Case: 19-60445 Document: 00515767565 Page: 1 Date Filed: 03/05/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 5, 2021 No. 19-60445 Lyle W. Cayce Clerk Melvin Antonio Martinez-Murillo, Petitioner, versus Robert M. Wilkinson, Acting U.S. Attorney General, Respondent. Petition for Review of the Order of the Board of Immigration Appeals BIA No. A078 972 473 Before Higginbotham, Costa, and Oldham, Circuit Judges. Per Curiam:* Melvin Antonio Martinez-Murillo, a native and citizen of Honduras, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s (“IJ”) denial of his motion to reopen his in absentia order of removal. He contends that the BIA * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 19-60445 Document: 00515767565 Page: 2 Date Filed: 03/05/2021 No. 19-60445 and IJ erred in finding that he was provided with proper notice of his removal proceedings. We deny his petition for review. I Martinez-Murillo entered into the United States on February 13, 2002, where he was apprehended by U.S. authorities and served with a notice to appear (“NTA”) charging him as removable from the United States pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). He was released on bond and went to reside at a Houston address, which he provided to the immigration court. Martinez-Murillo was served through counsel with a notice of hearing (“NOH”) scheduling his hearing in Harlingen, Texas. Martinez-Murillo filed a motion to change venue to Houston, which was granted. According to Martinez-Murillo, no subsequent NOH ever arrived at his Houston address. He did not attend his hearing before the Houston immigration court where the IJ ordered him removed in absentia. Twelve years later, Martinez-Murillo hired a lawyer and filed a Freedom of Information Act (“FOIA”) request to obtain his immigration file whereupon he discovered the 2002 removal order. He then moved to reopen removal proceedings in 2017, arguing that he was not provided with requisite notice. The IJ denied Martinez-Murillo’s motion. He appealed to the BIA. While his appeal was pending, the Supreme Court issued its opinion in Pereira v. Sessions, 1 and Martinez-Murillo filed a motion to remand for consideration of prima facie eligibility for cancellation of removal under 8 U.S.C. § 1229b(b) because his NTA did not state the time and place of his hearing. The BIA denied Martinez-Murillo’s motion to remand and dismissed his appeal. Martinez-Murillo filed a petition for review. He argues the BIA erred in finding that he failed to overcome the presumption that he 1 138 S. Ct. 2105 (2018). 2 Case: 19-60445 Document: 00515767565 Page: 3 Date Filed: 03/05/2021 No. 19-60445 received the Houston NOH and that he was ineligible for cancellation of removal pursuant to Pereira. II This Court applies “a highly deferential abuse-of-discretion standard in reviewing the denial of a motion to reopen …
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