Case: 20-60175 Document: 00515905349 Page: 1 Date Filed: 06/18/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 20-60175 June 18, 2021 Summary Calendar Lyle W. Cayce Clerk Leticia Villegas de Mendez, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A078 555 934 Before Davis, Stewart, and Dennis, Circuit Judges. Per Curiam:* Leticia Villegas de Mendez, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (BIA) denying her motion to remand and dismissing her appeal of the order by the immigration judge (IJ) denying reopening of her in absentia removal * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-60175 Document: 00515905349 Page: 2 Date Filed: 06/18/2021 No. 20-60175 proceeding. For the following reasons, we will grant the petition and remand to the BIA. In May 2003, the Immigration and Naturalization Service (INS) served Villegas de Mendez by mail with an ostensible notice to appear (NTA) charging removability for having stayed longer than her nonimmigrant B-2 visa allowed. The NTA did not provide the date or time of the removal hearing but instead stated that a hearing would later be set. Although the INS later served Villegas de Mendez with a notice of hearing, she failed to appear, and the IJ ordered her removed to Mexico because the INS had proved its charge against her. In May 2017, Villegas de Mendez moved to reopen on the basis that she had not received notice of the scheduled hearing. The IJ denied the motion on the basis that Villegas de Mendez failed to rebut the presumption that she had received the INS’s properly mailed notices. Before the BIA, Villegas de Mendez, citing Pereira v. Sessions, 138 S. Ct. 2105, 2110 (2018), urged that her NTA was defective because it did not specify the date and time of her hearing. Additionally, Villegas de Mendez moved for remand to the IJ so that she might apply for cancellation of removal, and thus adjustment of status, available under 8 U.S.C. § 1229b(b)(1) to certain nonpermanent residents who have been continuously present in the United States for not less than 10 years immediately before seeking cancellation of removal and satisfy other statutory conditions. The 10-year period of physical presence in the United States is deemed stopped or ended when the alien is served with a proper NTA under 8 U.S.C. § 1229(a). See § 1229b(d)(1)(A). Villegas de Mendez contended that she was prima facie eligible for that relief. See INS v. Abudu, 485 U.S. 94, 104 (1988); Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993). But 2 Case: 20-60175 Document: 00515905349 Page: 3 Date Filed: 06/18/2021 No. 20-60175 the BIA concluded that she had been given …
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