Introduction

The Fifth Circuit recently found that the Board of Immigration Appeals (BIA) failed to address and interpret provisions of the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) relating to the placement of unaccompanied minors in full INA § 240 removal proceedings. Velasquez-Castillo v. Garland, 91 F.4th 358 (5th Cir. 2024). In particular, the court considered cases where unaccompanied minors re-enter the United States without inspection following an executed removal order. Such re-entries subject adult entrants to reinstatement of removal under INA § 241(a)(5) and preclude them from full removal proceedings under INA § 240. In considering whether the BIA had adequately addressed the issue, the Fifth Circuit suggested that the Department of Homeland Security (DHS) cannot simply reinstate prior removal orders against unaccompanied minors and remove them from the United States; rather, unaccompanied minors must be placed in INA § 240 proceedings in accordance with the TVPRA.¹

Summary of Facts and Procedural History

Velasquez-Castillo first entered the United States with his mother in 2019, was placed with her in removal proceedings, and ordered removed in January 2020 after their applications for relief were denied by the immigration judge (IJ). Velasquez-Castillo presumably left the United States, because he returned to the border alone in March 2020 when he was 17 years old.² He was designated an unaccompanied minor and transferred to the custody of the Office of Refugee Resettlement. He subsequently filed an asylum application with the United States Citizenship and Immigration Services (USCIS) and filed a motion to reopen his removal proceedings. In his motion, Velasquez-Castillo argued that his impending removal would violate the TVPRA.

Despite the pending motion to reopen, DHS removed Velasquez-Castillo from the United States, executing the IJ’s removal order from earlier that year. The IJ subsequently denied his motion to reopen. Velasquez-Castillo appealed the motion, arguing that DHS violated his due process rights by not placing him in removal proceedings under the TVPRA. The BIA adopted and upheld the IJ’s decision. Velasquez-Castillo then simultaneously submitted a petition for review of the BIA’s decision to the Fifth Circuit and a motion to reconsider the BIA.

In his motion to reconsider, he argued that the BIA had failed to address his argument regarding the requirement to reopen his proceedings under the TVPRA. The BIA denied that motion, finding that: (1) neither the BIA nor an IJ had “the authority to order DHS to place an individual in removal or reinstatement proceedings”; (2) the proceedings followed Velasquez-Castillo’s re-entry with an outstanding final order of removal; (3) Velasquez-Castillo’s arguments related to DHS’s prosecutorial discretion whether to initiate full or expedited removal proceedings; and (4) Velasquez-Castillo was no longer an unaccompanied minor and so the relief he sought was not viable. After Velasquez-Castillo submitted a petition for review of this subsequent denial by the BIA, the Fifth Circuit consolidated and considered both denials.³

Fifth Circuit Analysis and Holding

The Fifth Circuit first disagreed with the BIA’s finding that, due to his aging out, Velasquez-Castillo’s relief sought was no longer viable, i.e., the case was moot. The Fifth Circuit pointed out that Velazquez-Castillo met TVPRA requirements when he filed his asylum application, which was still pending. The court posited that “[a]pplication 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.” Velasquez-Castillo at 362. Therefore, the case was not moot.

The Fifth Circuit next disagreed with the BIA’s findings that the BIA did not have jurisdiction to consider Velasquez-Castillo’s TVPRA arguments because: (1) DHS failed to initiate removal proceedings; (2) the IJ and BIA could not initiate removal proceedings; and (3) Velasquez-Castillo was no longer an unaccompanied minor. The Fifth Circuit said the BIA neglected to consider all relevant statutory provisions governing motions to reopen as required; it failed to address the TVPRA. Most notably, the Fifth Circuit suggested that the TVPRA indeed mandates placement in INA § 240 proceedings of any unaccompanied minors “sought to be removed by” DHS by focusing on the statute’s use of the word “shall.” The court wrote that “shall … usually connotes a requirement,” which in the context of this TVPRA provision, suggests that it must apply “without exception.” Velasquez-Castillo at 363, fn. 3.⁴ Because the BIA failed to consider these arguments, the Fifth Circuit remanded the case for the BIA to do so.

Conclusion

CLINIC receives many questions from practitioners regarding unaccompanied minors with complex immigration histories. Some advocates representing clients with re-entries after prior removal orders have received Notices of Intent to Deny from USCIS in the adjustment context, including SIJS adjustment, stating that their clients do not qualify for adjustment under INA § 245(a) pursuant to INA § 241(a)(5). There has been little guidance from the BIA or the circuit courts on whether the TVPRA’s mandate that unaccompanied minors must be placed in INA § 240 proceedings upon apprehension renders them practically exempt from the provisions governing reinstatement of removal or ineligibility for relief at INA § 241(a)(5). While this Fifth Circuit decision is not a decisive answer to these questions, it is a promising indication that at least one circuit believes the TVPRA disallows DHS from reinstating final removal orders against unaccompanied minors. Advocates should continue to follow this case and look for updates from CLINIC in the future. Hopefully, the BIA will issue a clear decision finding that unaccompanied minors are not subject to reinstatement or ineligible for relief under the INA and must instead be afforded full INA § 240 proceedings regardless of their immigration history and prior removal orders. In the meantime, practitioners should point to Velasquez-Castillo and its language on this issue as influential should reinstatement be an issue in any of their unaccompanied minor clients’ cases.

¹ Velasquez-Castillo also argued that the BIA failed to consider newly-available evidence relevant to his eligibility for asylum, withholding, and CAT relief. The Fifth Circuit ultimately agreed and remanded in part on that ground. That portion of the decision is not discussed in this article.

² The court does not specify what happened after the final entry of the removal order, but because Velasquez-Castillo and his mother were part of the Migrant Protection Protocols, they were likely already abroad in Mexico when the order became final.

³ Both DHS and Velasquez-Castillo sought the case to be remanded to the BIA, but the Fifth Circuit denied that motion.

⁴ 8 USC § 1232(a)(5)(D) states: “[a]ny unaccompanied child sought to be removed by [DHS] . . . shall be placed in removal proceedings under section 240 of the [INA].”