Case: 20-60655 Document: 00516129899 Page: 1 Date Filed: 12/14/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 14, 2021 No. 20-60655 Lyle W. Cayce Clerk William Ernesto Lemus-Ayala, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of the Order of the Board of Immigration Appeals Agency No. A206-800-385 Before Jolly, Willett, and Engelhardt, Circuit Judges. Per Curiam:* William Ernesto Lemus-Ayala seeks review of the Board of Immigration Appeals’ (BIA) decision denying his motion to reopen removal proceedings and rescind an in absentia removal order. We GRANT Lemus- Ayala’s petition, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-60655 Document: 00516129899 Page: 2 Date Filed: 12/14/2021 No. 20-60655 Lemus-Ayala, a citizen of El Salvador, entered the United States on June 12, 2014, at age five. The Department of Homeland Security (DHS) personally served him with a Notice to Appear (NTA) on June 15, alleging he was removable under 8 U.S.C. § 1182(a)(6)(A)(i). The NTA directed him to appear for his removal proceedings but did not specify the time, place, or date of such proceedings. Lemus-Ayala was released into the custody of his mother, Rosemery Zetino, who provided DHS with an address in the United States at which she and her son could be contacted. On October 13, 2017, DHS sent Lemus-Ayala another NTA via regular mail to the address provided, which remained his address of record. That NTA specified the location of his removal hearing, but not the time or date. On November 2, 2017, DHS mailed another NTA to the same address, this time informing Lemus-Ayala that his hearing was set for 10:00 a.m. on January 29, 2018. Lemus-Ayala did not appear at the hearing and was ordered removed in absentia under 8 U.S.C. § 1229a(b)(5)(A). On October 24, 2018, Lemus-Ayala moved to reopen proceedings and rescind the in absentia removal order on the ground that he did not receive proper notice of his hearing. The Immigration Judge (IJ) denied Lemus- Ayala’s motion because it was not accompanied by a fee receipt or an application for relief and, in the alternative, because Lemus-Ayala “did not demonstrate lack of notice.” Lemus-Ayala did not appeal the IJ’s decision to the BIA. On July 31, 2019, Lemus-Ayala filed another motion to reopen and rescind the in absentia removal order, again arguing that he was not properly notified of his removal hearing. He further argued that the lack of proper notice violated his due process rights and deprived the immigration court of jurisdiction over his removal proceedings. In the alternative, Lemus-Ayala also urged the IJ to reopen his proceedings sua sponte. The IJ denied Lemus- Ayala’s second motion, rejecting his jurisdictional, due-process, and notice 2 Case: 20-60655 Document: 00516129899 Page: 3 …
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