USCA11 Case: 20-14380 Date Filed: 11/19/2021 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14380
Non-Argument Calendar
____________________
MAUDILIO LOPEZ-GARCIA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A075-431-320
____________________
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2 Opinion of the Court 20-14380
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Maudilio Lopez-Garcia seeks review of a final order of the
Board of Immigration Appeals affirming an immigration judge’s
denial of his motion to rescind his in absentia removal order and
reopen his proceedings. The BIA concluded that his motion should
be denied because he had received proper notice of the conse-
quences of failing to appear before the IJ.
Mr. Lopez-Garcia argues that the BIA erred in denying his
motion because the notices that he received did not explain all of
the consequences; they did not explain that the in absentia removal
order could only be rescinded in two ways or that judicial review
of that order was limited to review of the notice’s validity, the rea-
sons for his absence, and whether he is removable. He admits that
the notices did warn him that a removal order could be entered
against him as a consequence, but he contends that even this warn-
ing was not proper because it used the word “may” where the stat-
ute uses “shall.” The government argues that the notices contained
the required explanation of the consequences, and did not need to
explain the legal procedure necessary to reverse that consequence.
Further, the government argues that the word “may” was not im-
proper.
For reasons explained below, we deny Mr. Lopez-Garcia’s
petition for review.
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20-14380 Opinion of the Court 3
I
Mr. Lopez-Garcia, a native and citizen of Guatemala, en-
tered the United States around June of 1997. He was fifteen years
old and without his family when he crossed the border; he came
because his family was “very poor.” A.R. at 90.
In August 1997, Mr. Lopez-Garcia was apprehended by the
Immigration and Naturalization Service and issued a Notice to Ap-
pear, which charged him as removable under 8 U.S.C. §
1182(a)(6)(A)(i), for being present in the United States without be-
ing admitted or paroled. Among other things, the form notice
stated:
If you fail to attend the hearing at the time and place
designated on this notice, or any date and time later
directed by the Immigration Court, a removal order
may be made by the immigration judge in your ab-
sence, and you may be arrested and detained by the
INS.
Id. at 164. But Mr. Lopez-Garcia could not read or understand the
Notice to Appear, so he took it “to a lady who had a money transfer
store, who had said that she understood the [i]mmigration [l]aw.”
Id. at 90. She told him not to go to court because he could have to
“attend a lot of hearings” and would be told that he “ha[s] to study.”
Id.
In September 1997, the IRS sent Mr. Lopez-Garcia a Notice
of Hearing. It stated the date and time of the hearing. It also stated:
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4 Opinion of the Court 20-14380
Failure to appear at your hearing except for excep-
tional circumstances may result in one or more of the
following actions: (1) You may be taken into custody
by the Immigration and Naturalization Service and
held for further action. OR (2) Your hearing may be
held in your absence under section 240(b)(5) of the
Immigration and Nationality Act. An order of re-
moval will be entered against you if the Immigration
and Naturalization Service established by clear, une-
quivocal and convincing evidence that a) you or your
attorney has been provided this notice and b) you are
removable.
Id. at 162.
On December 17, 1997, the hearing was conducted in absen-
tia. Mr. Lopez-Garcia did not attend because he “did not have the
means to attend” and could not afford to be told to go to school
instead of working. Id. at 90–91. The IJ found removability based
on the evidence submitted by the government. Mr. Lopez-Garcia
was sent a copy of the order.
Mr. Lopez-Garcia later applied for several administrative
stays. In April of 2015, he was granted an administrative stay of
one year. But he was denied a further stay in October of 2019.
In March of 2020, Mr. Lopez-Garcia filed a motion to rescind
the December 1997 in absentia removal order and reopen his pro-
ceedings. The IJ denied his motion, finding that the Notice to Ap-
pear “contained the appropriate failure to appear warnings.” Id. at
63. The IJ also noted that Mr. Lopez-Garcia did not address why
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20-14380 Opinion of the Court 5
he waited over 22 years to file the motion to reopen or what he
would have said had he attended the hearing. Nor did he argue
that he was eligible for relief at the time of filing his motion.
Mr. Lopez-Garcia appealed to the BIA, which denied his mo-
tion and dismissed his appeal. The BIA found that he had received
the required and proper notice of the consequences of failing to
appear at his hearing. Further, the BIA found that he did not need
to be placed on notice of “collateral consequences” of failing to ap-
pear, such as restrictions on how to seek recission of the order and
the scope of judicial review. Id. at 4.
II
Where, as here, the BIA does not expressly adopt the IJ’s de-
cision, we review only the BIA’s decision. See Singh v. U.S. Att’y
Gen., 561 F.3d 1275, 1278 (11th Cir. 2009). We review the BIA’s
denial of a motion to reopen removal proceedings for abuse of dis-
cretion, but we review legal issues de novo. See Bing Quan Lin v.
U.S. Att’y Gen., 881 F.3d 860, 872 (11th Cir. 2018).
We review questions of statutory interpretation de novo,
and “we begin by examining the text of the statute to determine
whether its meaning is clear.” Silva-Hernandez v. U.S. Bureau of
Citizenship & Immigr. Servs., 701 F.3d 356, 361 (11th Cir. 2012). If
it is clear, “that is the end of the matter.” Id.
A motion to reopen an in absentia removal order may be
made at any time but, if filed more than 180 days after the order,
the motion must demonstrate that “the alien did not receive notice
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6 Opinion of the Court 20-14380
in accordance with paragraph (1) or (2) of [8 U.S.C. §] 1229(a) of
this title” (or that he was in custody) for the order to be rescinded.
See 8 U.S.C. § 1229a(b)(5)(C). Notice according to the statute must,
among other things, specify “[t]he consequences under [8 U.S.C. §]
1229a(b)(5) . . . of the failure, except under exceptional circum-
stances, to appear at such proceedings.” 8 U.S.C. §
1229(a)(1)(G)(ii). Titled “Consequences of Failure to Appear,” §
1229a(b)(5) contains five subparagraphs. 8 U.S.C. § 1229a(b)(5).
Subparagraph A, titled “In general,” states:
Any alien who, after written notice . . ., does not at-
tend a proceeding under this section, shall be ordered
removed in absentia if the Service establishes by clear,
unequivocal, and convincing evidence that the writ-
ten notice was so provided and that the alien is re-
movable (as defined in subsection (e)(2)).
Id. Subparagraph D, titled “Effect on judicial review,” says that pe-
titions for review of orders entered in absentia shall “be confined
to (i) the validity of the notice provided to the alien, (ii) the reasons
for the alien’s not attending the proceeding, and (iii) whether or
not the alien is removable.” Id. And subparagraph C explains what
is required for recission of the order. See id.
Mr. Lopez-Garcia argues that his notices were not sufficient
because they did not discuss rescission or judicial review. This ar-
gument fails because those are not consequences, and therefore do
not need to be mentioned in the notices.
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20-14380 Opinion of the Court 7
Although § 1229(a)(1)(G)(ii) refers to “consequences” in the
plural and to § 1229a(b)(5) generally (as opposed to specifically §
1229a(b)(5)(A)), the notice need not contain information regarding
rescission or review of an in absentia order to be complete because
those are not consequences. A “[c]onsequence” is “[a] result that
follows as an effect of something that came before.” See Black’s
Law Dictionary 381 (11th ed. 2019). The entry of an in absentia
removal order is a result that follows as an effect of Mr. Lopez-Gar-
cia’s failure to attend the hearing, where evidence of his remova-
bility was presented. The procedure by which he can rescind that
order and the limited judicial review are not the result of his failure
to attend the hearing; they instead describe the process in which
the result can be undone. See 8 U.S.C. §§ 1229a(b)(5)(C) and (D).
Further, the recission and review are not automatic results of either
a failure to attend the hearing or the entry of the order, as some
people against whom a removal order is entered may never choose
to file a motion to reopen.
Mr. Lopez-Garcia’s other argument, that the Notice to Ap-
pear was faulty because it used the word “may” instead of the word
“shall,” is also unavailing. First, the Notice was not incorrect in
stating “a removal order may be made by the immigration judge in
your absence” A.R. at 164 (emphasis added)—because it would
only be made, and required, if evidence presented at the hearing
showed that he was removable. See 8 U.S.C. § 1229a(b)(5)(A). And
Mr. Lopez-Garcia concedes that, “standing alone,” the Notice of
Hearing’s phrasing of that same warning “would have properly
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8 Opinion of the Court 20-14380
warned him.” Pet’r’s Br. at 65. Second, the Notice of Hearing’s
warning that “[y]our hearing may be held in your absence” does
not, as Mr. Lopez-Garcia argues, “undermine” the other warnings
through its use of the word “may.” Contrary to Mr. Lopez-Garcia’s
assertions, it was not required that the hearing be held in his ab-
sence. See Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 326–28
(2021) (stating that administrative closure has been used by immi-
gration judges “for many decades”). The notices he received were
sufficient.
III
We deny Mr. Lopez-Garcia’s petition.
PETITION DENIED.