440 F. App'x 295
5th Cir.2011Background
- Cortez-Vasquez petitions for review of the BIA’s denial of his second motion to reopen removal proceedings after an in absentia removal order under INA § 240(b)(5).
- He claims lack of notice of the removal hearing and inadequate advisement about address requirements violated due process because he was 17.
- He contends the BIA erred in considering asylum evidence and whether TVPRA applies to him as a child.
- The court reviews the BIA’s denial for abuse of discretion and upholds it if not capricious or irrational.
- The court addresses (i) numerical limits on second motions to reopen, (ii) notice and due process, (iii) evidence and changed country conditions for asylum, and (iv) TVPRA applicability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the second motion to reopen was improperly denied under numerical limits | Cortez-Vasquez argues he was not barred by numerical limits due to lack of notice | BIA insists strict numerical limits apply regardless of notice and are not tollable | Denial affirmed; he was numerically barred. |
| Whether lack of notice violated due process given his age | Cortez-Vasquez asserts entitlement to hearing notice as a seventeen-year-old | Record shows service complied with law; no due process violation | Not entitled to actual notice; no due process violation based on age. |
| Whether evidence and changed country conditions support reopening for asylum | Evidence overlooked; changed conditions show prima facie asylum eligibility | No material change proven; no prima facie eligibility demonstrated | Motion properly denied for lack of changed conditions and prima facie eligibility. |
| Whether TVPRA applies to Cortez-Vasquez as an unaccompanied minor | TVPRA should apply due to minor status | Not an unaccompanied minor; he had family and was 18 when applying | TVPRA inapplicable. |
Key Cases Cited
- Ramos-Bonilla v. Mukasey, 543 F.3d 216 (5th Cir. 2008) (no tolling of numerical limitations for ineffective assistance.)
- Lopez-Dubon v. Holder, 609 F.3d 642 (5th Cir. 2010) (due process and service considerations for notices.)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (absence of proper notice affects issuance of relief.)
- In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007) (principles for evaluating asylum evidence and material changes.)
- Tesfamichael v. Gonzales, 469 F.3d 109 (5th Cir. 2006) (prima facie case for asylum guidance.)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (highly deferential abuse-of-discretion standard.)
- Singh v. Gonzales, 436 F.3d 484 (5th Cir. 2006) (rational basis standard for BIA decisions.)
- Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993) (requirements to show prima facie eligibility for relief.)