Case: 21-60867 Document: 00516577308 Page: 1 Date Filed: 12/13/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals No. 21-60867 Fifth Circuit Summary Calendar FILED December 13, 2022 Lyle W. Cayce Jose Omar Gonzalez-Aguilar, Clerk Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A212 918 888 Before Smith, Dennis, and Southwick, Circuit Judges. Per Curiam:* Jose Omar Gonzalez-Aguilar petitions for review of an order by the Board of Immigration Appeals. The order dismissed his appeal of an immigration judge’s removal order. We DISMISS in part and DENY in part. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-60867 Document: 00516577308 Page: 2 Date Filed: 12/13/2022 No. 21-60867 FACTUAL AND PROCEDURAL BACKGROUND Jose Omar Gonzalez-Aguilar, a native and citizen of Mexico, first entered the United States without inspection in 1998 near Laredo, Texas. He returned to Mexico briefly in 2010 following a Texas state conviction for driving while intoxicated (“DWI”). He again entered the country without inspection 15 days later. In 2017, after his second arrest for a DWI offense in Texas alerted immigration officials of his presence, Gonzalez-Aguilar was personally served with a Notice to Appear (“NTA”). He was charged with removability under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. The NTA ordered him to appear in immigration court at a date and time “[t]o be set.” The immigration court later mailed Gonzalez-Aguilar a Notice of Hearing (“NOH”), scheduling his master hearing for October 25, 2017. Gonzalez-Aguilar appeared without counsel at the scheduled hearing. The immigration judge (“IJ”) continued the hearing to allow him to retain counsel. At his next hearing, Gonzalez-Aguilar appeared with counsel, admitted the allegations in the NTA, and conceded he was removable as charged. He also stated his intention to file an application for cancellation of removal. On December 27, 2017, he filed for cancellation of removal under 8 U.S.C. § 1229b(b)(1). At the hearing on the application, Gonzalez-Aguilar’s attorney argued jurisdiction never vested in the immigration court because Gonzalez- Aguilar’s NTA failed to state the date and time of his removal hearing. Gonzalez-Aguilar testified he lived in Dallas, Texas, and worked in construction. He stated his wife was also undocumented but was not currently in immigration proceedings. Gonzalez-Aguilar testified that he and his wife had two children born in the United States: Cynthia, then age 13, and Edgar, age 12. 2 Case: 21-60867 Document: 00516577308 Page: 3 Date Filed: 12/13/2022 No. 21-60867 Gonzalez-Aguilar explained that his wife was the primary caretaker of the children and did not work, though she previously had a job cleaning houses. If he were removed to Mexico, his children would remain in the United States with his wife. He confirmed, however, that his wife …
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