           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                     FILED
                                                                                October 28, 2015
                                        No. 14-60183
                                                                                  Lyle W. Cayce
                                                                                       Clerk
RAMIRO CONSTANTINO TULA RUBIO, also known as Ramiro Tula,

                                                    Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                    Respondent


                         Petition for Review of an Order of the
                            Board of Immigration Appeals
                                 BIA No. A 077 669 229


Before STEWART, Chief Judge, HAYNES, Circuit Judge, and BROWN,
District Judge. *


ORDER:

      A member of the court in active service having requested a poll on the
reconsideration of this cause en banc, and a majority of the judges in active
service and not disqualified not having voted in favor (Fed. R. App. P. 35 and
5th Cir. R. 35), rehearing en banc is DENIED.

      In the en banc poll, 5 judges voted in favor of rehearing (Judges Jones,
Smith, Clement, Owen, and Elrod), and 10 judges voted against rehearing



      *   District Judge for the Eastern District of Louisiana, sitting by designation.
                              No. 14-60183

(Chief Judge Stewart and Judges Jolly, Davis, Dennis, Prado, Southwick,
Haynes, Graves, Higginson, and Costa).


     ENTERED FOR THE COURT:


     /s/ Catharina Haynes
     _____________________________
     CATHARINA HAYNES
     United States Circuit Judge




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JONES, Circuit Judge, joined by SMITH, CLEMENT and OWEN, Circuit
Judges, dissenting from Denial of Rehearing En Banc

       I respectfully dissent from the denial of rehearing en banc. The panel
here interpreted the Immigration and Naturalization Act’s important
provision for cancellation of removal, 8 U.S.C. § 1229b(a), in a way that is
contrary to the Supreme Court, contrary to the BIA’s interpretations, contrary
to case law, and contrary to major immigration treatises.                   The panel’s
interpretation deprives the statutory phrase “in any status” of meaning.
Moreover, by allowing this provision to cover aliens who were mistakenly
admitted without legal status, the panel renders § 1229b(a) far broader than
Congress intended. For whatever reason, the government has not sought en
banc rehearing.        However, the panel’s statutory misinterpretation is
sufficiently significant that we should have corrected it.
                                      BACKGROUND
      Petitioner Tula-Rubio was waved through the Laredo border checkpoint
in 1992 as a four-year-old asleep in the back of a car.                 He became an
undocumented alien who could have been deported at any time from his initial
entry until he was granted lawful permanent resident status (“LPR”) under
the immigration law ten years later. After being convicted of deportable crimes
and charged with inadmissibility, 1 which he conceded, he sought cancellation
of removal before an immigration judge. He had the burden to prove, inter
alia, that he had resided continuously in the United States for seven years




      1  The panel opinion refers to Tula-Rubio as being “charged with removability.” That
is incorrect. He was charged with inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I)-(II)
because the law treats undocumented aliens in the country as if they are being scrutinized
at the border.
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after having been “admitted in any status.” 8 U.S.C. § 1229b(a)(2). 2 Ramos-
Torres v. Holder, 637 F.3d 544, 548 (5th Cir. 2011). Both the immigration judge
(“IJ”) and the Board of Immigration Appeals (“BIA”) determined that while a
mistaken wave through qualified as being “admitted” into the United States,
he was admitted without “status” and therefore failed to meet this requirement
of Section 1229b(a)(2). 3
       The panel decision, reversing the BIA, holds that “any status” means
simply “admitted,” and that an erroneously permitted entry of an illegal alien
confers sufficient “status” to make the alien later eligible for cancellation of
removal.
       The panel agrees with the BIA that the Immigration and Nationality Act
(“INA”) defines “admitted” as a lawful entrance, 8 U.S.C. § 1101(a)(13)(A), and
that BIA precedent defines “lawful” for admission purposes as procedurally
lawful rather than substantively lawful. Matter of Quilantan, 25 I. & N. Dec.
285, 290 (BIA 2010). Therefore, even if an alien has no legal basis to enter the
country, the alien is lawfully “admitted” so long as he presents himself for
inspection. Id.


       2 8 U.S.C. § 1229b(a) authorizes the Attorney General to cancel removal of an alien
who is inadmissible or deportable from the United States if the alien:
       (1) has been an alien lawfully admitted for permanent residence for not less than 5
           years.
       (2) has resided in the United States continuously for 7 years after having been
           admitted in any status, and
       (3) has not been convicted of any aggravated felony.

Ibid. The parties agree that Tula-Rubio meets the first and third requirements.

       3 The immigration judge explained that “‘[s]tatus’ is a term of art which is commonly
used in Immigration Courts and Immigration proceedings throughout the United States. As
the BIA noted in Matter of Blancas-Lara., 23 I&N Dec. 458 (BIA 2002), the term status
denotes someone who possesses a certain legal standing, such as an immigrant or
nonimmigrant. This Court does not believe that the word status includes those who have no
status or legal right to enter or remain in the United States. This Court further believes that
a person who is present in the United States without permission cannot be considered a
nonimmigrant.” ROA.052 (emphasis added).
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       Construing the phrase “in any status” de novo, 4 however, the panel
overrules the BIA and holds that “status” includes all aliens, whether
immigrants, nonimmigrants, or undocumented aliens.                    The panel opinion
consults the dictionary for the broad definitions of the word “any” (meaning
“all of the type to which it refers”) and “status” (meaning “all states or
conditions, of whatever kind, that an alien may possess under the immigration
laws”). The panel then cites the BIA decision In re Blancas-Lara, 23 I. & N.
Dec. 458 (BIA 2002) as being “along the same lines” because the BIA defined
“any status” as covering those who are “immigrants” and “nonimmigrants”
under the law.
       The panel adduces two structural arguments allegedly favoring its
interpretation. First, the panel contrasts the 1229b(a)(1) requirement that the
alien be “lawfully admitted for permanent residence,” with the subsequent
continuous residence requirement that omits the word “lawfully.” The panel
also asserts that the terms “status” and “unlawful status,” as used elsewhere
in the INA, fortify their dictionary approach. From these statutory points, the
panel reasons that Section 1229b(a) requires the alien spend at least 5 years
legally in the U.S. and at least 7 years after being “admitted” in legal or illegal
“status.”
                                           CRITIQUE
       Contrary to the panel’s analysis, this open-ended definition of “any
status” is wrong for four significant reasons: (1) it renders “in any status”
superfluous to § 1229b(a); (2) “status” is a term of art in immigration law, not
a generic term as the panel held; (3) because “status” is a term of art, the




       4There is some question about how much deference applies to the BIA interpretation.
Like the panel, I do not find the statute ambiguous and need not argue the need for deference.
Cf. Holder v. Martinez Gutierrez, 132 S. Ct. 2011 (2015) (construing § 1229b(a) both with and
without Chevron deference).
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panel’s structural interpretation of Section 1229b(a) is incorrect; and (4) the
BIA’s opinion in Blancas-Lara actually contradicts the panel’s opinion.
       1. The clearest refutation of the panel’s statutory interpretation is that
it renders “in any status” meaningless within Section 1229b(a)(2), a result
judges are not empowered to achieve. We must construe statutes to lend
meaning to every word, absent an absurdity.                       If the 7-year residence
requirement runs from an alien’s being “admitted in any status,” and “in any
status” includes immigrants, non-immigrants, and illegal aliens, then what
does “status” exclude? What significance does it have in the provision? The
panel interpretation neuters the phrase.
       2. “Status” is a term of art in immigration law, and “any status” refers
exclusively to the legal categories enumerated in the INA and conferred upon
aliens. See, e.g., Texas v. U.S., 787 F.3d 733, 759 & n.76 (5th Cir. 2015) (“The
INA expressly identifies legal designations allowing defined classes of aliens
to reside lawfully in the United States . . . .”); Blancas-Lara, 23 I. & N. Dec. at
460; Matter of Rotimi, 24 I. & N. Dec. 567, 576 (BIA 2008) (“Ordinarily, we
would expect the privilege of residing in this country to be reflected in a
recognized status such as that of nonimmigrant, refugee, or asylee, each of
which is set out in the statute.”). 5 An illegal alien does not possess a “status;”
there is no statutorily enumerated class for illegal aliens. An illegal alien is
instead “without status” and is subject to the grounds of inadmissibility and


       5 Nonimmigrant status belongs to an alien who has lawfully entered the country on
one of the visa categories laid out under 8 U.S.C. §§ 1101(a)(15)(A)-(V), which provide only
for temporary stays in the country. All other aliens are presumed to intend to live
permanently in the United States. But in order to be admitted in immigrant status, an alien
must possess an immigrant alien visa as defined at 8 U.S.C. § 1101(a)(16). An alien can also
obtain immigrant status, also known as LPR, through the adjustment of status provisions
under 8 U.S.C. §§ 1255-1255b. Thus an undocumented alien unlawfully present cannot
possess immigrant status. See also STEEL ON IMMIGRATION LAW § 2:23 (2014 ed.) (“The terms
or concepts immigrant, permanent resident, permanent resident alien, “green card” holder, or “blue
card” holder, are synonymous.”).

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removability under 8 U.S.C. §§ 1182 & 1227. Indeed, a leading immigration
treatise explains that cancellation of removal is not available to aliens who
“hav[e] entered without status.” STEEL ON IMMIGRATION LAW § 14:28 (2014
ed.)
       The Supreme Court has recognized “status” as a term of art by describing
Section 1229b(a) as follows: for purposes of cancellation, “the alien must have
lived in the United States for at least seven continuous years after a lawful
admission, whether as an LPR or in some other immigration status.” Holder v.
Martinez Gutierrez, 132 S. Ct. 2011, 2015 (2012) (emphasis added).
       Many decisions have explained that not all legal benefits are sufficient
to constitute a “status” for cancellation of removal under Section 1229b(a).
Status is thus not a generic descriptor for any relationship between any alien
and the United States, but requires a specific level of protections and benefits
apart from the fact of a mistaken entry. See e.g., Matter of Rotimi, 24 I. & N.
Dec. at 576 (“Ordinarily, we would expect the privilege of residing in this
country to be reflected in a recognized status such as that of nonimmigrant,
refugee, or asylee, each of which is set out in the statute.”) (emphasis added);
Offiiong v. Holder, 406 F. App’x 112, 113 (9th Cir. 2010) (“[M]istaken admission
confer[s] no status, permanent resident or otherwise.”); Matter of Reza-Murillo,
25 I. & N. Dec. 296, 297 (BIA 2010) (“The grant of [Family, Unity Program]
FUP benefits may very well have accorded the respondent ‘any status.’”);
Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1101-02 (9th Cir. 2011) (holding
that an approved visa petition was neither an admission nor a provision of
status); Guevara v. Holder, 649 F.3d 1086, 1095 (9th Cir. 2011) (holding, over
dissent, that an employment authorization did not provide status for
cancellation of removal); Garcia v. Holder, 659 F.3d 1261, 1269 (9th Cir. 2011)
(recognizing that the Family Unity Program gave sufficient benefits and
protections to confer upon the “beneficiaries a status” and holding that

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beneficiaries of a similar program were also conferred status); Matter of
Fajardo Espinoza, 26 I. & N. Dec. 603, 605 (BIA 2015) (“[Prior case] was more
on the question whether a grant of FUP benefits conferred a ‘status’ than on
whether it constitutes an ‘admission.’ We do not dispute that an alien who was
granted FUP benefits has a ‘status’ for immigration purposes.”).
      The Ninth Circuit’s analysis in Garcia v. Holder, 659 F.3d at 1271,
illustrates the considerations a court undertakes when deciding whether legal
protections conferred upon an alien amount to a “status” under the cancellation
of removal provision. In that case, an alien argued that his application for
Special Immigrant Juvenile Status conferred a variety of benefits that
amounted to status. Id. at 1265. The court noted that “SIJS-based parolees”
were given “permission to remain in the country pending the outcome of their
adjustment of status application, employment authorization, exemption from
certain inadmissibility grounds applicable to other aliens . . . .” Id. at 1271.
Based on these benefits, the court held a grant of SIJS-based parole counts as
both admission and a provision of status for the alien for purposes of 1229b(a).
Id. at 1272.
      If “status” meant, for purposes of cancellation of removal, only that an
inadmissible alien had been inadvertently waved through, then many of the
above cases discussing the sufficiency of “status” would have wasted the courts’
time. To put the matter differently, if Tula-Rubio, who entered and resided
here as an illegal alien for ten years, is eligible for cancellation of removal
despite his erroneous admission, then these other aliens who had achieved
some legal benefits in the U.S., albeit ultimately without sufficient “status,”
are being more harshly treated under Section 1229b(a). Such disparity makes
no sense.
      Decisions of this and other courts recognize that if the undocumented
alien lacks a status defined by the INA, the alien is “without status” and is

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either inadmissible or removable. See United States v. Orellana, 405 F.3d 360,
370 (5th Cir. 2005) (“Rather, we find that these cases deal exclusively with
scenarios in which an alien . . . lacks any status whatsoever.”); see also Pereira-
Barbeira v. U.S. Dep't of Justice, Immigration & Naturalization Serv., 523 F.2d
503, 506 (2d Cir. 1975) (“[I]t is established by clear, unequivocal and convincing
evidence that the respondent is without status in the United States . . . .”);
Saloum v. U.S. Citizenship & Immigration Servs., 437 F.3d 238, 240-41 (2d
Cir. 2006) (“[A] Syrian national [Wasila Zarkaly] who held no status in the
United States”); Reyes-Melendez v. I.N.S., 342 F.3d 1001, 1002 (9th Cir. 2003)
(“Maria and Alejandro also are Mexican citizens and are without status.”);
Medina-Chimal v. Holder, 602 F. App’x 720, 721 (10th Cir. 2015) (“Javier
Medina–Chimal is an alien without status.”).
      Tula Rubio’s lack of status was precisely why both the immigration judge
and the BIA determined that he was ineligible for cancellation of removal.
ROA.052 (“This Court does not believe that the word status includes those who
have no status or legal right to enter or remain in the United States.”);
ROA.007 (“The respondent has not demonstrated that the immigration officer
conferred any status upon him at the port of entry in 1992.”).               If an
undocumented alien is “without status,” the panel’s holding that an
undocumented alien was admitted “in any status” must be incorrect.
      3. The panel’s structural interpretation of Section 1229b(a) is marred in
several ways by its misunderstanding of “status.”         First, when the panel
contrasts “lawfully admitted for permanent residence” (LPR status) in
subsection 1229b(a)(1) (the 5-year residency provision) with subsection
1229b(a)(2)’s residence requirement “in any status” that does not include the
word “lawfully,” the panel overlooks the categorical status of an LPR.




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“Lawfully admitted for permanent residence” is a specific type of status 6—LPR
status—rather than a generic phrase for any alien who is legally allowed to be
present. Holder v. Martinez Gutierrez, 132 S. Ct. at 2015 (“The first paragraph
of [1229b(a)] requires that the alien have held the status of a lawful permanent
resident (LPR) for at least five years”). Because the word “lawfully” is part of
a phrase connoting a specific status (LPR status), the absence of that word
from Section 1229b(a)(2) does not support the conclusion that the panel draws.
In fact, no other legally recognized statuses use the word “lawful” as a
descriptor.    See 8 U.S.C. §§ 1101(a)(15)(A)-(V).          Obviously, one could not
conclude that the absence of the word “lawful” from the description of the H-1-
b nonimmigrant (business visitor) status under 8 U.S.C. § 1101(a)(15)(H)(1)(b)
subsumes undocumented aliens.
       The panel opinion also supports its flawed interpretation of “any status”
by asserting that because the INA mentions “lawful status” or “unlawful
status” in other provisions, “in any status” necessarily includes “undocumented
status.” This is also incorrect. Four of the cited provisions describe “lawful
status” as a requirement that an alien applying for a benefit must have
maintained following a prior legal entry, i.e. that he remained in “lawful
status.” See 8 U.S.C. §§ 1184(k)(3) (lawful status required to adjust from one
legal status to another), 1254(a)(f)(4) (requiring lawful nonimmigrant status to
qualify for temporary protected status (“TPS”)), 1255(a),(c) (maintaining lawful
status required to adjust to LPR status), and 1433(a)(5) (lawful admission and
lawful status required of foreign-born child who enters United States to pursue

       6“Congress has defined the phrase ‘lawfully admitted for permanent residence’ as a
term of art meaning “the status of having been lawfully accorded the privilege of residing
permanently in the United States as an immigrant in accordance with the immigration laws.”
INA § 101(a)(20), 8 U.S.C. § 1101(a)(20). This definition describes a particular immigration
status….” Lanier v. U.S. Atty. Gen., 631 F.3d 1363, 1366 (11th Cir. 2011); see also STEEL ON
IMMIGRATION LAW § 2:23 (2014 ed.) (“The terms or concepts immigrant, permanent resident,
permanent resident alien, “green card” holder, or “blue card” holder, are synonymous.”).

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citizenship). In other words, the premise of these provisions is a pre-existing
legally conferred status held by the petitioner; if the petitioner fell out of such
status, however, he would not be eligible for those types of relief.        These
provisions demonstrate that “unlawful status” means one has forfeited “lawful
status,” but they do not statutorily cover one who never had legal status to
begin with.
      One other provision of the INA, 8 U.S.C. § 1255a(a)(2)(A)-(B), is part of
the 1982 amnesty law allowing people who previously resided unlawfully in
the United States to obtain temporary or permanent legal residence. This
section uniquely refers to prior “unlawful status,” but the reason is obvious:
residents who already had lawful status didn’t need to resort to the amnesty
law since ordinary immigration law channels were available to them. Only in
this situation does it appear that Congress used “status” in reference to illegal
aliens.
      4. The panel opinion mistakenly relies on In Re Blancas-Lara, 23 I. &
N. Dec. 458 (BIA 2002) to support its open-ended interpretation of “in any
status.” Blancas-Lara was admitted in 1986 with a border crossing card, which
conferred nonimmigrant status. Id. at 460. The BIA addressed two questions:
whether admission as a nonimmigrant, rather than as an LPR, met the seven
year requirement under Section 1229b(a), and whether the nonimmigrant had
to maintain that status for the entirety of the seven years.
      With regard to the first question, the BIA noted that Section 1229b(a)’s
predecessor statute likely would not have covered nonimmigrants, see infra,
but that Section 1229b(a)’s language was materially different. Id. at 459. The
BIA also explained that status was a “term of art” to denote a “certain legal
standing,” and that the use of the word “any” illustrated Congressional intent
to “include admissions of nonimmigrants as well as immigrants.” Id. Thus,
the BIA held that an alien admitted in a nonimmigrant status, such as an F-1

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student or H-1 employee, could qualify for cancellation of removal. Id. at 461.
This holding reflects the customary understanding of “status” since both
immigrants and nonimmigrants are documented aliens who have status
recognized in the INA. See n.5 supra.
       The BIA also held that once the nonimmigrant is admitted in a status,
he need not maintain that status in order to claim cancellation of removal.
That conclusion, however, in no way supports the panel opinion. Critically, the
BIA noted that the status determination required by § 1229b(a)(2) is a
snapshot in time at the moment of admission. Id. Section 1229b(a)(2) is not
concerned with the alien’s status after admission; therefore, so long as the alien
was admitted into a legally recognized status, he could later lapse into
“unlawful status” and still seek cancellation of removal. Id. 7 But that is not
the same as allowing an undocumented alien without status to become eligible
for cancellation of removal, because in the case of the lapsed unlawful status,
the alien has still met the terms of § 1229b(a)(2) at the time he was admitted.
       The Ninth Circuit has correctly read Blancas-Lara as holding that only
immigrants and nonimmigrants have “any status” within Section 1229b(a)(2).
In Vasquez de Alcantar, 645 F.3d 1097, the court analyzed Blancas-Lara and
determined that an alien must be in either immigrant or nonimmigrant status
at the date of admission.         Id. at 1101-02.       The court held that the “BIA



       7 Not only has the BIA reaffirmed this holding, but other circuits and academics have
recognized the BIA’s decision that so long as the alien was admitted in “status,” he may later
enter “unlawful status.” See e.g., Matter of Rotimi, 24 I. & N. Dec. 567, 573 (BIA 2008)
(“Section 240A(a) requires only 7 years of continuous residence after admission to the United
States in any status, thereby including aliens who have fallen out of status during the
prescribed period.”); Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1101-02 (9th Cir. 2011)
(“[I]mmigrants and nonimmigrants alike, are eligible to accrue time towards the continuous
residence requirement after they are lawfully admitted even if they are illegally present for
some period of time thereafter.”); Elwin Griffith, Admission and Cancellation of Removal
Under the Immigration and Nationality Act, 2005 Mich. St. L. Rev. 979, 1063 (2005) (“The
problem is that once the alien has been admitted, subsection (a)(2) does not require him to
maintain lawful status.”).
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definition does not support Vasquez's argument that an approved I–130 visa
petition provides status, because Vasquez is not categorically an immigrant or
a nonimmigrant.” Id. at 1102.
      The BIA’s holding that nonimmigrant status is sufficient at the date of
admission is not the same as and does not support the panel’s conclusion that
an undocumented alien without status at his date of admission may be eligible
for cancellation of removal.     Indeed, Blancas-Lara compels the opposite
inference: an undocumented alien admitted without status is not admitted “in
any status” for purposes of Section 1229b(a).
      5. Although a reference to the statute’s legislative history is
unnecessary in the absence of ambiguity, the amendments to the former
cancellation of removal provision, INA Section 212(c) reinforce that “any
status” covers only legally recognized immigrants or nonimmigrants. The
Ninth Circuit explains:
      Section 212(c), the predecessor to § 1229b, required an alien
      seeking relief from removal to have “lawful unrelinquished
      domicile of seven consecutive years.” This requirement caused
      much confusion among the executive and judicial branches—the
      BIA and courts of appeals disagreed about the status necessary to
      satisfy this requirement. Ultimately, Congress designed the dual
      requirement of a five-year legal permanent residency and seven-
      year continuous residence in any status, § 1229b(a)(1)(2), “to clear
      up prior confusion and to strike a balance between the conflicting
      interpretations ... by counting a limited period of time spent in non-
      permanent status [nonimmigrant] while still requiring at least five
      years of permanent resident status [LPR status].”

Garcia-Quintero, 455 F.3d at 1016 (internal citations omitted).          See also
Martinez Gutierrez, 132 S. Ct. at 2018-19 (recapping legislative history). The
panel opinion asserts that the phrase “any status” illustrates an intent to
provide cancellation of removal to those who were inadvertently admitted into
the United States but were undocumented aliens.          But the language was


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intended to clear the bar for legal nonimmigrants other than LPRs with respect
to cancellation of removal. Using “status” as a term of art, as explained supra,
captures this clearly identified goal.
                                CONCLUSION
      “Status” is not a generic term covering undocumented aliens who were
mistakenly waved through a port of entry. Rather, it is well understood in
immigration law that a “status” is one of a legally defined set of categories that
confers the right to be present in the United States. The phrase “any status”
in § 1229b(a)(2) refers to all of these legal bases. In contrast, an undocumented
alien is without any status at all. To interpret “admitted in any status” as
encompassing people who were illegal aliens when accidentally admitted is to
empower cancellation of removal for anyone who has been an LPR for five years
and resided in the country for seven years after having only been “admitted.”
The panel had no authority to amend the law by depriving “status” of its
customary meaning in immigration law and, worse, of any meaning in this
provision.




                                                                             A True Copy
                                                                             Certified Oct 28, 2015


                                                                             Clerk, U.S. Court of Appeals, Fifth Circuit




                                                        A True Copy
                                                        Certified Oct 28, 2015


                                                        Clerk, U.S. Court of Appeals, Fifth Circuit


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