     Case: 16-60179   Document: 00514334013     Page: 1    Date Filed: 02/02/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                 No. 16-60179                          February 2, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
JOSE SANTOS MEJIA, also known as Jose Santos Zavala-Mejia,

             Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

             Respondent




                      Petition for Review of an Order of
                      the Board of Immigration Appeals


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
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                                No. 16-60179
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.
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                                  No. 16-60179
                                        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, 135 S. Ct. 2150, 2153
(2015) (quoting 8 C.F.R § 1003.2(a)). Mejia contends that the BIA should have
granted reopening on all three grounds.
                                        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


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                                  No. 16-60179
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, 872 F.3d 637, 639 (5th
Cir. 2017) (citing Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000)).
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). “Though this court has announced
no precise standard for what constitutes a gross miscarriage of justice, we have
held that there is no gross miscarriage where the petitioner failed to contest
his removability in prior proceedings.” Martinez v. Johnson, 740 F.3d 1040,
1042 (5th Cir. 2014) (citing Ramirez-Molina, 436 F.3d at 514–15).
      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.




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                                 No. 16-60179
                                       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, 457 F. App’x 446, 447 (5th Cir. 2012)
(quoting In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007)).
      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, 740 F.3d 1040, 1042 (5th
Cir. 2014).
      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
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                                       No. 16-60179
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, 740 F.3d at 1042, and we
are required to adhere to them regardless of the parties’ arguments before the
BIA or before us.
      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)



      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.
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                                 No. 16-60179
(“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, 548 F. App’x 161, 162 (5th Cir. 2013)
(“[W]hether conditions in a country have changed and the examination of those
conditions present issues of fact outside of our jurisdiction.”). Thus, we lack
jurisdiction to consider this claim by Mejia. See § 1231(a)(5); § 1252(a)(2)(D);
Zhu, 493 F.3d at 595–96.
                                       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, 371 F.3d 246, 250 (5th Cir. 2004).
Mejia argues, however, that the BIA deprived him of due process by
mischaracterizing the facts of the case and disregarding his claims. Because
Mejia raises a constitutional claim, for which there is a governing legal
standard, this court has jurisdiction to consider it. Cf. id. Mejia’s contention
that the BIA violated his due process rights is unavailing, however, as this
court has held that an alien has no liberty interest in a motion to reopen and
therefore cannot establish a due process violation in the context of reopening
proceedings. See Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550–51 (5th Cir.
2006).
                                       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
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                                 No. 16-60179
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., 854 F.3d 765, 784 (5th Cir. 2017)
(deeming a party’s challenge forfeited for inadequate briefing).
      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.




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