United States Court of Appeals

for the Fifth Circuit

No. 20-60126

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 BIAissued 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

November 18, 2021

Lyle W. Cayce

Clerk

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2

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 Statesin 2001. Five years later, she lost herstatus 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 

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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 of returning to Nicaragua, she was referred to 

an asylum officer, who determined that she had a reasonable fear of torture. 

DHS referred her case to an IJ for “withholding-only proceedings.”6 BrenesLezama then filed an application for deferral of removal under the CAT.

In August 2019, the IJ denied her relief and ordered reinstatement of 

the 2009 removal order. Brenes-Lezama appealed to the BIA, which upheld 

the IJ’s decision in January 2020. She timely filed the instant petition for 

review in this Court. In March 2020, Brenes-Lezama was removed to 

Nicaragua pursuant to the reinstated order of removal.

II.

“This court’s jurisdiction requires a live case or controversy at all 

stages of litigation.”7 And, “[i]nherent in the case-or-controversy 

requirement is the doctrine of mootness.”8 When it is impossible for us to 

grant a litigant any effectual relief, our court lacks jurisdiction.9 As set forth 

below, we are bound by our recent decision in Mendoza-Flores v. Rosen to 

removal is reinstated from its original date and “is not subject to being reopened or 

reviewed.” Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2282 (2021).

5 See id. at 2282-83.

6 As explained by the Supreme Court, because Brenes-Lezama was subject to 

removal based on a reinstated order of removal, the proceedings are referred to as 

“withholding-only proceedings” because the proceedings are “limited to a determination 

of whether the alien is eligible for withholding or deferral of removal,” and the parties are 

“prohibited from raising or considering any other issues.” Id. at 2283 (citations omitted).

7 Mendoza-Flores v. Rosen, 983 F.3d 845, 847 (citation omitted).

8 Id.

9 Id. (citation omitted).

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dismiss Brenes-Lezama’s petition for review as moot because we are unable 

to grant her any effectual relief.10

In Mendoza-Flores, the petitioner (Mendoza-Flores) pleaded guilty to 

a drug-trafficking crime and, after completing his sentence, was removed to 

Mexico pursuant to a removal order. Mendoza-Flores later reentered the 

United States illegally, was apprehended, and detained by immigration 

agents. After his prior removal order was reinstated, he told immigration 

officials that he feared returning to Mexico. An asylum officer determined 

that he had a reasonable fear of torture, and DHS referred his case to an IJ for 

“withholding-only proceedings.”11

Mendoza-Flores applied for, inter alia, deferral of removal under the 

CAT. After conducting a hearing, the IJ denied his request, and the IJ’s 

denialwas upheld by the BIA. Following the BIA’s decision, Mendoza-Flores 

timely petitioned this Court for review; however, he did not move for a stay 

of removal. Mendoza-Flores subsequently was removed to Mexico pursuant 

to the reinstated removal order. 

Stating that Mendoza-Flores’s removal to Mexico “necessitate[d] our 

consideration of mootness,” this Court noted that Mendoza-Flores’s 

petition for review only “challenge[d] the BIA’s decision in his withholdingonly proceeding” and that “[t]he legality of his [prior] removal order and the 

[] reinstatement of th[e] removal order [was] therefore not before us.”12 This 

10 Although Brenes-Lezama argues that our decision in Mendoza-Flores is contrary 

to the Supreme Court’s decision in Nasrallah v. Barr, 140 S. Ct. 1688 (2020), there was no 

mention that the petitioner in that case had been removed from the United States while his 

petition for review was pending, and the proceedings were not “withholding-only” 

proceedings.

11 Mendoza-Flores, 983 F.3d at 846.

12 Id. at 847.

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Court further determined that “Mendoza-Flores’s subsequent removal to 

Mexico moot[ed]” his claim for deferral of removal under the CAT, “unless 

he [could] show that he suffer[ed] collateral legal consequences from the 

BIA’s withholding-only decision.”13

This Court first noted that “[c]ollateral consequences must stem 

from the underlying cause of action to salvage justiciability.”14 This Court

then determined that even if we decided that the BIA erred in denying 

Mendoza-Flores’s requests for withholding and/or deferral of removal, “he 

would still be subject to the [prior] removal order and thus inadmissible to 

the United States.”15 In other words, while inadmissibility would be a 

collateral legal consequence of a removal order, “it is not a collateral 

consequence of the BIA’s withholding-only decision.”16 Because MendozaFlores suffered no collateral legal consequences from the BIA’s denial of 

withholding and deferral of removal, we held that “we [we]re unable to grant 

Mendoza-Flores any effectual relief and thus lack[ed] jurisdiction to review 

the BIA’s decision.”17

Our decision in Mendoza-Flores is directly applicable here. Like 

Mendoza-Flores, Brenes-Lezama seeks review of the BIA’s decision denying 

her deferral of removal in a withholding-only proceeding. The legality of the 

2011 removal order and the 2018 reinstatement of that removal order is not 

before us; Brenes-Lezama did not move for a stay of removal; and she has 

been removed to Nicaragua. Even if we determined that the BIA erred in 

13 Id. (citation omitted).

14 Id. at 848 (citations omitted).

15 Id. (citation omitted).

16 Id. at 847-48.

17 Id. at 848.

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denying her deferral of removal, Brenes-Lezama is still subject to the 2011 

removal order and thus inadmissible to the United States. Because BrenesLezama suffers no collateral legal consequences from the BIA’s denial of her 

request for deferral of removal, we are unable to grant her any effectual relief. 

Consequently, we lack jurisdiction over this matter.

III.

Based on the foregoing, we DISMISS Brenes-Lezama’s petition for 

review for lack of jurisdiction as moot.

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