Case: 20-61008 Document: 00516356686 Page: 1 Date Filed: 06/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-61008 June 14, 2022
Summary Calendar Lyle W. Cayce
Clerk
Cintia Lizeth Garcia-Turcios,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 892 582
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Cintia Lizeth Garcia-Turcios, a native and citizen of Honduras,
petitions for review of a decision by the Board of Immigration Appeals (BIA)
affirming the denial by an immigration judge (IJ) of her motion to reopen and
to rescind an in absentia removal order entered against her. In her petition
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-61008
for review, Garcia-Turcios argues that the IJ should have reopened her
proceedings because she never received the notices of hearing that were sent
to her Florida mailing address and the toll-free number she called failed to
provide her with any information about her hearing date. She also contends
that her notice to appear (NTA) was defective for not including a time and
date for her removal hearing, in violation of Pereira v. Sessions, 138 S. Ct. 2105
(2018). Because we agree with her latter argument, in light of new
developments in addition to Pereira, we do not consider her former argument.
We review the denial of a motion to reopen under a deferential abuse-
of-discretion standard. Rodriguez v. Garland, 15 F.4th 351, 354 (5th Cir.
2021). An erroneous interpretation of the law is an abuse of discretion. Id.
Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), an in absentia removal
order may be rescinded “upon a motion to reopen filed at any time if the alien
demonstrates that the alien did not receive notice in accordance with
[§ 1229(a)(1) or (2)].” 8 U.S.C. § 1229a(b)(5)(C)(ii). Section 1229(a)(1)
requires that written notice—in the form of an NTA—be provided in
removal proceedings and that the NTA shall include, among other things,
“[t]he time and place at which the proceedings will be held.”
§ 1229(a)(1)(G)(i).
In Pereira, the Supreme Court held that an NTA that fails to inform
an alien of when and where to appear is invalid and therefore does not trigger
the stop-time rule of 8 U.S.C. § 1229b(d), ending the period of continuous
presence in the United States for purposes of cancellation of removal. 138 S.
Ct. at 2109-10. After Pereira, we endorsed a two-step notice process, holding
that a perfected NTA triggers the stop-time rule when an alien receives all
required information, whether in one document or more. Pierre-Paul v. Barr,
930 F.3d 684, 690-91 (5th Cir. 2019), overruled in part as recognized by Maniar
v. Garland, 998 F.3d 235, 242 n.2 (5th Cir. 2021).
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No. 20-61008
After the parties submitted their briefs, the Supreme Court rejected
the two-step process endorsed by Pierre-Paul, holding that an NTA is
inadequate to trigger the stop-time rule unless it contains the time and place
of the proceedings. Niz-Chavez v. Garland, 141 S. Ct. 1474, 1484-86 (2021).
Applying Niz-Chavez, we held that, in the context of in absentia removal
orders, a single document containing the statutory information is required for
the alien to receive proper notice. Rodriguez, 15 F.4th at 355. Garcia-
Turcios’s NTA was therefore invalid because it did not include the date and
time of her removal hearing, and the deficiency was not cured by subsequent
notices. See id. at 355-56. In light of Niz-Chavez and Rodriguez, the BIA’s
denial of Garcia-Turcio’s motion to reopen was an abuse of discretion
because it was based on an erroneous interpretation of the law. See Rodriguez,
15 F.4th at 354.
Accordingly, Garcia-Turcios’s petition for review is GRANTED,
the BIA’s decision is VACATED, and the case is REMANDED to the BIA
for further proceedings consistent with this opinion.
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