Marcelo Seixas De Castro v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [15-60796 Affirmed] Judge: RHB, Judge: CH, Judge: SAH. Mandate pull date is 08/10/2017 [15-60796]

Case: 15-60796

Document: 00514038282

Page: 1

Date Filed: 06/19/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60796
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 19, 2017
Lyle W. Cayce
Clerk

MARCELO SEIXAS DE CASTRO,
Petitioner
v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petitions for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 284 401
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Marcelo Seixas de Castro, a native and citizen of Brazil, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissing his appeal of the
Immigration Judge’s (IJ) denying his motion to reopen. De Castro entered the
United States unlawfully in May 2004. He was apprehended at a Houston
checkpoint, and claims no one spoke to him in Portuguese or provided a
translator. After being detained two months, de Castro was removed in August

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
*

Case: 15-60796

Document: 00514038282

Page: 2

Date Filed: 06/19/2017

No. 15-60796
2004.

He re-entered without permission that October.

In 2012, the

Department of Homeland Security (DHS) served him with a notice of intent to
reinstate the 2004 removal order. (De Castro asserts he came to the United
States both times to flee persecution from criminal organizations and corrupt
police officers.)
Upon receipt of DHS’ notice of intent, de Castro filed, inter alia, motions
to reopen his 2004 removal proceedings; the IJ, however, denied his motions
holding, because de Castro reentered illegally after the original removal order,
he had no right to a hearing before the IJ and no right to reopen.

The BIA

affirmed.
Final orders of removal are reviewed under 8 U.S.C. § 1252(a)(1), which
“encompasses review of decisions refusing to reopen or reconsider such orders”.
Mata v. Lynch, 135 S. Ct. 2150, 2154 (2015). A valid reinstatement is a final
order of removal which we also have jurisdiction to review. See Ojeda-Terrazas
v. Ashcroft, 290 F.3d 292, 294–95 (5th Cir. 2002). The denial of a motion to
reopen is reviewed “under a highly deferential abuse-of-discretion standard”.
Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (quoting Zhao
v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005)).
The Immigration and Nationality Act provides that, if “an alien has
reentered the United States illegally after having been removed . . . the prior
order of removal is reinstated from its original date”. 8 U.S.C. § 1231(a)(5).
Once DHS reinstates an order of removal, the original order “is not subject to
being reopened or reviewed, the alien is not eligible and may not apply for any
relief under this chapter, and the alien shall be removed under the prior order
at any time after the reentry”. Id. As discussed supra, De Castro illegally
reentered the United States after removal, and DHS reinstated the original
2004 removal order. De Castro fails to show the BIA abused its discretion in

2

Case: 15-60796

Document: 00514038282

Page: 3

Date Filed: 06/19/2017

No. 15-60796
concluding his motion to reopen was barred by § 1231(a)(5). See Barrios, 772
F.3d at 1021.

Because § 1231(a)(5) likewise bars “any relief” under the

provisions of that chapter, de Castro fails to show the BIA erred in failing to
consider cancellation of removal because he was ineligible for such relief under
the statute. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 489–90 (5th Cir. 2015).
DENIED.

3