Case: 21-60195 Document: 00516757363 Page: 1 Date Filed: 05/19/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED No. 21-60195 May 19, 2023 ____________ Lyle W. Cayce Clerk Dagoberto Luna, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. ______________________________ Petition for Review of an Order of the Board of Immigration Appeals Agency No. A076 839 445 ______________________________ Before Higginbotham, Southwick, and Willett, Circuit Judges. Per Curiam: * Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 21-60195 Document: 00516757363 Page: 2 Date Filed: 05/19/2023 No. 21-60195 FACTUAL AND PROCEDURAL BACKGROUND Dagoberto Luna, a native and citizen of Mexico, entered the United States without possessing a valid visa, reentry permit, border crossing card, or other entry document. According to Luna, he entered the United States in 1997 and applied for adjustment of status, which was denied in 2002. A Notice to Appear (NTA) was sent to him on June 26, 2003, via regular mail, that informed him that he was removable pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). The NTA informed Luna that he was to appear for a removal hearing at an immigration court in Houston and warned him of the consequences of failing to appear. The NTA stated that the hearing date and time were “[t]o be calendared and notice provided by the office of the Immigration Judge.” A notice of hearing (NOH) was mailed to the same address as the NTA, informing Luna that his hearing was scheduled for November 13, 2003, at 8:30 a.m. Luna failed to appear, and the immigration judge (IJ) conducting the hearing ordered him, in absentia, to be removed to Mexico. In September 2018, Luna filed a motion to rescind the removal order and to reopen his immigration proceedings. Luna asserted he received neither the NTA nor the NOH. In addition, he asserted his evidence rebutted any presumption of delivery. Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Luna also argued that the NTA was defective because it failed to specify the date and time of the hearing. Also pursuant to Pereira, Luna argued he was prima facie eligible for cancellation of removal. In the alternative, Luna requested that the IJ reopen the proceedings sua sponte due to changes in the law wrought by Pereira. In December 2019, the IJ denied Luna’s motion. The IJ determined that Pereira was limited in scope and did not hold that an invalid NTA deprives the IJ of jurisdiction. Further, the IJ found that Luna had failed to 2 Case: 21-60195 Document: 00516757363 Page: 3 Date Filed: 05/19/2023 No. 21-60195 rebut the …
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