Case: 19-60573 Document: 00515610424 Page: 1 Date Filed: 10/21/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 21, 2020
No. 19-60573
Lyle W. Cayce
Summary Calendar Clerk
Glendy Yocelin Pineda-Sabillon,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 242 166
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Glendy Yocelin Pineda-Sabillon, a native and citizen of Honduras,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of
her appeal from the immigration judge’s (IJ) denial of her motion to reopen
her removal proceedings. She claims the BIA erred by: denying her motion
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-60573 Document: 00515610424 Page: 2 Date Filed: 10/21/2020
No. 19-60573
to reopen, asserting the notice to appear (NTA) was statutorily deficient and
insufficient to confer jurisdiction on the immigration court; and, failing to
address her request to reopen proceedings sua sponte. The denial of a motion
to reopen is reviewed under a very “deferential abuse-of-discretion
standard”. Ojeda-Calderon v. Holder, 726 F.3d 669, 672 (5th Cir. 2013).
Following Pineda’s August 2014 entry into the United States without
inspection, the Department of Homeland Security (DHS) served her with an
NTA, stating she was removable for failure to comply with immigration
requirements for entry into the country. After receiving a notice in April
2017 that her hearing was delayed for two years, but was likely to be
rescheduled, she filed an application for, inter alia, asylum. The application
included a different address than what DHS had on file. The immigration
court sent Pineda notices about a hearing that were returned undeliverable,
but she attended anyway, requesting a continuance and a change-of-address
form. She was also informed at the hearing of her next one, set for 28
February 2018. After her failure to attend that hearing, the IJ entered an in
absentia removal order, which Pineda received by mail. The IJ denied her
motion to reopen and the BIA dismissed her appeal.
Pineda contends her NTA was defective because it did not state the
time and place of her removal proceedings. Consequently, she asserts: she
did not receive proper statutory notice of her removal hearing; and the NTA
was insufficient to confer jurisdiction on the immigration court. Thus, she
claims our court should reverse the BIA’s judgment under Pereira v. Sessions,
138 S. Ct. 2105 (2018).
Our court has rejected similar notice-and-jurisdictional challenges to
the adequacy of an NTA and concluded that Pereira is limited to the context
of the stop-time rule for purposes of cancellation of removal. See Pierre-Paul
v. Barr, 930 F.3d 684, 689–93 (5th Cir. 2019), cert. denied, 2020 WL 1978950
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Case: 19-60573 Document: 00515610424 Page: 3 Date Filed: 10/21/2020
No. 19-60573
(U.S. Apr. 27, 2020) (No. 19-779); see also Mauricio-Benitez v. Sessions, 908
F.3d 144, 148 n.1 (5th Cir. 2018), cert. denied, 139 S. Ct. 2767 (2019). Pineda
has therefore failed to show the BIA committed legal error in dismissing her
appeal on this basis. See Ojeda-Calderon, 726 F.3d at 672. (In the light of our
above precedent, Pineda raises the foregoing issue here to preserve it for
possible further review.)
With respect to Pineda’s other issue, our court lacks jurisdiction to
decide her claim that the BIA should have exercised its discretionary
authority to reopen the proceedings sua sponte. See Hernandez-Castillo v.
Sessions, 875 F.3d 199, 206–07 (5th Cir. 2017).
DISMISSED IN PART AND DENIED IN PART.
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