Marcelo Seixas De Castro v. Jefferson Sessions, II
690 F. App'x 875
| 5th Cir. | 2017Background
- Petitioner Marcelo Seixas de Castro, a Brazilian national, entered the U.S. unlawfully in May 2004, was detained and removed in August 2004, and reentered without permission in October 2004.
- De Castro claims he fled persecution by criminal organizations and corrupt police and that he did not receive Portuguese translation when apprehended in 2004.
- In 2012 DHS issued a notice to reinstate the 2004 removal order based on his unlawful reentry and reinstated that prior order under 8 U.S.C. § 1231(a)(5).
- De Castro filed motions to reopen the 2004 removal proceedings and sought consideration of relief (including cancellation of removal); the Immigration Judge denied reopening and the BIA affirmed.
- The IJ and BIA held that reinstatement under § 1231(a)(5) bars reopening and renders the alien ineligible for relief under the immigration chapter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reinstatement under 8 U.S.C. § 1231(a)(5) bars reopening previously entered removal orders | De Castro argued he should be allowed to reopen and present asylum/persecution claims despite prior removal and reentry | DHS/BIA argued § 1231(a)(5) reinstatement forbids reopening or review of the prior removal order after illegal reentry | Held: Reinstatement under § 1231(a)(5) bars reopening; BIA did not abuse discretion in denying motion to reopen |
| Whether BIA was required to consider cancellation of removal or other relief after reinstatement | De Castro contended the BIA should consider relief such as cancellation despite reinstatement | DHS/BIA argued § 1231(a)(5) bars "any relief" under the chapter, making him ineligible | Held: § 1231(a)(5) bars any relief; BIA correctly declined to consider cancellation of removal |
Key Cases Cited
- Mata v. Lynch, 135 S. Ct. 2150 (review of decisions refusing to reopen or reconsider final removal orders falls within § 1252(a)(1))
- Ojeda-Terrazas v. Ashcroft, 290 F.3d 292 (5th Cir. 2002) (valid reinstatement is a final order of removal subject to review)
- Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014) (denial of a motion to reopen reviewed for abuse of discretion)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (abuse-of-discretion standard for reopening)
- Ramirez-Mejia v. Lynch, 794 F.3d 485 (5th Cir. 2015) (§ 1231(a)(5) bars eligibility for relief under the immigration chapter)