The Fifth Circuit has severely limited the ability of a petitioner to collaterally attack a reinstated removal order through a petition for review of the reinstated order. “In sum, if an alien illegally re-enters the United States and his prior removal order is reinstated, then, pursuant to the jurisdiction-stripping provision in § 1231(a)(5), the underlying removal order cannot be reviewed, except through the savings provision in § 1252(a)(2)(D). In order to preserve our jurisdiction under § 1252(a)(2)(D)’s savings provision, an alien must file a petition for review within 30 days of the removal order as required by § 1252(b)(1), in addition to exhausting all available administrative remedies and demonstrating that the initial proceedings constituted a gross miscarriage of justice.”
This case involved an in absentia order, which cannot be appealed to the Board of Immigration Appeals or to a circuit court, but can only be reopened through a motion to reopen. Thus, this decision essentially prevents any collateral attacks on in absentia removal orders that have been reinstated by the Department of Homeland Security.
The full text of Luna Garcia de Garcia v. Barr can be found here: