Case: 20-60008 Document: 00516030841 Page: 1 Date Filed: 09/27/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 27, 2021 No. 20-60008 Lyle W. Cayce Clerk Marcelo Eugenio Rodriguez, also known as Marcelo Rodriguez Andueza, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of the Order of the Board of Immigration Appeals Agency No. A207 311 796 Before Higginbotham, Willett, and Duncan, Circuit Judges. Patrick E. Higginbotham, Circuit Judge: Marcelo Eugenio Rodriguez seeks review of the dismissal of his appeal by the Board of Immigration Appeals (“BIA”). Rodriguez’s appeal challenged the immigration judge’s denial of his motion to reopen removal proceedings and rescind his in absentia removal order. We grant his petition, Case: 20-60008 Document: 00516030841 Page: 2 Date Filed: 09/27/2021 No. 20-60008 vacate the dismissal by the BIA, and remand for further proceedings consistent with Niz-Chavez v. Garland. 1 I Rodriguez, a native and citizen of Uruguay, entered the United States on a visitor visa on February 16, 2002. Upon his marriage to a U.S. citizen in 2014, Rodriguez adjusted his status to that of a conditional permanent resident. On January 30, 2018, Rodriguez was served with a notice to appear (“NTA”) at his address in Pasadena, Texas, charging him with removability because he and his wife failed to file a required petition. The NTA did not contain the time and date of his immigration hearing. The immigration court subsequently sent a notice of hearing (“NOH”) to Rodriguez’s Pasadena address. Rodriguez asserts he did not receive the NOH because he had moved to Georgetown, Texas, after separating from his wife. Consequently, Rodriguez did not appear at his hearing on March 12, 2018, where the immigration judge ordered him removed in absentia. In July 2018, upon discovering the in absentia removal order, Rodriguez moved to rescind his removal order and reopen removal proceedings pursuant to 8 U.S.C. § 1229a(b)(5)(C)(ii). Rodriguez urged that he did not receive the NOH and that the NTA he received was insufficient notice under the Supreme Court’s decision in Pereira v. Sessions. 2 The immigration judge denied Rodriguez’s motion. Rodriguez appealed to the BIA, which affirmed the immigration judge’s decision and dismissed the appeal. The BIA first concluded that Rodriguez failed to rebut 1 141 S. Ct. 1474 (2021). 2 138 S. Ct. 2105 (2018). 2 Case: 20-60008 Document: 00516030841 Page: 3 Date Filed: 09/27/2021 No. 20-60008 the presumption of receipt for the NOH. Second, it relied on BIA and Fifth Circuit precedent to find that the NTA combined with the subsequent NOH containing the time and place of Rodriguez’s hearing “satisfied the written notice requirements of [8 U.S.C. § 1229(a)].” Rodriguez now petitions for review of the BIA’s decision. II This Court applies “a highly deferential abuse-of-discretion standard in reviewing the denial of a motion to reopen removal proceedings.” 3 The BIA “abuses its discretion when it issues a decision that is capricious, irrational, utterly without foundation in the evidence, based on legally …
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