Case: 20-60737 Document: 00516203742 Page: 1 Date Filed: 02/15/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 15, 2022 No. 20-60737 Lyle W. Cayce Summary Calendar Clerk Kenedy Martins-Gadiole, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A200 030 630 Before Barksdale, Costa, and Engelhardt, Circuit Judges. Per Curiam:* Kenedy Martins-Gadiole, a native and citizen of Brazil, petitions for review of the Board of Immigration Appeals’ (BIA) affirming, without opinion, the denial of his motion to reopen and rescind his in-absentia removal order. * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-60737 Document: 00516203742 Page: 2 Date Filed: 02/15/2022 No. 20-60737 In 2005, Martins was served in person with a notice to appear before the Immigration Judge (IJ). Because he failed to appear, the IJ ordered him removed in absentia. In 2019, Martins filed a motion to reopen and rescind his in-absentia removal proceedings: on the basis he lacked proper notice of the hearing, under 8 U.S.C. § 1229a(b)(5)(C)(i)–(ii) (rescission of order for failure to appear); and to apply for cancellation of removal, under 8 U.S.C. § 1229a(c)(7) (motions to reopen removal proceedings). The IJ denied Martins’ motion and declined to reopen sua sponte. Martins asserts the IJ erred in failing to: evaluate all the evidence on whether he received notice to appear; give an adequate explanation for denying his motion to reopen to apply for cancellation of removal; and give an adequate explanation for declining to reopen sua sponte. Where, as here, the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision as the final agency decision. See Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006) (per curiam). Legal conclusions are reviewed de novo; factual findings, for substantial evidence. E.g., Orellana- Monson v. Holder, 685 F.3d 511, 517–18 (5th Cir. 2012). Under the substantial-evidence standard, “petitioner has the burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion”. Id. at 518 (citation omitted). Relying on Hernandez v. Lynch, 825 F.3d 266, 269–70 (5th Cir. 2016), Martins claims the IJ erred in finding his affidavit not credible because all relevant evidence submitted to overcome the presumption of notice was not considered. Hernandez, however, concerned presumption of notice via mail. Id. at 267. Martins does not contend, as the petitioner in Hernandez did, that he did not receive the notice to appear, but that it was insufficient because it was in English. Furthermore, “sections 1229(a)(1) and (b)(1) do not require notice in the alien’s native language”. Cho-Ajanel v. Lynch, 622 F. App’x 2 Case: 20-60737 Document: 00516203742 Page: 3 Date Filed: 02/15/2022 No. 20-60737 434, 434 (5th Cir. 2015) (per curiam) (citation omitted); see also Cruz-Diaz v. …
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