Mejia v. Whitaker

• Citation: 913 F.3d 482
• Decision Date: 16 January 2019
• Docket Number: No. 16-60179,16-60179
• Parties: Jose Santos MEJIA, also known as Jose Santos Zavala-Mejia, Petitioner v. Matthew G. WHITAKER, Acting U. S. Attorney General, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

913 F.3d 482

Jose Santos MEJIA, also known as Jose Santos Zavala-Mejia, Petitioner

v.Matthew G. WHITAKER, Acting U. S. Attorney General, Respondent

No. 16-60179

United States Court of Appeals, Fifth Circuit.

FILED January 16, 2019

Kai William De Graaf, Esq, Law Office of Kai Degraaf, New York, NY, for Petitioner.

Claire L. Workman, Senior Litigation Counsel, Scott Michael Marconda, Esq., Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Rosanne M. Perry, Trial Attorney, U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondent.

Before KING, DENNIS, and COSTA, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Jose Santos Mejia petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his motion to reopen his removal proceedings so that he could apply for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We dismiss in part for lack of jurisdiction and deny in part.¹

I

Mejia, a native and citizen of Honduras, entered the United States on August 30, 2004, without having been admitted or paroled after inspection by an immigration officer. Immigration authorities served Mejia in person with a Notice to Appear (NTA) in removal proceedings and subsequently released him. The NTA did not provide a date for Mejia’s hearing. When a hearing date was later set, a notice of the hearing (NOH) was not sent to Mejia. In November 2004, an immigration judge (IJ) in Texas held an in absentia hearing, found Mejia subject to removal, and ordered him removed to Honduras. The removal order stated that Mejia did not receive a NOH because he failed to provide his address to the immigration court. In November 2010, immigration authorities apprehended Mejia, and he was removed to Honduras in December.

Mejia reentered the United States in May 2011. In June 2014, immigration authorities again apprehended Mejia, and the Department of Homeland Security reinstated his prior removal order. Mejia claims that he did not receive a copy of the reinstatement order until October 24, 2014. On the same day, Mejia filed a motion to reopen his prior removal proceedings to apply for asylum, withholding of removal, and protection under the CAT, which he claims he filed before he received notice of the reinstatement of his prior removal order. Mejia argued that his motion to reopen should be considered timely because he did not receive notice of his removal hearing and because, according to him, country conditions in Honduras had materially changed.

The IJ denied Mejia’s motion. The IJ concluded that Mejia was not entitled to notice of the 2004 removal hearing because he failed to provide a valid address to the immigration court. The IJ further found that Mejia failed to show a material change in country conditions. Finally, the IJ determined that Mejia was not eligible for sua sponte reopening by the immigration court. Mejia appealed to the BIA, and the BIA upheld the IJ’s denial of reopening for essentially the same reasons the IJ provided. Mejia now petitions this court for review of the BIA’s decision.

II

Mejia challenges the BIA’s denial of his motion to reopen. Generally, the Immigration and Naturalization Act (INA) allows a party to file one motion to reopen deportation proceedings no later than ninety days after the date on which the final administrative decision was entered in the proceedings. See 8 U.S.C. § 1229a(c)(7)(A), (D)(i). Here, Mejia filed his motion to reopen in 2014, approximately ten years after the immigration court issued his prior removal order in 2004. His motion to reopen therefore exceeded the ninety-day statutory deadline.

There are a number of exceptions to the statutory deadline, under which an otherwise untimely motion to reopen may be granted. Three such exceptions are relevant here. First, an individual’s motion to reopen on the basis that he did not receive proper notice of his initial removal proceeding can be filed at any time. See id. § 1229a(b)(5)(C)(ii). Second, there is no time limit for a motion to reopen if it is made for purposes of applying for asylum or withholding of removal "based on changed country conditions arising in the country of nationality, if such evidence is material" and could not have been presented at the previous proceeding. Id. § 1229a(c)(7)(C)(ii). Finally, the BIA may reopen removal proceedings at any time on its own motion. See Mata v. Lynch , ––– U.S. ––––, 135 S.Ct. 2150, 2153, 192 L.Ed.2d 225 (2015) (citing 8 C.F.R § 1003.2(a) ). Mejia argues that the BIA should have granted reopening on all three grounds. We address each of these grounds in turn.

A

First, Mejia argues that the BIA abused its discretion in denying his motion to reopen because, he asserts, he was improperly denied notice of the hearing in his original removal proceedings. See 8 U.S.C. § 1229a(b)(5)(C)(ii). He challenges the BIA’s finding that he did not provide his address to the immigration court and the BIA’s conclusion that he was therefore not entitled to notice.

We must first determine whether we have jurisdiction to review the BIA’s denial of Mejia’s motion to reopen despite Mejia’s lack-of-notice argument. We examine our jurisdiction on our own motion when necessary. Green Tree Servicing, L.L.C. v. Charles , 872 F.3d 637, 639 (5th Cir. 2017) (citing Hill v. City of Seven Points , 230 F.3d 167, 169 (5th Cir. 2000) ). Generally, our jurisdiction to review final orders of removal, under § 1252(a)(1), "encompasses review of decisions refusing to reopen or reconsider such orders." Mata , 135 S.Ct. at 2154 ; § 1252(b)(6). However, two potential barriers to our jurisdiction exist here: (1) the statutory prohibition on review of removal orders after their later reinstatement contained in § 1231(a)(5); and (2) our circuit’s requirement that a petitioner show a gross miscarriage of justice to succeed on a collateral attack on a removal order.

Section 1231(a)(5) provides that, "If the Attorney General finds that an alien has reentered the United States illegally after having been removed ..., the prior order of removal is reinstated from its original date." 8 U.S.C. § 1231(a)(5). In Rodriguez-Saragosa v. Sessions , 904 F.3d 349 (5th Cir. 2018), we left open the question whether a motion to reopen may be brought despite this provision where the basis for reopening is lack of notice of an in absentia removal order. 904 F.3d at 355. As we noted in Rodriguez-Saragosa , "the Ninth Circuit construed § 1231(a)(5) to allow the BIA to consider an alien’s motion to reopen a removal order that had been entered in absentia ," because of " ‘due process concerns’ that arise where an alien first learns of a removal order against her after that order has already been reinstated, and" because there exists "a specific statutory provision authorizing an alien who did not receive notice of an in absentia removal order to file a motion to reopen independently of the general motion-to-reopen statute." Id. (citing Miller v. Sessions , 889 F.3d 998, 1002–03 (9th Cir. 2018) ). Furthermore, as we acknowledged in Rodriguez-Saragosa , § 1231(a)(5) ’s effect of stripping appellate jurisdiction is subject to the INA’s "savings provision for constitutional claims or questions of law." 904 F.3d at 354 ; see § 1252(a)(2)(D) (carving out from any provision "[that] limits or eliminates judicial review ... review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals"). Although Mejia necessarily knew of his prior removal order because he had previously been removed, the in absentia removal order he challenged through his motion to reopen nonetheless implicates due process and legal questions, because he contends that the prior order is invalid for lack of notice. Therefore, we have jurisdiction and may review the BIA’s denial of Mejia’s motion to reopen based on lack of notice under § 1252(a)(2)(D).

Additionally, Mejia is not required to show a gross miscarriage of justice to trigger jurisdiction. Under this court’s precedent, we lack jurisdiction to consider a collateral attack on an underlying order of removal unless the petitioner demonstrates that he has exhausted administrative remedies and that the initial removal proceedings constituted a "gross miscarriage of justice." Ramirez-Molina v. Ziglar , 436 F.3d 508, 514 (5th Cir. 2006). However, as the government concedes, we recognized in Rodriguez-Saragosa that "[m]otions to reopen are not ‘collateral’; they are attempts to revisit an order made within the same matter, akin to an appeal or motion for reconsideration." Rodriguez-Saragosa , 904 F.3d at 353 n.1. Therefore, Mejia is not required to show extraordinary circumstances for us to have jurisdiction over his petition for review, and instead we may proceed to review the merits of "the justifications expressed by the agency at the time of its ruling." Budhathoki v. Nielsen , 898 F.3d 504, 515 (5th Cir. 2018).

We review the denial of a motion to reopen under a "highly deferential abuse-of-discretion standard ...." Gomez–Palacios v. Holder , 560 F.3d 354, 358 (5th Cir. 2009). "[We] must affirm the BIA’s decision as long as it is not capricious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach." Id. "[T]his court may not overturn the BIA’s factual findings unless the evidence compels a contrary conclusion." Id. We review only the order of the BIA unless, as here, the IJ’s decision "has some impact on the BIA’s decision," Mikhael v. I.N.S. , 115 F.3d 299, 302 (5th Cir. 1997), in which case we review both, see Wang v. Holder , 569 F.3d 531, 536 (5th Cir. 2009).

A NTA or notice of a change in time or place of removal proceedings should be personally served, but may be...