USCA11 Case: 22-12647 Document: 17-1 Date Filed: 05/16/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12647
Non-Argument Calendar
____________________
SAMUEL ANTONIO MURILLO-JUAREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A098-118-913
____________________
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2 Opinion of the Court 22-12647
Before WILSON, ANDERSON, and ED CARNES, Circuit Judges.
PER CURIAM:
Samuel Antonio Murillo-Juarez petitions for review of the
Board of Immigration Appeals’ (BIA) order affirming the Immigra-
tion Judge’s (IJ) denial of his motion to reopen and rescind an in
absentia order of removal, based on his alleged lack of notice of his
removal hearing. He contends that the IJ and BIA failed to consider
significant evidence and asks us to reverse the BIA’s decision deny-
ing his motion to reopen. He argues that the totality of the evi-
dence rebuts the presumption of delivery of the notice of hearing.
I.
Murillo-Juarez, 1 a native and citizen of Honduras, entered
the United States without inspection on or about May 15, 2004. He
told Border Patrol agents that he was with his older sister Carla
Patricia Murillo-Juarez, and the two were traveling to live with
family in Miami. Carla provided the agents with a specific address
1 For the first time on appeal to the BIA, Murillo-Juarez asserted that his real
name was “Samuel Antonio Alvarado Casco” and that the NTA “arguably
does not apply to him” because it listed the wrong name and as a result was
“factually incorrect.” He did not make that argument to the IJ. And no other
documents or forms in the record — besides his submissions to the BIA —
contain that name. His brief to this Court refers to him as “Samuel Murillo-
Juarez” or “Petitioner.” He has abandoned any argument that the NTA did
not apply to him because it did not contain the correct name.
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22-12647 Opinion of the Court 3
the two were headed to: 740 Northeast 86th Street, Miami, Florida
22128.
That same day, a Border Patrol agent personally served Mu-
rillo-Juarez with a notice to appear (NTA), which charged him as
removable under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the
United States without being admitted or paroled. The NTA or-
dered him to appear before an IJ on July 28, 2004, at 8:30 a.m. and
provided the address of the immigration court in Miami. It also
stated that Murillo-Juarez was required to provide his mailing ad-
dress, and he listed 740 Northeast 86th Street, Miami, Florida as his
current address. The NTA specified that if his mailing address
changed, Murillo-Juarez was required to submit written notice of
that change. Murillo-Juarez signed the NTA and put his fingerprint
on it.
On June 21, 2004, a notice of hearing was mailed to Murillo-
Juarez at the Miami address listed on his NTA. This notice, like the
NTA, stated that the hearing would take place on July 28, 2004, at
8:30 a.m., at the same address for the immigration court listed on
the NTA. Murillo-Juarez did not appear at his removal hearing and
the immigration judge ordered him removed in absentia based on
the charge contained in the NTA.
Fourteen years later, in 2018, Murillo-Juarez, still in the
United States, moved to reopen his removal proceedings. He al-
leged that Carla Patricia Murillo-Juarez was not his sister, he never
lived in Miami, never provided a Miami address, and didn’t know
he had a removal hearing because he never received a notice of
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4 Opinion of the Court 22-12647
hearing. He also attached a copy of an approved I-130 petition for
alien relative but made no arguments regarding it. 2
The IJ concluded that Murillo-Juarez had not established
good cause to reopen and denied his motion. The IJ found that in
2004 Murillo-Juarez had claimed to Border Patrol that he was ac-
companying his sister and the pair were released from custody as a
family unit. The IJ also found that his purported sister had pro-
vided the Miami, Florida address, which was Murillo-Juarez’s last
known address, and that the hearing notice was sent there. 3
Murillo-Juarez appealed the denial of his motion to reopen
to the BIA. There, he contended for the first time that he was en-
titled to asylum and withholding of removal because the country
conditions had “changed dramatically” in Honduras, and that these
changed conditions were relevant because he was now married to
a U.S. citizen and had a child who was also a U.S. citizen. He also
mentioned “an approved I-130 petition due to his marriage to a
2 The I-130 petition designated the notice type as “Husband or wife of U.S.
Citizen” and listed “Samuel Antonio Alvarado Casco” as the beneficiary. The
approval form states that “[t]he approval of this visa petition does not in itself
grant any immigration status and does not guarantee that the alien beneficiary
will subsequently be found eligible for a visa for admission to the Unites States,
or an extension, change, or adjustment of status.”
3 The record contains a change of address form signed by Murillo-Juarez. But
that form includes only the “[o]ld [a]ddress” — the Miami one. The space to
fill in a new address was left blank, as was the date of the address change. As
a result, Murillo-Juarez never provided notice of a different address.
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22-12647 Opinion of the Court 5
United States citizen,” asserting in passing that the petition demon-
strated prima facie eligibility for relief. As for notice of his removal
hearing, Murillo-Juarez again asserted that he was not traveling
with his alleged sister when he entered the United States and did
not live with her in Miami, so when the notice of hearing was sent
to her address, he never received it.
The BIA dismissed Murillo-Juarez’s appeal. The BIA found
no clear error in the IJ’s findings that the notice of hearing was sent
to Murillo-Juarez’s last known address and that Murillo-Juarez’s
statement claiming non-receipt was insufficient to rebut the pre-
sumption of proper notice. It noted that Murillo-Juarez had been
personally served with an NTA and that he failed to present suffi-
cient evidence to suggest that NTA did not pertain to him or that
further fact-finding on that issue was necessary.
The BIA also concluded that because Murillo-Juarez had not
argued to the IJ that the country conditions in Honduras had
changed, the IJ did not err by not sua sponte addressing that issue.
It determined that, in any event, Murillo-Juarez had submitted no
evidence of changed country conditions that would establish any
entitlement to reopening, asylum, or withholding of removal.
The BIA determined that Murillo-Juarez had not established
that he was entitled to reopening based on an approved I-130 peti-
tion. He had not asked the IJ for reopening based on the form and
so the IJ did not err by not addressing it. Finally, the BIA noted that
Murillo-Juarez’s motion to reopen was untimely and there were no
exceptional circumstances warranting the exercise of its discretion
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6 Opinion of the Court 22-12647
to reopen sua sponte his proceedings. Murillo-Juarez petitioned
our Court for review of the BIA’s decision.
II.
We review only the decision of the BIA, except to the extent
that the BIA expressly adopts the IJ’s decision. Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Where the BIA
agrees with the IJ’s reasoning, we will also review the IJ’s decision
to that extent. Id. But because the BIA did not expressly adopt the
IJ’s decision or agree with the IJ’s reasoning, we review only the
BIA’s decision. See id.
We review the denial of a motion to reopen and rescind an
immigration proceeding for an abuse of discretion. Jiang v. U.S.
Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). An abuse of dis-
cretion occurs where the BIA exercised its discretion arbitrarily or
capriciously. Id. We review de novo the BIA’s legal determina-
tions and interpretations of law. Castillo-Arias v. U.S. Att’y Gen.,
446 F.3d 1190, 1195 (11th Cir. 2006).
III.
8 U.S.C. § 1229 governs the initiation of removal proceed-
ings against an alien who has been charged as removable for being
present in the United States without being admitted or paroled.
See also 8 U.S.C. § 1182(a)(6)(A)(i) (governing inadmissibility). An
alien will be removed in absentia if he fails to attend the removal
hearing after being issued “written notice required under para-
graph (1) or (2) of section 1229(a),” 8 U.S.C. § 1229a(b)(5)(A), and
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22-12647 Opinion of the Court 7
the government shows by “clear and convincing evidence” that the
alien is “deportable,” id. § 1229a(c)(3)(A). Section 1229(a)(1) re-
quires the alien to be issued a written notice to appear specifying,
among other things, the time and place of his removal hearing and
the consequences for failing to attend it. Id. § 1229(a)(1). If the
time and place of the hearing are changed or postponed,
§ 1229(a)(2) requires the alien to be issued written notice specifying
the new time and place and the consequences for failing to appear.
Id. § 1229(a)(2).
The notice requirements under paragraphs (1) or (2) provide
alternatives — only one type of notice is required. See Drago-
mirescu v. U.S. Att’y Gen., 44 F.4th 1351, 1354–55 (11th Cir. 2022).
If the hearing is never changed or postponed, all that is required is
an NTA complying with § 1229(a)(1). See Dacostagomez-Aguilar
v. U.S. Att’y Gen., 40 F.4th 1312, 1317 (11th Cir. 2022). “The gov-
ernment must show that one notice or the other was provided —
not both — to support an in absentia removal order.” Id.
If the alien was issued the required NTA and failed to appear
at his removal hearing, the IJ may remove him in absentia. 8 U.S.C.
§ 1229a(b)(5)(A). An in absentia removal order may be rescinded
upon a motion to reopen either (i) filed within 180 days, “if the al-
ien shows that the failure to appear was because of exceptional cir-
cumstances” or (ii) “filed at any time if the alien demonstrates that
the alien did not receive notice in accordance with paragraph (1) or
(2) of section 1229(a).” Id. § 1229a(b)(5)(C)(i)-(ii).
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8 Opinion of the Court 22-12647
Murillo-Juarez argues that he did not receive notice under 8
U.S.C. § 1229(a) because, he claims, he never received the notice of
hearing sent to the Miami address. But whether Murillo-Juarez re-
ceived the notice of hearing is irrelevant. That’s because Murillo-
Juarez was personally served with an NTA containing the same in-
formation as the notice of hearing — a fact he does not dispute.
That NTA complied with § 1229(a)(1): it provided the time, date,
and location of his hearing, as well as the consequences for failing
to attend it. And Murillo-Juarez signed and put his fingerprint on
the NTA. 4
“The notice required to render an in absentia removal lawful
is the notice for the particular hearing that was missed.” Da-
costagomez-Aguilar, 40 F.4th at 1314. Here, the NTA Murillo-Jua-
rez received and signed provided notice of the particular hearing
he missed. That hearing was never changed or postponed, and the
later issued notice of hearing only reiterated the information con-
tained in the NTA. Because the government must show “that one
4 Murillo-Juarez’s argument about the notice of hearing fails for another rea-
son. Non-citizens have an affirmative duty to provide written notification of
a change in address. 8 U.S.C. § 1305(a). If an alien fails to update his address,
no notice is required. 8 U.S.C. § 1229a(b)(5)(B). Because Murillo-Juarez never
provided an updated address, his alleged failure to receive the notice of hear-
ing does not mean he was deprived of any notice required under § 1229(a).
See Dragomirescu, 44 F.4th at 1356–57 (“[A]n alien can be removed in absentia
without notice of his removal hearing’s time and place if, after receiving an
initial notice to appear advising him to keep his address up-to-date, the alien
moves and fails to inform DHS of his new address.”).
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22-12647 Opinion of the Court 9
notice or the other was provided — not both — to support an in
absentia removal order,” id. at 1317, it has shown that Murillo-Jua-
rez was issued all of the notice required under § 1229(a). As a result,
the BIA did not err in affirming the IJ’s order finding that Murillo-
Juarez received notice of his removal hearing, making his petition
untimely.5 See 8 U.S.C. § 1229a(b)(5)(C)(i)–(ii).
Murillo-Juarez entered this country unlawfully 19 years
ago. He has shown no ground for staying any longer.
PETITION DENIED.
5 By failing to adequately argue these issues in his brief to this Court, Murillo-
Juarez has abandoned any challenges to: the BIA’s refusal to exercise its sua
sponte authority to reopen his removal proceedings; and its rejection of his
request for asylum and withholding of removal based on changed country
conditions. See Kazemzadeh, 577 F.3d at 1341 (explaining that, when a peti-
tioner “makes only a passing reference in his brief” to an argument, that argu-
ment is treated as abandoned).
Although Murillo-Juarez’s brief references the I-130 application and the
changed country conditions being “brushed” off by the BIA, he makes no sub-
stantive arguments as to how BIA abused its discretion or acted arbitrarily or
capriciously in its findings on these issues, which also were not clearly raised
before the IJ. See Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009)
(noting that a simple statement “that an issue exists, without further argument
or discussion, constitutes abandonment of that issue and precludes [this
Court’s] considering the issue on appeal”). Instead, the only arguments he
properly preserved for appeal concern his alleged lack of notice for the re-
moval hearings, which fail.
Samuel Antonio Murillo-Juarez v. U.S. Attorney General
Combined Opinion