Amaya-Ventura v. Garland

Case: 20-61076 Document: 00516402509 Page: 1 Date Filed: 07/21/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 21, 2022 No. 20-61076 Lyle W. Cayce Summary Calendar Clerk Dinora Amaya-Ventura, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of the Order of the Board of Immigration Appeals BIA No. A079 035 023 Before King, Costa, and Ho, Circuit Judges. Per Curiam:* Dinora Amaya-Ventura petitions for review from a decision of the Board of Immigration Appeals dismissing her appeal and upholding the denial of her motion to reopen removal proceedings. For the following reasons, we DENY the petition for review. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-61076 Document: 00516402509 Page: 2 Date Filed: 07/21/2022 No. 20-61076 Dinora Amaya-Ventura is a native and citizen of El Salvador. Following an earthquake in El Salvador, she and her sister entered the United States through the Texas border without inspection on May 7, 2001, where they were quickly apprehended by border patrol agents. Amaya-Ventura was then questioned by the agents, read her rights and obligations in Spanish, and, after being provided papers in English containing immigration information, was released into the custody of her older sister. Either Amaya-Ventura or her sister provided an address in Texas where they could be reached. On that date, Amaya-Ventura was additionally provided with a Notice to Appear at removal proceedings. That Notice did not specify a time or date for the proceedings. Instead, a later Notice of Hearing stating that Amaya-Ventura’s hearing was scheduled for April 29, 2002, was mailed to the Texas address that had previously been provided to immigration officials. However, by that time, Amaya-Ventura and her sister had already left Texas to live with a third sister in New Jersey. The Notice of Hearing was returned undelivered to the immigration court and was marked as “Returned to Sender—No Such Number.” On April 29, 2002, the immigration hearing proceeded as scheduled but without Amaya-Ventura being present; she was ordered removed to El Salvador in absentia. Notice of that decision was mailed to the same Texas address and again returned as undeliverable. On February 28, 2019, Amaya-Ventura filed a motion to reopen her removal proceedings through counsel asserting that she lacked notice of the original proceedings and that extraordinary circumstances warranted reopening the proceedings. She sought reopening so that she could apply for asylum or cancellation of removal and suggested that changed country conditions in El Salvador would allow her to maintain a viable asylum claim. She also maintained that she was entitled to equitable tolling of the time limit required to file a motion to reopen due to extraordinary circumstances presented by the lack of notice and her diligence in pursuing her case, which 2 Case: 20-61076 Document: 00516402509 Page: 3 Date Filed: 07/21/2022 No. 20-61076 …

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