Case: 20-61029 Document: 00516229630 Page: 1 Date Filed: 03/08/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 8, 2022
No. 20-61029 Lyle W. Cayce
Summary Calendar Clerk
Jose Ramiro Martinez-Galeas,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 653 465
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Jose Ramiro Martinez-Galeas, a native and citizen of Honduras,
petitions for review of a decision of the Board of Immigration Appeals (BIA)
dismissing his appeal from an order of the immigration judge (IJ) that denied
his motion to reopen removal proceedings. He argues that, counter to the
*
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opinion should not be published and is not precedent except under the limited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. 20-61029
BIA’s finding, the record contains sufficient evidence to rebut the
presumption that he received notice of the time and location of his removal
proceedings. We DENY Martinez-Galeas’s petition for review.
I. BACKGROUND
On an unknown date prior to December 3, 2007, Martinez-Galeas
entered the United States. On December 3, 2007, Border Patrol agents
encountered Martinez-Galeas travelling on a highway and detained him,
charging him under section 212(a)(6)(A)(i) of the Immigration and
Nationality Act (“INA”). 1 The Notice to Appear, with which Martinez-
Galeas was personally served, contained the following residential
handwritten address on it: “6117 Gulf Freeway #1454 Houston, TX 77023.”
The Notice to Appear ordered Martinez-Galeas’s appearance at the
Executive Office for Immigration Review on “a date to be set,” and
Martinez-Galeas was provided oral notice in Spanish of the consequences of
his failure to appear. However, the Form I-213 Record of
Deportable/Inadmissible Alien for Martinez-Galeas’s case, also dated
December 3, 2007, and signed by the same immigration officer as the Notice
to Appear, Harold W. Gill, has a different address on it: “7910 Bellaire 653
Houston, Texas 77036.”
A Notice of Hearing was sent to the 6117 Gulf Freeway address as
printed on the Notice to Appear, but the envelope was returned as
undeliverable. On February 20, 2008, the scheduled removal hearing was
held, and the next day the IJ issued a decision ordering Martinez-Galeas
removed in absentia. This too was mailed to the 6117 Gulf Freeway address
and was returned as undeliverable.
1
8 U.S.C. § 1182(a)(6)(A)(i).
2
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Over nine years passed. On August 30, 2017, Martinez-Galeas and his
wife met with counsel to discuss his immigration status and allegedly found
out for the first time that he had been ordered removed. On September 2,
2017, Martinez-Galeas filed a request under the Freedom of Information Act,
and the request revealed that the Notice of Hearing and removal order were
sent (unsuccessfully) to the 6117 Gulf Freeway address.
On October 15, 2019, Martinez-Galeas filed a motion to reopen his
removal proceedings pursuant to INA § 240(b)(5)(C)(ii) 2 and 8 C.F.R
§ 1003.23(b)(4)(ii). The IJ denied the motion because it was “filed 12 years
after [the] removal order” and “no exceptional circumstances” were found
because the “notice [was] sent to [the] address provided by respondent.”
Martinez-Galeas appealed to the BIA, requesting that the BIA vacate the
decision of the IJ and exercise its sua sponte authority under 8 C.F.R.
§ 1003.2(a) to reopen the case. The BIA dismissed the appeal for the
following reasons: (1) Martinez-Galeas “was personally served with the
notice to appear,” (2) “[t]he notice to appear contains the address that the
DHS had for the respondent, to which the hearing notice was later sent,”
(3) the Notice to Appear requires petitioners to provide the DHS with their
“full mailing address and telephone phone number,” and (4) because
Martinez-Galeas was personally served with the notice to appear he “was on
notice of his obligation to provide a correct address to the Immigration
Court.”
II. STANDARD OF REVIEW
We apply a highly deferential abuse-of-discretion standard in
reviewing the denial of a motion to reopen removal proceedings. Gomez-
Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). As long as the BIA’s
2
8 U.S.C. § 1229a(b)(5)(C)(ii).
3
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decision is “not capricious, without foundation in the evidence, or otherwise
so irrational that it is arbitrary rather than the result of any perceptible
rational approach,” we must affirm it. Id.
This court reviews the BIA’s decision and will consider the
underlying decision of the IJ only if it influenced the determination of the
BIA. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). When,
as here, the BIA affirms the decision of the IJ and relies on reasoning set forth
in the IJ’s decision, this court reviews the IJ’s decision to the extent that it
impacted the BIA’s decision. See Theodros v. Gonzales, 490 F.3d 396, 400 (5th
Cir. 2007).
III. MOTION TO REOPEN
Martinez-Galeas contends that the BIA abused its discretion in
determining that the record contains insufficient evidence to rebut the
presumption that he did receive notice. The appeal contains both statutory
and regulatory challenges. 3
A. Statutory Grounds to Reopen
Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii), an in absentia removal
order 4 may be rescinded “upon a motion to reopen filed at any time if the
3
We note that neither the IJ, nor the BIA explicitly analyzed the statutory grounds
of the motion to reopen. The statutory and regulatory law regarding rescission of a removal
order, however, involve nearly identical language. Compare 8 U.S.C. § 1229a(b)(5)(C)(ii),
with 8 C.F.R § 1003.23(b)(4)(ii).
4
Under 8 U.S.C. § 1229a(b)(5)(A), an alien who fails to attend a hearing after
written notice has been provided to the alien or the alien’s counsel of record shall be
ordered removed in absentia if the government establishes by “clear, unequivocal, and
convincing evidence” that the written notice was so provided and that the alien is
removable. The government satisfies the notice requirement for obtaining a removal order
when it gives proper notice at the most recent mailing address the alien
4
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alien demonstrates that the alien did not receive notice in accordance with
paragraph (1) or (2) of section 1229(a) of this title.” Paragraph (1) of
§ 1229(a) requires that notice of a removal hearing be given in person, or by
mail if personal service is not practicable. Id. § 1229(a)(1). The notice must
specify the “time and place at which the proceedings will be held” and the
“consequences under section 1229a(b)(5) of this title of the failure, except
under exceptional circumstances, to appear at such proceedings.” Id.
§ 1229(a)(1)(G)(i)–(ii). 5
Paragraph (2) of § 1229(a) states that, in the case of any change in the
time and place of removal proceedings following the original provision of
notice, written notice must be given in person, or by mail if personal service
is not practicable, specifying the new time or place of the proceedings and the
consequences of failing to attend. 8 U.S.C. § 1229(a)(2)(A). However,
paragraph (2) provides an exception: “In the case of an alien not in detention,
a written notice shall not be required under this paragraph if the alien has
failed to provide the address required.” Id. § 1229(a)(2)(B).
The facts here are analogous to cases involving typographical errors in
Notice-to-Appear addresses. In Mauricio-Benitez v. Sessions, 908 F.3d 144,
provided. Id. However, no written notice is required if the alien failed to provide a current
mailing address. Id. § 1229a(b)(5)(B).
5
The notice must also specify the nature of the proceedings against the alien; the
legal authority under which the proceedings are conducted; the acts or conduct alleged to
be in violation of law; the charges against the alien and the statutory provisions alleged to
have been violated; and the alien’s right to counsel. 8 U.S.C. § 1229(a)(1)(A)–(E). Lastly,
the notice must specify the alien’s obligation to immediately provide the government with
a written record of an address and telephone number (if any) at which he may be contacted
regarding the proceedings; the alien’s obligation to immediately apprise the government of
any change in his address or telephone number; and the “consequences under section
1229a(b)(5) of this title of failure to provide address and telephone information.” Id.
§ 1229(a)(1)(F)(i)–(iii).
5
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149 (5th Cir. 2018), for example, the petitioner “was personally served with
a [Notice to Appear] listing a mailing address that he contends was
misspelled.” We held that “he had notice of the error in his address upon
receipt of the [Notice to Appear].” The same reasoning applies here.
Although the record shows two addresses on immigration documents signed
by the same immigration officer on the same day, Martinez-Galeas, like the
petitioner in Mauricio-Benitez, was personally served with (and signed) a
Notice to Appear bearing an erroneous address. Thus, he was on notice of
the error. Because Martinez-Galeas “has failed to provide the address
required” pursuant to 8 U.S.C. § 1229(a)(2)(B), the immigration court need
not have provided “written notice . . . specifying the . . . new time or place of
the proceedings.” 8 U.S.C. § 1229(a)(2)(A).
B. Regulatory Grounds to Reopen
The Code of Federal Regulations provides that an immigration judge
may “reopen or reconsider any case in which he or she has rendered a
decision.” 8 C.F.R. § 1003.23(b)(1). The Code of Federal Regulations has a
similar provision for the BIA’s ability to reopen a case before it. 8 C.F.R.
§ 1003.2(a). However, “we lack jurisdiction to review the BIA’s decision to
decline sua sponte reopening.” Hernandez-Castillo, 875 F.3d at 206
(discussing both immigration judges’ and the BIA’s regulatory authority).
IV. CONCLUSION
For the foregoing reasons, Martinez-Galeas’s petition for review is
DENIED.
6