Case: 20-60126 Document: 00516098738 Page: 1 Date Filed: 11/18/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 18, 2021 No. 20-60126 Lyle W. Cayce Clerk Hilda Rosa Brenes-Lezama, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals No. A029-538-140 Before Davis, Haynes, and Oldham, Circuit Judges. W. Eugene Davis, Circuit Judge: * Hilda Rosa Brenes-Lezama, a native and citizen of Nicaragua, petitions this Court for review of an order by the Board of Immigration Appeals (“BIA”), upholding the Immigration Judge’s denial of her application for deferral of removal under the Convention Against Torture (“CAT”). Approximately six weeks after the BIA issued its decision, Brenes- * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-60126 Document: 00516098738 Page: 2 Date Filed: 11/18/2021 No. 20-60126 Lezama was removed to Nicaragua. Because, according to binding precedent, we can no longer grant Brenes-Lezama any effectual relief, we DISMISS her petition for review as moot. I. Brenes-Lezama was granted lawful permanent resident status in the United States in 2001. Five years later, she lost her status after pleading guilty in 2006 to using a telephone to facilitate a drug-trafficking crime in violation of 18 U.S.C. § 843(b). She was later placed in removal proceedings. 1 Although her conviction rendered her ineligible for asylum and withholding of removal, Brenes-Lezama remained eligible for deferral of removal under the CAT. 2 Her application for such relief, however, was denied by the Immigration Judge (“IJ”), who ordered her removal to Nicaragua in December 2009. The BIA upheld the IJ’s decision, and the Ninth Circuit denied Brenes-Lezama’s subsequent petition for review. 3 Pursuant to the removal order, Brenes-Lezama was deported to Nicaragua in 2010, but she reentered the United States illegally in 2011. She was apprehended by immigration officials, pleaded guilty to illegal reentry two months later, and was sentenced to time served. The Department of Homeland Security (“DHS”) then reinstated her 2009 removal order. 4 1 See Lezama v. Holder, 565 F. App’x 618, 619 (9th Cir. 2014). 2 Id. As explained by the Ninth Circuit, a violation of § 843(b) of the Controlled Substances Act “is categorically an aggravated felony,” which made Brenes-Lezama ineligible for asylum, and “[i]t is also presumptively a ‘particularly serious crime,’ which [made her] ineligible for withholding of removal unless she rebut[ted] the presumption.” Id. (citations omitted). 3 Id. 4 Importantly, under 8 U.S.C. § 1231(a)(5), when an alien has reentered the United States illegally after having been removed under an order of removal, the prior order of 2 Case: 20-60126 Document: 00516098738 Page: 3 Date Filed: 11/18/2021 No. 20-60126 Because Brenes-Lezama was subject to a reinstated order of removal, no removal proceedings were initiated upon completion of her sentence. 5 But because she expressed a fear …
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