40 F.4th 247
5th Cir.2022Background:
- Petitioner Wilmer Gudiel-Villatoro, a Guatemalan national, entered the U.S. on May 10, 2005; DHS personally served him a Form I-862 Notice to Appear that did not list a specific hearing date/time.
- The notice informed him to provide a contact address and warned that failure to provide an address could waive notice rights and that failure to appear could lead to in absentia removal.
- After release, petitioner moved to Connecticut and never provided or updated any address; an IJ ordered him removed in absentia on June 14, 2005.
- Over 14 years later petitioner moved to reopen and rescind the in absentia order, arguing inadequate notice (invoking Niz-Chavez) and that the BIA ignored his affidavit and identity evidence.
- The BIA denied reopening; the Fifth Circuit reviews that denial for abuse of discretion and denies the petition for review.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Niz-Chavez requires a valid notice to include hearing date/time so petitioner may reopen at any time | Gudiel-Villatoro: notice was defective for lacking date/time, so reopening is available at any time | Garland: even if Niz-Chavez applies, petitioner forfeited notice by failing to provide a viable address | Held: Niz-Chavez rule does not help petitioner because he never provided any address and thus forfeited notice rights |
| Whether the BIA failed to consider petitioner’s affidavit and identity evidence | Gudiel-Villatoro: BIA ignored his affidavit that officers didn’t explain proceedings or request address and ignored proof of true name/citizenship | Garland: BIA reviewed the record, credited I-213 and the notice bearing petitioner’s fingerprint/signature, and noted petitioner admitted using a false name/country | Held: BIA adequately considered the record; its conclusion that notice was proper is supported by the evidence |
| Whether denial of reopening violated due process | Gudiel-Villatoro: insufficient notice and BIA’s treatment violated due process | Garland: motion to reopen is discretionary; petitioner forfeited notice; BIA’s findings are supported by substantial evidence | Held: No due-process violation; no liberty interest in discretionary reopening and substantial evidence supports BIA’s decision |
Key Cases Cited:
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (Supreme Court clarifying notice-to-appear requirements)
- Rodriguez v. Garland, 15 F.4th 351 (5th Cir. 2021) (applying Niz-Chavez to reopening timing)
- Spagnol-Bastos v. Garland, 19 F.4th 802 (5th Cir. 2021) (address requirement forfeits right to written notice)
- Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005) (abuse-of-discretion standard for motions to reopen)
- Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002) (agency must announce decisions sufficiently to show consideration of issues)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (discretionary nature of motions to reopen and related due-process discussion)