Case: 19-60867 Document: 00516029504 Page: 1 Date Filed: 09/24/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60867 September 24, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Juan Heriberto Maradiaga-Vardalez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 022 035
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Juan Heriberto Maradiaga-Vardalez, a native and citizen of Honduras,
petitions us for review of a decision of the Board of Immigration Appeals
denying his motion to reopen. Maradiaga-Vardalez moved to reopen his
2005 in absentia removal order on the basis of his Notice to Appear being
*
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opinion should not be published and is not precedent except under the limited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: 19-60867 Document: 00516029504 Page: 2 Date Filed: 09/24/2021
No. 19-60867
legally improper because he did not receive a Notice of Hearing, or because
the Notice of Hearing was invalidated by the Supreme Court.
We are not compelled to find that Maradiaga-Vardalez has rebutted
the weak presumption that his Notice of Hearing was delivered. The record
reflects that the Board considered all the evidentiary factors. Navarrete-
Lopez v. Barr, 919 F.3d 951, 954. The Board was correct to give weight to
Maradiaga-Vardalez’s over ten-year delay in inquiring about his immigration
status. See Mauricio-Benitez v. Sessions, 908 F.3d 144, 151 (5th Cir. 2018).
Moreover, Maradiaga-Vardalez did not provide an affidavit from the cousin
with whom he resided during the relevant period.
We reject Maradiaga-Vardalez’s alternate argument that a recent
Supreme Court case holds that his Notice to Appear was defective in light of
Pereira v. Sessions, 138 S. Ct. 2108 (2018). Accordingly, the Notice to Appear
was proper under the law of this circuit and the agency had jurisdiction to
decide this case. Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019), abrogated
in part on other grounds by Niz-Chavez v. Garland, 141 S. Ct. 1474, 1479–80
(2021); see Maniar v. Garland, 998 F.3d 235, 242 (5th Cir. 2021). Maradiaga-
Vardalez also asserts that Pierre-Paul should be overruled, but one panel of
this court cannot overrule another. Lowrey v. Tex. A & M Univ. Sys., 117 F.3d
242, 247 (5th Cir. 1997). Finally, he asserts that the agency should have
granted a sua sponte reopening based on his Pereira arguments, but we lack
jurisdiction to order such a reopening. Hernandez-Castillo v. Sessions, 875
F.3d 199, 206-07 (5th Cir. 2017).
DENIED in part; DISMISSED in part.
2