Case: 20-60737 Document: 00516203742 Page: 1 Date Filed: 02/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 15, 2022
No. 20-60737 Lyle W. Cayce
Summary Calendar Clerk
Kenedy Martins-Gadiole,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 030 630
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Kenedy Martins-Gadiole, a native and citizen of Brazil, petitions for
review of the Board of Immigration Appeals’ (BIA) affirming, without
opinion, the denial of his motion to reopen and rescind his in-absentia
removal order.
*
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opinion should not be published and is not precedent except under the limited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: 20-60737 Document: 00516203742 Page: 2 Date Filed: 02/15/2022
No. 20-60737
In 2005, Martins was served in person with a notice to appear before
the Immigration Judge (IJ). Because he failed to appear, the IJ ordered him
removed in absentia. In 2019, Martins filed a motion to reopen and rescind
his in-absentia removal proceedings: on the basis he lacked proper notice of
the hearing, under 8 U.S.C. § 1229a(b)(5)(C)(i)–(ii) (rescission of order for
failure to appear); and to apply for cancellation of removal, under 8 U.S.C.
§ 1229a(c)(7) (motions to reopen removal proceedings). The IJ denied
Martins’ motion and declined to reopen sua sponte.
Martins asserts the IJ erred in failing to: evaluate all the evidence on
whether he received notice to appear; give an adequate explanation for
denying his motion to reopen to apply for cancellation of removal; and give
an adequate explanation for declining to reopen sua sponte.
Where, as here, the BIA affirms the IJ’s decision without opinion, we
review the IJ’s decision as the final agency decision. See Hadwani v. Gonzales,
445 F.3d 798, 800 (5th Cir. 2006) (per curiam). Legal conclusions are
reviewed de novo; factual findings, for substantial evidence. E.g., Orellana-
Monson v. Holder, 685 F.3d 511, 517–18 (5th Cir. 2012). Under the
substantial-evidence standard, “petitioner has the burden of showing that the
evidence is so compelling that no reasonable factfinder could reach a contrary
conclusion”. Id. at 518 (citation omitted).
Relying on Hernandez v. Lynch, 825 F.3d 266, 269–70 (5th Cir. 2016),
Martins claims the IJ erred in finding his affidavit not credible because all
relevant evidence submitted to overcome the presumption of notice was not
considered. Hernandez, however, concerned presumption of notice via mail.
Id. at 267. Martins does not contend, as the petitioner in Hernandez did, that
he did not receive the notice to appear, but that it was insufficient because it
was in English. Furthermore, “sections 1229(a)(1) and (b)(1) do not require
notice in the alien’s native language”. Cho-Ajanel v. Lynch, 622 F. App’x
2
Case: 20-60737 Document: 00516203742 Page: 3 Date Filed: 02/15/2022
No. 20-60737
434, 434 (5th Cir. 2015) (per curiam) (citation omitted); see also Cruz-Diaz v.
Holder, 388 F. App’x 429, 430 (5th Cir. 2010) (per curiam) (“The statute
does not explicitly require that the [notice to appear] be in any language other
than English”.).
Martins’ other challenges (the IJ’s denial of his motion to reopen to
apply for cancellation of removal, and not exercising sua sponte authority to
reopen) were both unexhausted before the BIA. See Omari v. Holder, 562
F.3d 314, 318 (5th Cir. 2009) (explaining “[p]etitioners fail to exhaust their
administrative remedies as to an issue if they do not first raise the issue before
the BIA”). Our court, therefore, lacks jurisdiction to consider them. E.g.,
Avelar-Oliva v. Barr, 954 F.3d 757, 766 (5th Cir. 2020) (explaining
petitioner’s “failure to exhaust an issue before the BIA is a jurisdictional bar
to this court’s consideration of the issue”).
DISMISSED IN PART; DENIED IN PART.
3