Case Information
*1 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). For the following reasons, we dismiss the petition in part, for lack of jurisdiction, and deny the petition in part.
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 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 notice of the hearing because he failed to provide his address to the immigration court. In November 2010, immigration authorities apprehended Mejia, and he was removed to Honduras on December 28, 2010.
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. Also on October 24, 2014—according to Mejia, before he received notice of the reinstatement of his prior removal order—Mejia filed a motion to reopen his prior removal proceedings in order to apply for asylum, withholding of removal, and protection under CAT. 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 Mejia, 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 reopening pursuant to the immigration court’s authority to reopen sua sponte. 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, a party may 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. 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. His motion to reopen therefore did not comply with the ninety-day statutory deadline.
However, there are a number of exceptions pursuant to which a motion
to reopen that does not meet the statutory deadline may be granted. Three
such exceptions are relevant in the instant case. First, a motion to reopen on
the basis that the alien did not receive proper notice of his initial removal
proceeding can be filed at any time. § 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. § 1229a(c)(7)(C)(ii). “Finally,
the BIA’s regulations provide that, separate and apart from acting on the
alien’s motion, the BIA may reopen removal proceedings ‘on its own motion’—
or, in Latin,
sua sponte
—at any time.”
Mata v. Lynch
,
A
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. 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 conclude, however, that we lack jurisdiction to consider this claim.
“This court must examine the basis of its jurisdiction, on its own motion
if necessary.”
Green Tree Servicing, L.L.C. v. Charles
,
Mejia was removed to Honduras pursuant to his prior removal order in 2010. His claim regarding lack of notice in his prior removal proceedings, presented in his motion to reopen, is essentially a collateral attack on the prior removal order. See Ramirez-Molina , 436 F.3d at 514 (a challenge to an already-executed initial removal order on the grounds that the initial order was invalid is a collateral attack on the initial removal order). As Mejia conceded at oral argument, he did not contest his removability or otherwise challenge his removal order at any time prior to his removal to Honduras. Because he cannot show that he contested his removability in his prior removal proceedings, even after he was apprehended, Mejia cannot establish a gross miscarriage of justice. See id . Accordingly, we lack jurisdiction over Mejia’s collateral challenge to the prior removal order. Id.
B
Mejia contends that the BIA abused its discretion in denying his motion
to reopen because, he claims, conditions in his country of origin had materially
changed. “In determining whether there has been a material change in
country conditions, the BIA compares ‘the evidence of country conditions
submitted with the motion to those that existed at the time of the merits
hearing below.’”
Zhenghao Liu v. Holder
,
Here, the BIA agreed with the IJ that Mejia failed to show changed conditions in Honduras, concluding that Mejia’s new evidence regarding current conditions in Honduras established only a “continuation of essentially the same conditions” of “gang violence, crime, and extortion.” In his petition for review, Mejia contends that his evidence, in fact, shows a “steady increase in both gang-related violence and the Honduran government’s inability or unwillingness to effectively deal with that violence.”
We conclude that we lack jurisdiction over this claim as well. Under 8 U.S.C. § 1231(a)(5):
If the Attorney General finds that an alien has reentered the United States illegally after having been removed . . . 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, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
Section 1231(a)(5) therefore limits this court’s jurisdiction to reopen or review
a reinstated order of removal.
Martinez v. Johnson
,
Mejia contends that § 1231(a)(5) does not apply to his motion to reopen because, according to him, he only received notice of the reinstatement order after he had filed his motion to reopen. Thus, he claims, the reinstatement order “fell second to the motion and does not preclude it.” Mejia also complains that the Government did not argue before the BIA that § 1231(a)(5) applied to his motion, and asserts that, therefore, this court cannot consider it.
These arguments are unavailing. First, § 1231(a)(5) expressly provides
that a prior order of removal is reinstated “from its original date” and “is not
subject to being reopened.” This language leaves no room for Mejia’s argument
that § 1231(a)(5)’s mandate does not apply to reopening proceeding that are
pending at the time of the reinstatement. Second, Mejia’s objection that the
Government did not raise this issue before the BIA is irrelevant, as
§ 1231(a)(5)’s limitations are jurisdictional,
Martinez
,
While the language of § 1231(a)(5) would appear to completely deprive
the courts of jurisdiction to review or reopen reinstated removal orders,
another statutory provision, 8 U.S.C. § 1252(a)(2)(D), preserves this court’s
jurisdiction to review “constitutional claims or questions of law raised in a
petition for review.”
[1]
Martinez
, 740 F.3d at 1042 (citing § 1252(a)(2)(D)).
Mejia’s claim that the BIA did not properly assess his evidence of changed
country conditions in Honduras pertains to a question of fact.
See Zhu v.
Gonzales
, 493 F.3d 588, 595–96 & n.31 (5th Cir. 2007) (this court lacks
jurisdiction to review determinations based on assessment of facts and
circumstances of a particular case, including in the context of changed
conditions);
see also Lemus v. Lynch
, 611 F. App’x 813, 815 (5th Cir. 2015)
(“Whether the BIA improperly weighed or ignored evidence regarding changed-
conditions in El Salvador, or whether the evidence established changed
country conditions, are questions of fact, and do not raise a constitutional or
legal question.”);
Beau-Soleil v. Holder
,
C
Mejia challenges the BIA’s conclusion that he was not eligible for sua
sponte reopening. As Mejia acknowledges, this court lacks jurisdiction to
review the BIA’s discretionary decision not to invoke its sua sponte authority
to reopen a case because there is “no legal standard against which to judge”
that decision.
Enriquez-Alvarado v. Ashcroft
,
D
Mejia makes a number of other claims that cannot, on their own, support reopening. He asserts that the BIA ignored a statement by the IJ that his motion to reopen would be denied as a matter of discretion “even assuming changed country conditions,” and he challenges this statement as based on a legal error. Because, as previously explained, we lack jurisdiction to review the BIA’s determination that Mejia has not established a material change in country conditions, we need not address this claim.
Next, Mejia argues that he has established his eligibility for asylum,
withholding of removal, and protection under CAT. To the extent he maintains
that meritorious claims of eligibility for relief independently entitle him to
reopening beyond the statutory deadline, Mejia cites no authority and provides
no explanation for this proposition. Any such argument is therefore forfeited.
See, e.g.
,
SEC v. Life Partners Holdings, Inc.
,
Finally, Mejia contends that the BIA violated “established motion procedure” when it denied his motion to reopen because, he argues, he established prima facie eligibility for relief. However, to the extent Mejia contends that a prima facie case for relief can serve as an exception to the ninety-day filing deadline for motions to reopen, he provides no support for such a proposition.
III
For the foregoing reasons, the petition is DISMISSED in part and DENIED in part.
Notes
[1] Section 1252(a)(2)(D) provides: Nothing . . . in any . . . provision of this chapter . . . 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.