Mendoza-Flores v. Rosen

United States Court of Appeals
for the Fifth Circuit

No. 19-60225

Brandon Mendoza-Flores,

Petitioner,

versus

Jeffrey A. Rosen, Acting U.S. Attorney General,

Respondent.

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 287 425

Before Haynes, Higginson, and Oldham, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Brandon Mendoza-Flores, a native and citizen of Mexico, petitions
this court for review of a decision of the Board of Immigration Appeals
(“BIA”) in a withholding-only proceeding. The BIA affirmed denial of his
motions for (1) continuance pending resolution of his T visa application,
(2) withholding of removal under the Immigration and Nationality Act
(“INA”), and (3) deferral of removal under the Convention Against Torture
(“CAT”), and dismissed his appeal. Following the BIA’s decision,
Mendoza-Flores’s T visa application was denied and he was removed to
United States Court of Appeals
Fifth Circuit
FILED
December 29, 2020

Lyle W. Cayce
Clerk
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Mexico. Because this court can no longer grant Mendoza-Flores any effectual
relief, we dismiss his petition as moot.
I.
Mendoza-Flores initially entered the United States in February 2012
while being paid to transport marijuana. U.S. Border Patrol agents
apprehended him, and a removal order was issued. Subsequently, in April
2012, Mendoza-Flores pleaded guilty to possession of marijuana with intent
to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) and was
sentenced to 180 days in prison. He admitted to being paid to transport
approximately 23 kilograms of marijuana. This offense qualifies as an
“aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43). See 8
U.S.C. § 1101(a)(43)(B); 18 U.S.C. § 924(c)(2); 21 U.S.C. §§ 841(a)(1),
(b)(1)(D).
After completing his sentence, Mendoza-Flores was removed to
Mexico in August 2012. He reentered the United States in November 2012
but was stopped by U.S. immigration authorities and voluntarily returned to
Mexico.
He reentered a third time just a few weeks later.
In April 2018, U.S. immigration agents encountered Mendoza-Flores,
detained him, and reinstated the February 2012 expedited removal order.
The reinstatement notice stated that Mendoza-Flores was prohibited from
reentering the United States for life due to his aggravated-felony conviction.
See 8 U.S.C. § 1182(a)(9)(A)(i).
After Mendoza-Flores told immigration officers that he feared
returning to Mexico, an asylum officer determined that Mendoza-Flores had
established a reasonable fear of torture. The Department of Homeland
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Security (“DHS”) referred the case to an immigration judge (“IJ”) for
“withholding-only proceedings.”
Mendoza-Flores’s withholding-only merits hearing was held on
October 3, 2018. At the beginning of the hearing, Mendoza-Flores requested
a continuance pending the resolution of his application for T nonimmigrant
status (“T visa”). His counsel explained that he had filed a T visa application
with the U.S. Citizenship and Immigration Services (“USCIS”) on February
6, 2019, that was still pending. The IJ issued an oral decision on October 18,
2019, denying Mendoza-Flores’s requests for continuance, withholding of
removal under the INA, and deferral of removal under the CAT.
Mendoza-Flores appealed the IJ’s decision to the BIA. On March 22,
2019, the BIA issued a decision affirming the IJ’s reasoning and dismissing
the appeal.
Mendoza-Flores timely petitioned this court for review but did not file
a motion for stay of removal. USCIS subsequently denied Mendoza-Flores’s
T visa application on July 26, 2019, and Mendoza-Flores was removed to
Mexico immediately thereafter.
II.
This court’s jurisdiction requires a live case or controversy at all
stages of litigation. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Inherent in the
case-or-controversy requirement is the doctrine of mootness; federal courts
lack jurisdiction “when it is impossible for a court to grant any effectual relief
whatsoever to the prevailing party.” United States v. Vega, 960 F.3d 669, 672
(5th Cir. 2020) (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S.
298, 307 (2012)). “We review the question of mootness de novo, raising the
issue sua sponte if necessary.” Id. (citation omitted).
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III.
The denial of Mendoza-Flores’s T visa application and his subsequent
removal to Mexico necessitate our consideration of mootness. Mendoza-
Flores’s petition for review is moot if it is impossible for this court to grant
him any effectual relief. Vega, 960 F.3d at 672. In cases challenging a BIA
decision, the petitioner’s removal from the United States generally renders
the petition moot unless the petitioner would suffer collateral legal
consequences from the challenged decision. See Alwan v. Ashcroft, 388 F.3d
507, 511 (5th Cir. 2004) (citing Spencer, 523 U.S. at 8). We have previously
held that a period of inadmissibility following removal is a collateral legal
consequence of the removal decision. See id. (citing Umanzor v. Lambert, 782
F.2d 1299, 1301 (5th Cir. 1986)).
Mendoza-Flores’s petition challenges the BIA’s decision in his
withholding-only proceeding. The legality of his February 2012 removal
order and the April 2018 reinstatement of this removal order is therefore not
before us. In his petition, Mendoza-Flores asks this court to decide that the
BIA erred in denying his motions for continuance pending the resolution of
his T visa application, withholding of removal under the INA, and deferral of
removal under the CAT.
Mendoza-Flores acknowledged in a supplemental letter that his T visa
application “is no longer eligible to be granted.” This necessarily moots his
request for continuance. See Vega, 960 F.3d at 672.
Mendoza-Flores’s subsequent removal to Mexico moots his
remaining two claims unless he can show that he suffers collateral legal
consequences from the BIA’s withholding-only decision. Alwan, 388 F.3d at
511. According to the notice accompanying Mendoza-Flores’s order
reinstating removal, removal rendered him permanently inadmissible to the
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United States due to his aggravated-felony conviction.
1
While inadmissibility
would be a collateral legal consequence of Mendoza-Flores’s removal order,
it is not a collateral consequence of the BIA’s withholding-only decision.
Collateral consequences must stem from the underlying cause of action to
salvage justiciability. See Spencer, 523 U.S. at 14; Kaur v. Holder, 561 F.3d 957,
959 (9th Cir. 2009); Ramirez-Ortez v. Barr, 782 F. App’x 318, 321–22 (5th
Cir. 2019) (per curiam) (unpublished). Even if we decided that the BIA erred
in denying Mendoza-Flores withholding of removal, he would still be subject
to the February 2012 removal order and thus inadmissible to the United
States. See Alwan, 358 F.3d at 511 n.3. In his supplemental letter, Mendoza-
Flores identifies no collateral legal consequence from the denial of
withholding.
Because Mendoza-Flores suffers no collateral legal consequences
from the BIA’s denial of withholding, we are unable to grant Mendoza-Flores
any effectual relief and thus lack jurisdiction to review the BIA’s decision.
IV.
Accordingly, we DISMISS Mendoza-Flores’s petition for review as
moot.

1
We take no position as to whether Mendoza-Flores is, in fact, permanently
inadmissible to the United States due to his removal order. In a supplemental letter to this
court, the Government represents that the reinstatement of Mendoza-Flores’s removal
order rendered him inadmissible to the United States for five years. Either of these
positions may be correct, and this issue is not germane to our resolution of Mendoza-
Flores’s petition.
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