Case: 17-60637 Document: 00514860849 Page: 1 Date Filed: 03/06/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED March 6, 2019 No. 17-60637 Lyle W. Cayce Clerk NORMA YANET FUENTES-PENA; ERIK ARISTEDES VIJIL-FUENTES; JUDITH DANIELA VIJIL-FUENTES, Petitioners v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petition for Review of an Order of the Board of Immigration Appeals Before JOLLY, DENNIS, and HIGGINSON, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Petitioner Norma Yanet Fuentes-Pena and her two minor children seek review of a final order by the Board of Immigration Appeals (BIA) denying her motion to reopen removal proceedings. She contends that the BIA abused its discretion by refusing to reopen her removal proceedings because she never received notice of her removal hearing. The government argues that Fuentes- Pena did not receive notice because she moved without informing the immigration court of her new address. Because Fuentes-Pena updated her address with Immigration and Customs Enforcement (ICE), we VACATE the order of the BIA and REMAND for further proceedings. Case: 17-60637 Document: 00514860849 Page: 2 Date Filed: 03/06/2019 No. 17-60637 I. Norma Yanet Fuentes-Pena is a native and citizen of El Salvador who entered the United States near Hidalgo, Texas, with her two children. Upon her release from immigration detention, the Department of Homeland Security (DHS) personally served Fuentes-Pena with a Notice to Appear (NTA), charging her with removability as an alien present in the United States without being admitted or paroled. The NTA advised Fuentes-Pena that she was to appear before an immigration judge (IJ) in Miami, Florida on a date and at a time to be later determined. Fuentes-Pena’s children were “riders” on her immigration case. Accompanying the NTA was a notice from ICE, an agency within DHS, stating that the NTA would “be filed with the Office of the Immigration Judge with jurisdiction over the residential address [she] provided to ICE upon [her] release.” Upon release from DHS custody, Fuentes-Pena, as required by law, provided an address for further communication, which was in Duncanville, Texas. Fuentes-Pena received an EOIR-33 form and acknowledged that she needed to use that form to inform the “Office of the Immigration Judge” and ICE of any change in her address within five days. The NTA also stated: “If you do not submit EOIR-33 and do not otherwise provide an address at which you may be reached during proceedings, then the Government shall not be required to provide you with written notice of your hearing.” Several months later, in March 2016, Fuentes-Pena moved to Massachusetts and informed only ICE of her change of address. On June 1, 2016, the NTA, furnished by ICE, was stamped as received by the immigration court in Dallas, Texas. On June 7, 2016, a hearing notice from the immigration court was mailed to the Duncanville, Texas address that she had provided when she was released, advising Fuentes-Pena that a hearing was scheduled for June 20, 2016, in Dallas, Texas. ...
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