Case: 22-60316 Document: 00516666873 Page: 1 Date Filed: 03/06/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-60316 Summary Calendar FILED ____________ March 6, 2023 Lyle W. Cayce Fredy Leo Pena-Lopez, Clerk Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. ______________________________ Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098 404 574 ______________________________ Before Stewart, Duncan, and Wilson, Circuit Judges. Per Curiam: * Fredy Leo Pena-Lopez, a native and citizen of El Salvador, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his motion to reopen his removal proceedings and rescind an in absentia removal order. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-60316 Document: 00516666873 Page: 2 Date Filed: 03/06/2023 No. 22-60316 “Motions to reopen removal proceedings are disfavored.” Mauricio- Benitez v. Sessions, 908 F.3d 144, 147 (5th Cir. 2018). The denial of a motion to reopen is reviewed “under a highly deferential abuse-of-discretion standard.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014) (internal quotation marks and citation omitted). Accordingly, this court will affirm the BIA’s decision unless it is “capricious, irrational, utterly without foundation in the evidence, based on legally erroneous interpretations of statutes or regulations, or based on unexplained departures from regulations or established policies.” Id. Relying on the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), Pena-Lopez argues that he did not receive proper statutory notice because his Notice to Appear (NTA) did not list a time or date for his removal hearing. The Government responds that Pena-Lopez was not entitled to recission of his removal order based on Niz-Chavez because he forfeited his right to written notice when he failed to provide the immigration court with a valid mailing address. The Supreme Court held in Niz-Chavez that 8 U.S.C. § 1229(a)’s written notice requirements must be provided in a single document to trigger the stop-time rule. 141 S. Ct. at 1480. This court has since held that Niz- Chavez’s interpretation of § 1229(a)’s notice requirements “applies in the in absentia context.” Rodriguez v. Garland, 15 F.4th 351, 355 (5th Cir. 2021). The BIA acknowledged Rodriguez in its decision denying Pena- Lopez’s motion to reopen, but it found that Rodriguez did not dispose of the case. Instead, the BIA relied on Spagnol-Bastos v. Garland, 19 F.4th 802 (5th Cir. 2021), and found that Pena-Lopez had forfeited the right to written notice of his removal hearing by failing to provide a valid address where the immigration court could mail the notice. 2 Case: 22-60316 Document: 00516666873 Page: 3 Date Filed: 03/06/2023 No. 22-60316 Pena-Lopez argues that Spagnol-Bastos does not govern his case because there was no similar forfeiture of his right to receive written notice given that “he did provide an address on his NTA.” But the alien in Spagnol- Bastos also provided his address to immigration authorities, which was incorrectly recorded …
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