 removal order. Brenes-Lezama appealed to the BIA, which upheld
the IJ’s decision in January 2020. She timely filed the instant petition for
review in this Court. In March 2020, Brenes-Lezama was removed to
Nicaragua pursuant to the reinstated order of removal.
II.
“This court’s jurisdiction requires a live case or controversy at all
stages of litigation.” 7 And, “[i]nherent in the case-or-controversy
requirement is the doctrine of mootness.” 8 When it is impossible for us to
grant a litigant any effectual relief, our court lacks jurisdiction. 9 As set forth
below, we are bound by our recent decision in Mendoza-Flores v. Rosen to
removal is reinstated from its original date and “is not subject to being reopened or
reviewed.” Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2282 (2021).
5
See id. at 2282-83.
6
As explained by the Supreme Court, because Brenes-Lezama was subject to
removal based on a reinstated order of removal, the proceedings are referred to as
“withholding-only proceedings” because the proceedings are “limited to a determination
of whether the alien is eligible for withholding or deferral of removal,” and the parties are
“prohibited from raising or considering any other issues.” Id. at 2283 (citations omitted).
7
Mendoza-Flores v. Rosen, 983 F.3d 845, 847 (citation omitted).
8
Id.9
Id. (citation omitted).
3
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dismiss Brenes-Lezama’s petition for review as moot because we are unable
to grant her any effectual relief. 10
In Mendoza-Flores, the petitioner (Mendoza-Flores) pleaded guilty to
a drug-trafficking crime and, after completing his sentence, was removed to
Mexico pursuant to a removal order. Mendoza-Flores later reentered the
United States illegally, was apprehended, and detained by immigration
agents. After his prior removal order was reinstated, he told immigration
officials that he feared returning to Mexico. An asylum officer determined
that he had a reasonable fear of torture, and DHS referred his case to an IJ for
“withholding-only proceedings.” 11
Mendoza-Flores applied for, inter alia, deferral of removal under the
CAT. After conducting a hearing, the IJ denied his request, and the IJ’s
denial was upheld by the BIA. Following the BIA’s decision, Mendoza-Flores
timely petitioned this Court for review; however, he did not move for a stay
of removal. Mendoza-Flores subsequently was removed to Mexico pursuant
to the reinstated removal order.
Stating that Mendoza-Flores’s removal to Mexico “necessitate[d] our
consideration of mootness,” this Court noted that Mendoza-Flores’s
petition for review only “challenge[d] the BIA’s decision in his withholding-
only proceeding” and that “[t]he legality of his [prior] removal order and the
[] reinstatement of th[e] removal order [was] therefore not before us.” 12 This
10
Although Brenes-Lezama argues that our decision in Mendoza-Flores is contrary
to the Supreme Court’s decision in Nasrallah v. Barr, 140 S. Ct. 1688 (2020), there was no
mention that the petitioner in that case had been removed from the United States while his
petition for review was pending, and the proceedings were not “withholding-only”
proceedings.
11
Mendoza-Flores, 983 F.3d at 846.
12
Id. at 847.
4
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Court further determined that “Mendoza-Flores’s subsequent removal to
Mexico moot[ed]” his claim for deferral of removal under the CAT, “unless
he [could] show that he suffer[ed] collateral legal consequences from the
BIA’s withholding-only decision.” 13
This Court first noted that “[c]ollateral consequences must stem
from the underlying cause of action to salvage justiciability.” 14 This Court
then determined that even if we decided that the BIA erred in denying
Mendoza-Flores’s requests for withholding and/or deferral of removal, “he
would still be subject to the [prior] removal order and thus inadmissible to
the United States.” 15 In other words, while inadmissibility would be a
collateral legal consequence of a removal order, “it is not a collateral
consequence of the BIA’s withholding-only decision.” 16 Because Mendoza-
Flores suffered no collateral legal consequences from the BIA’s denial of
withholding and deferral of removal, we held that “we [we]re unable to grant
Mendoza-Flores any effectual relief and thus lack[ed] jurisdiction to review
the BIA’s decision.” 17
Our decision in Mendoza-Flores is directly applicable here. Like
Mendoza-Flores, Brenes-Lezama seeks review of the BIA’s decision denying
her deferral of removal in a withholding-only proceeding. The legality of the
2011 removal order and the 2018 reinstatement of that removal order is not
before us; Brenes-Lezama did not move for a stay of removal; and she has
been removed to Nicaragua. Even if we determined that the BIA erred in
13
Id. (citation omitted).
14
Id. at 848 (citations omitted).
15
Id. (citation omitted).
16
Id. at 847-48.
17
Id. at 848.
5
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denying her deferral of removal, Brenes-Lezama is still subject to the 2011
removal order and thus inadmissible to the United States. Because Brenes-
Lezama suffers no collateral legal consequences from the BIA’s denial of her
request for deferral of removal, we are unable to grant her any effectual relief.
Consequently, we lack jurisdiction over this matter.
III.
Based on the foregoing, we DISMISS Brenes-Lezama’s petition for
review for lack of jurisdiction as moot.
6