United States Court of Appeals

for the Fifth Circuit

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No. 21-60681

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Kelmi Yarel Velasquez-Castillo, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

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Appeal from the Board of Immigration Appeals

Agency No. A213 287 757

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Before Wiener, Graves, and Douglas, Circuit Judges.

James E. Graves, Jr., Circuit Judge:

Kelmi Velasquez-Castillo, a native and citizen of Honduras, filed a 

petition for review of a Board of Immigration Appeals(“BIA”) order denying 

a motion to reopen his removal proceedings. The Petitioner and Respondent 

agree that this Court should vacate and remand. We conclude that this case 

is not moot, that the BIA erred in denying the motion to reopen without

resolving the issue of the statutory provisions relating to an unaccompanied 

minor, and that the BIA failed to consider whether there was new and 

previously unavailable evidence in support of asylum eligibility. Accordingly, 

we VACATE the BIA’s decision and REMAND.

United States Court of Appeals

Fifth Circuit

FILED

January 17, 2024

Lyle W. Cayce

Clerk

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Background

Kelmi Yarel Velasquez-Castillo, born in October 2002, left Honduras 

with his mother and arrived at the Texas border around July 16, 2019. The 

mother and son were subsequently placed into removal proceedings under 

the Migrant Protection Protocols (“MPP”). On January 28, 2020, after 

Velasquez-Castillo and his mother admitted removability, an Immigration 

Judge (“IJ”) (1) ordered them removed, (2) denied their application for 

asylum, and (3) denied their application to withhold removal under the 

Convention Against Torture (“CAT”). Neither Velasquez-Castillo nor his 

mother sought further review of the IJ’s decision, which became final on 

February 27, 2020. 

On March 7, 2020, Velasquez-Castillo, then-seventeen years old, returned to the United States-Mexico border alone. As a result, immigration 

officials categorized him as an unaccompanied minor (“UC”)1 and transferred him to the Office of Refugee Resettlement. 

On April 24, 2020, Velasquez-Castillo, with the assistance of pro bono 

counsel, submitted an asylum application to the United States Citizenship 

and Immigration Services (“USCIS”). He additionally filed a motion to reopen, arguing that his impending removal would violate the Trafficking Victims Protection Reauthorization Act (“TVPRA”) and that newly available 

evidence regarding his sexual orientation was relevant to his eligibility for 

asylum, withholding, and CAT relief.2 However, three days later, on April 

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1 The Immigration and Nationality Act defines a “UC” as a child who is not a 

citizen, is under eighteen years old, does not have legal status, and does not have a parent 

or guardian to take care of them in the United States. See 6 U.S.C. § 279(g).

2 Velasquez-Castillo’s written declaration supporting his motion to reopen 

outlined his experiences with bullying and harassment in school, his awareness of his sexual 

orientation at the age of eleven, his attempts to suppress his instincts, his fear of disclosing 

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27, 2020, the Department of Homeland Security (“DHS”) executed the IJ’s 

Order from January 28, 2020, and removed Velasquez-Castillo to Honduras. 

On August 25, 2020, the IJ denied Velasquez-Castillo’s motion to reopen. The IJ determined that Velasquez-Castillo “failed to demonstrate that 

the new evidence, his sexual orientation, was not available and could not have 

been discovered or presented at the former hearing.” Accordingly, the IJ held 

that he did not meet the heavy burden required to reopen his removal proceedings. 

On September 3, 2020, Velasquez-Castillo filed a timely notice of appeal with the BIA arguing that (1) DHS’s failure to place him in TVPRA removal proceedings was a due process violation that foreclosed his right to 

seek asylum, and (2) his disclosure of his sexual orientation upon the second 

entry was new material evidence that warranted reopening. On July 29, 2021, 

the BIA adopted and upheld the decision made by the IJ. Consequently, Velasquez-Castillo submitted a petition for review of the BIA’s order in this 

Court. 

While the petition was under review in this Court, Velasquez-Castillo 

submitted a motion to reconsider to the BIA, arguing that the BIA failed to 

address his argument regarding the requirement to reopen his MPP removal 

proceedings under TVPRA. On June 15, 2022, the BIA denied the motion for 

the following reasons: (1) neither the BIA nor an IJ had “the authority to order DHS to place an individual in removal or reinstatement proceedings”;

(2) these proceedings took place following Velasquez-Castillo’s March 2020 

reentry, when he had an outstanding final order of removal; (3) VelasquezCastillo’s arguments “relate[d] to the initiation of new removal hearings or 

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this personal information to his mother, and his ongoing struggles with self-acceptance as 

a gay person during the January 2020 merits hearing.

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expedited removal proceedings,” and thus implicated prosecutorial discretion. DHS had failed to submit charging documents concerning the March 

2020 entry; (4) Velasquez-Castillo was no longer considered an UC as defined in the TVPRA, as he was over the age of eighteen at the time of the July 

2021 decision. For these reasons, the BIA determined that the remedy Velasquez-Castillo sought was no longer viable. 

Velasquez-Castillo subsequently filed another timely petition for review in this Court, which we consolidated with the existing petition. After 

Velasquez submitted his opening brief, the parties filed a joint motion to remand on January 31, 2022. On March 29, 2022, this Court denied the parties’ 

joint motion to remand and ordered that briefing resume. 

Standard of Review

When evaluating a denial of a motion to reopen or motion for reconsideration, this Court reviews the BIA’s order and evaluates the IJ’s underlying decision if it influenced the BIA’s opinion. Nunez v. Sessions, 882 F.3d 

499, 505 (5th Cir. 2018); Chen v. Holder, Jr., 598 Fed. App’x. 275, 276 (5th 

Cir.2015). The BIA’s denial of a motion for reconsideration or a motion to 

reopen will be upheld unless it is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary 

rather than the result of any perceptible rational approach.” Lowe v. Sessions, 

872 F.3d 713, 715 (5th Cir. 2017)(citation omitted). This Court reviews the 

BIA’s factual findings for substantial evidence and the legal conclusions underlying the decision de novo. Fuentes-Pena v. Barr, 917 F.3d 827, 829 (5th 

Cir. 2019).

Analysis

On appeal, Velasquez-Castillo contends that his status as an UC 

required the DHS and IJ to place him in TVPRA proceedings. The 

government does not rebut this argument. Instead, it agrees that remand is 

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appropriate because the BIA has not yet substantively considered and 

resolved Velasquez-Castillo’s TVPRA arguments. Velasquez-Castillo argues 

that the BIA erred in denying his motion to reopen and motion for 

reconsideration. After considering mootness, we address each of these 

arguments in turn.

A. Mootness

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

stages of litigation. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). Inherent in the 

case-or-controversy requirement is the doctrine of mootness; federal courts 

lack jurisdiction “when it is impossible for a court to grant any effectual relief 

whatever to the prevailing party.” United States v. Vega, 960 F.3d 669, 672 

(5th Cir. 2020) (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 

298, 307 (2012)). “We review the question of mootness de novo, raising the 

issue sua sponte if necessary.” Id. (citation omitted).

Here, Velasquez-Castillo asserts an actual injury that can be

sufficiently redressed by the relief he seeks from this Court. VelasquezCastillo met the requirements of the TVPRA when he filed his subsequent 

asylum claim, which is still pending. Application of the TVPRA to this case

would invalidate the existing removal order and provide an alternative 

pathway for Velasquez-Castillo to pursue his asylum claim. See 8 U.S.C. 

§ 1232(a)(5)(D). Accordingly, the case is not moot.

B. TVPRA

Next, the parties agree that the case should be remanded for further 

consideration because the BIA’s decision does not directly address

Velasquez-Castillo’s argument for reopening under the TVPRA. The BIA 

determined that it did not have jurisdiction to consider Velasquez-Castillo’s

TVPRA arguments because (1) DHS did not initiate new removal 

proceedings, (2) the IJ and the BIA lacked jurisdiction to place an individual 

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in removal proceedings, and (3) he was no longer eligible to be considered an 

UC. We disagree and remand. 

It is well-settled that the BIA determines whether reopening was 

justified in light of relevant statutory and regulatory provisions governing 

motions to reopen, such as the TVPRA. See, e.g., Singh v. Gonzales, 436 F.3d 

484, 487 (5th Cir. 2006). And this Court must apply the principles of Chevron

deference when reviewing BIA orders that interpret immigration laws. 

Scialabba v. Cuellar de Osorio, 573 U.S. 41, 56-57 (2014) (citing Chevron 

U.S.A. Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984)). In 

the case at bar, the BIA neglected to consider the merits of VelasquezCastillo’s argument for reopening.

The TVPRA provides that “[a]ny unaccompanied [noncitizen] child 

sought to be removed by the Department of Homeland Security . . . shall be 

placed in removal proceedings under section 240 of the Immigration and 

Nationality Act (8 U.S.C. 1229a).”3 8 U.S.C. § 1232(a)(5)(D). Indeed, this 

Court has referred to TVPRA proceedings as “mandatory.” Sanchez v. 

R.G.L., 761 F.3d 495, 500 (5th Cir. 2014) (“Because the children were 

declared by DHS to be ‘unaccompanied alien children’, they entered 

mandatory removal proceedings.”). 

While this Court generally defers to an agency’s decision, this 

presumption does not apply when the agency’s decision is not based on its 

interpretation of a statute. Singh, 436 F.3d at 487. Accordingly, because the 

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3 “[T]he word ‘shall’ usually connotes a requirement.” Maine Cmty. Health 

Options v. United States, 140 S.Ct. 1308, 1320 (2020). That connotation is particularly apt

here, as it follows the phrase “any, unaccompanied [noncitizen] children,” which would 

suggest that the condition applies without exception. 8 U.S.C § 1232(a)(5)(D). “Any” is 

defined as “one or some indiscriminately of whatever kind.” Any, Merriam–Webster, 

http://www.merriam-webster.com/dictionary/any (last visited January 9, 2024). 

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BIA’s opinion does not address the possible application of the TVPRA, we 

send the case back to the BIA for an initial determination. See Lugo-Resendez 

v. Lynch, 831 F.3d 337, 343 (5th Cir. 2016) (“We thus conclude that the BIA 

abused its discretion by ignoring Lugo-Resendez’s equitable tolling 

argument.”). On remand, the BIA should consider whether the TVPRA can 

be a remedy for Velasquez-Castillo.

C. Denial of Motions 

Lastly, Velasquez-Castillo seeks review of the BIA’s decision to deny 

his motion to reopen his removal proceedings and motion to reconsider in 

light of newly available evidence regarding his sexual orientation. While this 

Court reviews both motions under a “highly deferential abuse-of-discretion 

standard,” Zhao, 404 F.3d at 303, it reviews constitutional challenges de 

novo. Soadjede v. Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003); see also Chen v. 

Holder, Jr., 598 F. App’x. 275, 276 (5th Cir.2015) (stating that the court 

applies the same standard for both motions). 

A motion to reopen must “state the new facts that will be proven at a 

hearing to be held if the motion is granted, and shall be supported by affidavits 

or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). The BIA cannot 

grant motions to reopen unless “the evidence sought to be offered is material 

and was not available and could not have been discovered or presented at the 

former hearing.” See also 8 C.F.R. § 1003.2(c)(1). Similarly, a motion for 

reconsideration of a prior BIA decision may be made to obtain a re-evaluation 

of record evidence in light of “a change in the law, a misapplication of the 

law, or an aspect of the case that the BIA overlooked.” Zhao, 404 F.3d at 301; 

8 C.F.R. § 1003.2(b)(1). 

It is unclear whether the BIA sufficiently considered the evidence 

regarding Velasquez-Castillo’s sexual orientation and his experiences with 

threats of violence in Honduras. Specifically, while his motion to reopen was 

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pending, Velasquez-Castillo filed a motion requesting an “urgent ruling” and 

attached additional evidence about sexual-orientation-based threats and 

country violence. The IJ and the Board failed to address whether this new 

evidence was previously unavailable and material to eligibility for relief.

Upon remand, the BIA will address whether the TVPRA applies in 

this case. In doing so, it should consider whether the evidence submitted by 

Velasquez-Castillo—in his motion to reopen, his motion for reconsideration, 

and his motion for an urgent ruling—meets the requirements of 8 C.F.R. §

1003.2.

Conclusion

In conclusion, because the BIA failed to address and interpret relevant 

provisions of the TVPRA, we VACATE the BIA’s decision and REMAND 

for the BIA to do so in the first instance.

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