Osvaldo Costa Santos v. William Barr, U. S. Atty G ( 2020 )

Case: 19-60381 Document: 00515633979 Page: 1 Date Filed: 11/10/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 10, 2020
No. 19-60381 Lyle W. Cayce
Summary Calendar Clerk
Osvaldo Do Nascimento Costa Santos,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 254 580
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Osvaldo Do Nascimento Costa Santos, a native and citizen of Angola,
petitioned for review of an order of the Board of Immigration Appeals (BIA)
denying his motion seeking reconsideration of the BIA’s affirmance of an
immigration judge’s order denying his motion to reopen.
*
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opinion should not be published and is not precedent except under the limited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.
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No. 19-60381
Santos contends that the BIA abused its discretion in denying his
motion for reconsideration. Specifically, he argues that, pursuant to Pereira
v. Sessions, 138 S. Ct. 2105 (2018), only a proper notice to appear, which
specifies the time and place of the removal hearing, can satisfy the written
notice requirements of 8 U.S.C. § 1229(a) and 8 U.S.C. § 1229a(b)(5)(A) and
commence removal proceedings. Santos asserts that the defect in the notice
to appear could not be cured by a subsequent notice of hearing because he did
not receive the notices. Given that Santos’s notice to appear did not contain
the time and place of his removal hearing, he asserts that he did not receive a
proper notice to appear and, thus, could not be ordered removed in absentia.
This court has concluded that Pereira is limited to the context of the
stop-time rule in cancellation of removal proceedings. See Mauricio-Benitez
v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018), cert. denied, 139 S. Ct. 2767(2019). Because the notice to appear issued to Santos detailed the nature of
the proceedings, the legal basis for the proceedings, and the possibility of in
absentia removal, it was not defective. See Pierre-Paul v. Barr, 930 F.3d 684,
689-90 (5th Cir. 2019), cert. denied, 2020 WL 1978950 (U.S. Apr. 27, 2020)
(No. 19-779). Any alleged defect, moreover, would have been cured by the
inclusion of the omitted details in the later-issued notices of hearing that were
mailed to the address provided by Santos. See Pierre-Paul, 930 F.3d at 690-
91; Gomez-Palacios v. Holder, 560 F.3d 354, 359 (5th Cir. 2009); Mauricio-
Benitez, 908 F.3d at 148 & n.1. We reject the argument that Santos was
relieved of his obligation to provide a change of address until the notice to
appear was filed in the immigration court. See Hernandez-Castillo v. Sessions,
875 F.3d 199, 205 (5th Cir. 2017); see also Fuentes-Pena v. Barr, 917 F.3d 827,
830-31 (5th Cir. 2019); 8 C.F.R. § 1003.15(d)(2).
Finally, Santos’s jurisdictional challenge is foreclosed by Pierre-Paul,
in which we held that the time and place requirements in a notice to appear
are not jurisdictional. 930 F.3d at 688-89, 690-93. Santos fails to show that
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No. 19-60381
the BIA committed legal error or abused its discretion in denying his motion
for reconsideration based on Pereira. See Le v. Lynch, 819 F.3d 98, 104 (5th
Cir. 2016); see also Gomez-Palacios, 560 F.3d at 358.
The petition for review is DENIED.
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