15 F.4th 351
5th Cir.2021Background
- Marcelo Rodriguez, a Uruguayan national, became a conditional permanent resident after marrying a U.S. citizen.
- On Jan. 30, 2018 an NTA was served at his Pasadena address that did not state the time or date of the removal hearing.
- A subsequent notice of hearing (NOH) with time/place was mailed to that address, but Rodriguez claims he had moved to Georgetown and did not receive it.
- Rodriguez failed to appear at the March 12, 2018 hearing and was ordered removed in absentia.
- He moved to reopen and rescind the in absentia order under 8 U.S.C. § 1229a(b)(5)(C)(ii), arguing the NTA alone was deficient under Pereira and that the notice requirement must be in a single document per Niz-Chavez.
- The IJ denied reopening; the BIA affirmed, holding the NTA plus NOH cured the defect. The Fifth Circuit vacated the BIA’s decision and remanded, finding the BIA misapplied § 1229(a) as interpreted in Niz-Chavez.
Issues
| Issue | Rodriguez's Argument | Garland's Argument | Held |
|---|---|---|---|
| Whether § 1229(a) requires a single written document containing all required information for rescission of an in absentia removal order | The initial NTA without time/date is invalid; § 1229(a) requires "a" single written notice (Niz-Chavez), so the NOH cannot cure the defective NTA | The NTA plus a later NOH together satisfy § 1229(a); prior precedent allowed a two-step notice process | The BIA misapplied the law; Niz-Chavez requires a single document containing all required information for § 1229(a) purposes—vacated and remanded |
Key Cases Cited
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (U.S. 2021) (§ 1229(a) requires a single written notice containing all required information)
- Pereira v. Sessions, 138 S. Ct. 2105 (U.S. 2018) (a notice missing time/place is not a § 1229(a) notice for stop-time rule purposes)
- Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019) (previous Fifth Circuit decision permitting cure of a defective NTA by later NOH)
- Maniar v. Garland, 998 F.3d 235 (5th Cir. 2021) (distinguishing provisions that do not reference § 1229(a) from those that do)
- Mauricio-Benitez v. Sessions, 908 F.3d 144 (5th Cir. 2018) (holding Pereira limited to stop-time rule context)
- Barrios-Cantarero v. Holder, 772 F.3d 1019 (5th Cir. 2014) (standards for BIA abuse of discretion)
- Hernandez-Castillo v. Sessions, 875 F.3d 199 (5th Cir. 2017) (review standard for motions to reopen)