Case: 19-60489 Document: 00515913475 Page: 1 Date Filed: 06/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 24, 2021
No. 19-60489 Lyle W. Cayce
Summary Calendar Clerk
Terna Andrew Ityonzughul,
Petitioner,
versus
Merrick B. Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 426 822
Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.
Per Curiam:*
Terna Andrew Ityonzughul, a native and citizen of Nigeria, petitions
for review of orders by the Board of Immigration Appeals (BIA) denying his
motion to reopen and for reconsideration. On appeal, he presents claims that
pertain to whether he demonstrated extraordinary circumstances warranting
*
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opinion should not be published and is not precedent except under the limited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. 19-60489
reopening and rescission of his in absentia order of removal, whether he is
entitled to a remand to file an application for cancellation of removal, and
whether he has newly discovered evidence warranting reopening.
We review the denial of a motion to reopen or reconsider under a
highly deferential abuse-of-discretion standard. Lowe v. Sessions, 872 F.3d
713, 715 (5th Cir. 2017). We also review the denial of a remand for an abuse
of discretion. Milat v. Holder, 755 F.3d 354, 365 (5th Cir. 2014). We review
the BIA’s decision and consider the immigration judge’s decision only to the
extent it influenced the BIA. Singh v. Sessions, 880 F.3d 220, 224 (5th Cir.
2018).
The BIA did not abuse its discretion in determining that Ityonzughul
failed to demonstrate the existence of extraordinary circumstances
warranting reopening and rescission of his in absentia order of removal. An
in absentia order of removal may be rescinded if the alien demonstrates that
the failure to appear was due to exceptional circumstances. 8 U.S.C.
§ 1229a(b)(5)(C)(i). Although ineffective assistance of counsel may
constitute an exceptional circumstance under § 1229a(b)(5)(C)(i),
Ityonzughul has failed to demonstrate that counsel performed deficiently.
See Galvez-Vergara v. Gonzales, 484 F.3d 798, 801-02 (5th Cir. 2007).
Despite his claim that when he called the office of his former attorney, he was
informed of an incorrect hearing date, the record also reflects that
Ityonzughul was given the notice of the hearing by his former attorney and
that the attorney informed him of the correct hearing date on multiple
occasions. Additionally, while Ityonzughul is correct that his former attorney
mistakenly referred to a notice to appear rather than a notice of hearing, this
mistake is inconsequential because the October 23, 2012, hearing date was
only contained in a December 22, 2011, notice of hearing sent to his former
attorney. The BIA also did not disregard its own precedent because
Ityonzughul was not required to demonstrate prejudice to succeed on his
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ineffective-assistance claim; instead the BIA rejected this claim because he
failed to demonstrate that his former attorney performed deficiently.
Accordingly, the BIA did not abuse its discretion in denying the motion to
reopen.
The BIA did not abuse its discretion in determining that Ityonzughul
was not entitled to reopening based on newly discovered evidence. “A
motion to reopen proceedings shall not be granted unless it appears to the
[BIA] that evidence sought to be offered is material and was not available and
could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c)(1). Because the evidence that Ityonzughul sought to
introduce was part of the administrative record, it could have been
discovered prior to the filing of his initial motion to reopen. Moreover,
Ityonzughul has offered no explanation why he could not have presented his
evidence in his initial motion to reopen. Accordingly, the BIA did not abuse
its discretion in denying the motion for reconsideration.
Next, to the extent that Ityonzughul argues that his removal order is
invalid because he never received the notice to appear, this claim is
unexhausted and therefore we lack jurisdiction to address it. See Wang v.
Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
Lastly, however, Ityonzughul is correct in his argument that the BIA
abused its discretion in determining that he was statutorily ineligible for
cancellation of removal. Cancellation may be available to applicants who
have been continuously present in the United States for ten or more years
prior to filing an application, who can establish good moral character during
that time, who have no disqualifying convictions, and whose spouse,
children, or parent would suffer exceptional and extremely unusual hardship
if the applicant were removed. 8 U.S.C. § 1229b(b)(1). Pursuant to the “stop
time” rule, the period of continuous physical presence is deemed to end
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No. 19-60489
when an applicant is served a notice to appear. 8 U.S.C. § 1229b(d)(1)(A).
While the failure to specify the time and date of an initial hearing does not
render a notice to appear defective and does not deprive the immigration
court of jurisdiction, See Pierre-Paul v. Barr, 930 F.3d 684, 689-90, 693 (5th
Cir. 2019), abrogated in part on other grounds by Niz-Chavez v. Garland, __
U.S. __, 141 S. Ct. 1474 (2021), the Supreme Court recently held that a
“notice to appear” sufficient to trigger the “stop time” rule must be a single
document containing the requisite information set out by statute. Niz-
Chavez, 141 S. Ct. at 1485.
Ityonzughul argues that he has more than ten years of continuous
physical presence in the United States because the subsequent service of a
notice of hearing after the receipt of an invalid notice to appear did not trigger
the “stop time” rule. Per Niz-Chavez, Ityonzughul is correct. Because he
received two documents—the notice of hearing containing the information
missing from the notice to appear—and neither document was independently
sufficient to trigger the “stop time rule,” Ityonzughul may be eligible for
cancellation of removal. Thus, we remand to the BIA to determine whether
Ityonzughul is eligible for cancellation.
* * *
Based upon the foregoing, the petition for review is DENIED in part,
DISMISSED in part, and GRANTED in part. We REMAND to the BIA
for further proceedings consistent with this opinion.
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