28 F.4th 644
5th Cir.2022Background
- Blas Eduardo Garcia, a Mexican national, entered the U.S. in 1994; received voluntary departure in 2001, reentered without inspection, and was served an NTA in 2004 that did not list a hearing date or time.
- An IJ ordered removal in 2007; the BIA affirmed in 2008; Garcia was deported in 2010 and later returned without inspection.
- In 2018 Garcia filed a motion to reopen arguing his NTA was defective under Pereira and §1229(a) for omitting date/time; the BIA denied the motion as time‑barred and relying on Pierre‑Paul.
- Garcia filed a second motion to reopen claiming changed country conditions and newly diagnosed HIV (arguing imputed homosexuality/HIV-positive status exposed him to persecution/torture); the BIA denied it as untimely and for failing to show material changed conditions or a prima facie entitlement to relief.
- The Fifth Circuit reviewed the BIA decisions for abuse of discretion (legal questions de novo; factual findings for substantial evidence) and denied both petitions for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an NTA that omits hearing date/time deprived the immigration court of jurisdiction / was defective under §1229(a) | Garcia: Pereira and §1229(a) require time/place in the original NTA; omission renders proceedings invalid | Government/BIA: Pierre‑Paul and Maniar hold regulations (not §1229(a)) govern what an NTA must include for a charging document; Niz‑Chavez limited to stop‑time/in‑absentia contexts | Denied — Fifth Circuit followed Pierre‑Paul/Maniar: NTA without time/date does not invalidate charging document here; Pereira/Niz‑Chavez do not extend to this context |
| Whether the BIA abused discretion in denying motion to reopen based on changed country conditions and HIV diagnosis | Garcia: Newly diagnosed HIV and recent reports show increased targeting of LGBT/HIV‑positive persons in Mexico, constituting materially changed country conditions excusing the time limit | Government/BIA: Motion untimely; submitted evidence shows continuation of prior trends, not a material change; personal diagnosis alone cannot establish changed country conditions or prima facie persecution/torture | Denied — substantial‑evidence supports BIA: Garcia failed to make the required meaningful comparison or show material change; personal circumstances alone insufficient |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (U.S. 2018) (NTA missing time/place does not trigger stop‑time rule)
- Niz‑Chavez v. Garland, 141 S. Ct. 1474 (U.S. 2021) (§1229(a) requires a single notice containing required information; subsequent notices cannot cure)
- Pierre‑Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) (regulations, not §1229(a), govern what an NTA must contain to be a valid charging document)
- Maniar v. Garland, 998 F.3d 235 (5th Cir. 2021) (reaffirmed Pierre‑Paul: NTA without date/time can be sufficient under regulations)
- Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021) (distinguished contexts where a statutory reference to §1229(a) requires single‑document compliance)
- Nunez v. Sessions, 882 F.3d 499 (5th Cir. 2018) (motion‑to‑reopen based on changed country conditions requires a meaningful comparison; continuation of trends is insufficient)