Case: 20-61050 Document: 00516386607 Page: 1 Date Filed: 07/08/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 8, 2022 No. 20-61050 Lyle W. Cayce Clerk Wilmer Gudiel-Villatoro, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of the Order of the Board of Immigration Appeals BIA No. A098 987 009 Before King, Elrod, and Southwick, Circuit Judges. Per Curiam: Petitioner, a native and citizen of Guatemala, petitions for review from a decision of the Board of Immigration Appeals dismissing his appeal and upholding the denial of his motion to reopen removal proceedings. Because petitioner fails to show any error by the BIA, we DENY the petition for review. Petitioner crossed the Texas border into the United States on May 10, 2005. He was apprehended the following day, and DHS served him personally with a notice to appear charging that he was subject to removal for Case: 20-61050 Document: 00516386607 Page: 2 Date Filed: 07/08/2022 No. 20-61050 failure to be admitted or paroled. The notice to appear ordered him to appear in immigration court for his removal hearing “on a date to be set at a time to be set.” It further stated that petitioner was required to give an address at which he can be reached, that failure to provide an address waives an entitlement to notice of the removal hearing, and that failure to attend the removal hearing could result in removal in absentia. Upon being released on his own recognizance, petitioner moved to Connecticut without ever providing an address. Accordingly, an Immigration Judge ordered petitioner removed in absentia at a hearing on June 14, 2005. Over fourteen years later, petitioner moved to reopen proceedings and rescind his in absentia order. Now on petition for review, petitioner claims that he did not receive adequate notice of his removal proceedings. He says that his notice to appear was deficient because it did not include the date and time of his removal hearing. And he alleges that the BIA failed to consider evidence, including his own affidavit, that he did not receive adequate notice of his removal proceedings more generally. This court reviews the denial of motions to reopen under a highly deferential abuse-of-discretion standard. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). The BIA’s decision will be upheld unless it is “capricious, racially invidious, utterly without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rational approach.” Id. at 304 (citation omitted). We review the BIA’s conclusions of law de novo and its findings of fact for substantial evidence. See Morales v. Sessions, 860 F.3d 812, 816–17 (5th Cir. 2017); Zhao, 404 F.3d at 306. Petitioner is incorrect that his notice to appear needed to include the date and time of his removal proceeding. Following the Supreme Court’s decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), this court has held 2 Case: 20-61050 Document: …
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