921 F.3d 559
5th Cir.2019Background
- Luna-Garcia, a Guatemalan national, entered the U.S. without inspection in 2004, failed to appear at a 2004 removal hearing, and was ordered removed in absentia. She voluntarily departed in 2007.
- She reentered illegally in 2014, was detained, and DHS reinstated the 2004 removal order; an asylum officer found no reasonable fear but the IJ allowed her to apply for relief after she expressed fear.
- Her claims for withholding of removal and CAT protection rested on fear of future persecution tied to family members’ testimony against an alleged gang member, anonymous threats to relatives, men attending a funeral, and vandalism at a brother’s home.
- The IJ denied withholding and CAT relief (finding fears speculative and government response inconsistent with acquiescence), and the BIA affirmed. Luna-Garcia appealed to the Fifth Circuit in 2015.
- She also moved to reopen before the BIA with a trial transcript and an expert affidavit; the BIA found the transcript immaterial and the affidavit not previously unavailable and denied reopening.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to collateral-attack 2004 in absentia order after reinstatement | Luna-Garcia argues she lacked written notice and asks court to decide whether a foreign address can satisfy the notice-address requirement | Government says §1231(a)(5) reinstatement strips jurisdiction and petitioner failed to file a timely petition under §1252(b)(1) | Court lacks jurisdiction: savings clause does not excuse the 30-day filing requirement; collateral attack dismissed for untimeliness and failure to meet other prerequisites (exhaustion and gross miscarriage) |
| Withholding of removal under INA §1231(b)(3)(A) | Luna-Garcia claims a well-founded fear of persecution based on threats and attacks on relatives tied to testimony against a gang member | Government says evidence shows no past harm and future threats are speculative and disconnected from protected ground | Denied: substantial evidence supports BIA that fears are speculative and petitioner not entitled to withholding |
| CAT protection | Luna-Garcia argues she faces torture with government acquiescence if returned | Government argues petitioner failed to show likelihood of torture or state acquiescence; police responded to incidents | Denied: substantial evidence supports BIA finding lack of likelihood of torture and no government acquiescence |
| Motion to reopen based on new evidence | Luna-Garcia sought to add trial transcript and an expert affidavit as new material evidence | Government contends evidence is immaterial or was available earlier | Denied: BIA did not abuse discretion — transcript immaterial and affidavit not previously unavailable |
Key Cases Cited
- Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir.) (limits on collateral attack and exhaustion/gross-miscarriage requirement)
- Shaikh v. Holder, 588 F.3d 861 (5th Cir.) (standard of review for BIA factual findings and withholding relief)
- Mejia v. Whitaker, 913 F.3d 482 (5th Cir.) (discussion of limits of §1252 savings clause)
- Ramos-Lopez v. Lynch, 823 F.3d 1024 (5th Cir.) (30-day filing deadline is jurisdictional)
- Cordova-Soto v. Holder, 659 F.3d 1029 (10th Cir.) (savings clause does not override §1252 jurisdictional limits)
- Verde-Rodriguez v. Attorney Gen., 734 F.3d 198 (3d Cir.) (30-day deadline measured from original removal order; policy against encouraging reentry)
- Morales v. Sessions, 860 F.3d 812 (5th Cir.) (CAT standard: prohibition on removal to likely torture with state acquiescence)
- Roy v. Ashcroft, 389 F.3d 132 (5th Cir.) (definition of torture and requirement of acquiescence)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir.) (standard for BIA review of motions to reopen)
- Dada v. Mukasey, 554 U.S. 1 (2008) (motion to reopen based on newly discovered evidence explained)