Rhynara Duarte v. Jefferson Sessions, III

Case: 15-60768 Document: 00514196318 Page: 1 Date Filed: 10/16/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fif h Circuit No. 15-60768 FILED Summary Calendar October 16, 2017 Lyle W. Cayce Clerk POLYANE SOARES-DE OLIVEIRA DOS SANTOS, Petitioner v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent Cons. w/No. 15-60770 RHYNARA LUIZA DUARTE, Petitioner v. JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL, Respondent Petitions for Review of Orders of the Board of Immigration Appeals BIA No. A200 022 852 BIA No. A202 004 494 Case: 15-60768 Document: 00514196318 Page: 2 Date Filed: 10/16/2017 No. 15-60768 c/w No. 15-60770 Before DAVIS, CLEMENT, and COSTA, Circuit Judges. PER CURIAM: * In this consolidated action, Polyane Soares-De Oliveria Dos Santos and her minor child, Rhynara Luiza Duarte, natives and citizens of Brazil, seek review of the orders of the Board of Immigration Appeals (BIA) dismissing their appeals of an immigration judge’s (IJ) orders of removal and decisions denying asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The petitioners also seek review of the BIA’s decision denying their motion to reopen. We note that Dos Santos was ordered removed under 8 U.S.C. § 1231(a)(5), pursuant to a reinstated order of removal. As such, she was deemed ineligible to apply for asylum, a determination that she unsuccessfully challenged before the BIA. Her argument before this court challenging her eligibility to apply for asylum is likewise unavailing. A panel of this court has held that § 1231(a)(5) bars aliens who, like Dos Santos, illegally reentered the United States after removal and whose removal orders are reinstated from applying for asylum. Ramirez-Mejia v. Lynch, 794 F.3d 485, 489-90 (5th Cir. 2015). Although Dos Santos argues that Ramirez-Mejia was wrongly decided, one panel of this court may not overrule the decision of another panel absent an intervening change in the law by way of statute or an unequivocal decision by this court sitting in banc or the Supreme Court. See United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013). Because the 2006 order of removal against Dos Santos was reinstated pursuant to § 1231(a)(5), the BIA * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2 Case: 15-60768 Document: 00514196318 Page: 3 Date Filed: 10/16/2017 No. 15-60768 c/w No. 15-60770 did not err in determining that Dos Santos was barred from applying for asylum. See Ramirez-Mejia, 794 F.3d at 489-90. Nevertheless, Dos Santos was placed in “withholding only” proceedings. “To be eligible for withholding of removal, an applicant must demonstrate a ‘clear probability’ of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion.” Chen v. Gonzales, 470 F.3d 1131, 1138 (5th Cir. 2006). A clear probability of persecution means that it is “more likely than not” that her life ...

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