Pena-Lopez v. Garland

Case: 22-60316 Document: 00516666873 Page: 1 Date Filed: 03/06/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60316
Summary Calendar FILED
____________ March 6, 2023
Lyle W. Cayce
Fredy Leo Pena-Lopez, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A098 404 574
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Fredy Leo Pena-Lopez, a native and citizen of El Salvador, petitions
for review of a decision of the Board of Immigration Appeals (BIA) denying
his motion to reopen his removal proceedings and rescind an in absentia
removal order.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60316 Document: 00516666873 Page: 2 Date Filed: 03/06/2023
No. 22-60316
“Motions to reopen removal proceedings are disfavored.” Mauricio-
Benitez v. Sessions, 908 F.3d 144, 147 (5th Cir. 2018). The denial of a motion
to reopen is reviewed “under a highly deferential abuse-of-discretion
standard.” Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014)
(internal quotation marks and citation omitted). Accordingly, this court will
affirm the BIA’s decision unless it is “capricious, irrational, utterly without
foundation in the evidence, based on legally erroneous interpretations of
statutes or regulations, or based on unexplained departures from regulations
or established policies.” Id.Relying on the Supreme Court’s decision in Niz-Chavez v. Garland,
141 S. Ct. 1474 (2021), Pena-Lopez argues that he did not receive proper
statutory notice because his Notice to Appear (NTA) did not list a time or
date for his removal hearing. The Government responds that Pena-Lopez
was not entitled to recission of his removal order based on Niz-Chavez
because he forfeited his right to written notice when he failed to provide the
immigration court with a valid mailing address.
The Supreme Court held in Niz-Chavez that 8 U.S.C. § 1229(a)’s
written notice requirements must be provided in a single document to trigger
the stop-time rule. 141 S. Ct. at 1480. This court has since held that Niz-
Chavez’s interpretation of § 1229(a)’s notice requirements “applies in the in
absentia context.” Rodriguez v. Garland, 15 F.4th 351, 355 (5th Cir. 2021).
The BIA acknowledged Rodriguez in its decision denying Pena-
Lopez’s motion to reopen, but it found that Rodriguez did not dispose of the
case. Instead, the BIA relied on Spagnol-Bastos v. Garland, 19 F.4th 802 (5th
Cir. 2021), and found that Pena-Lopez had forfeited the right to written
notice of his removal hearing by failing to provide a valid address where the
immigration court could mail the notice.
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No. 22-60316
Pena-Lopez argues that Spagnol-Bastos does not govern his case
because there was no similar forfeiture of his right to receive written notice
given that “he did provide an address on his NTA.” But the alien in Spagnol-
Bastos also provided his address to immigration authorities, which was
incorrectly recorded as “Manhaion” rather than “Manhattan,” among other
errors. See 19 F.4th at 805. This court still held that the alien had failed to
comply with his obligation to provide an address at which he could receive
notice of his removal hearing, and had therefore forfeited his right to written
notice under § 1229a(b)(5)(B). Id. at 806-07.
Pena-Lopez provided an address to immigration authorities which he
later claimed was inaccurately recorded. 1 “Regardless of how the error in his
address was introduced, [Pena-Lopez] had an obligation to correct that error
with the immigration court. He failed to do so, and as a result he was not
entitled to actual notice of his removal hearing.” Mauricio-Benitez, 908 F.3d
at 149. The BIA therefore did not abuse its discretion in denying Pena-
Lopez’s motion to reopen and rescind his in absentia removal order because
he forfeited his right to written notice by failing to provide immigration
authorities with a viable mailing address. See Barrios-Cantarero, 772 F.3d at
1021; see also Spagnol-Bastos, 19 F.4th at 806-07; Mauricio-Benitez, 908 F.3d
at 148-49.
Next, Pena-Lopez argues that because his NTA lacked the date and
time of his removal hearing, jurisdiction never vested with the immigration
court. He acknowledges in his reply brief, however, that his jurisdictional
argument runs counter to this court’s binding precedent in Pierre-Paul v.
Barr, 930 F.3d 684, 689 (5th Cir. 2019), abrogated in part on other grounds by
_____________________
1
The address listed on the NTA and the subsequent hearing notice was 90519
Strip, Apartment #1, but according to Pena-Lopez’s affidavit presented with his motion to
reopen, the correct address was 90519 Street, Apartment #1.
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No. 22-60316
Niz-Chavez, 141 S. Ct. at 1479-80, and Maniar, but he states that he is raising
the issue to preserve it for further review.
This court held in Pierre-Paul that a defect in an NTA does not deprive
an immigration court of jurisdiction over removal proceedings. 930 F.3d at
691-93. Though the Supreme Court’s decision in Niz-Chavez abrogated
Pierre-Paul in part, this court confirmed in Maniar that the jurisdictional
holding from Pierre-Paul remains “the law of [this] circuit,” even after Niz-
Chavez. See Maniar, 998 F.3d at 242 n.2. Thus, there is no merit to Pena-
Lopez’s contention that the immigration court lacked jurisdiction over his
removal proceedings. See Pierre-Paul, 930 F.3d at 693.
Pena-Lopez also maintains that his due process rights were violated
because he never received proper statutory notice of his removal proceedings
and because jurisdiction never vested with the immigration court. “[T]his
court has held that no liberty interest exists in a motion to reopen, and
therefore due process claims are not cognizable in the context of reopening
proceedings.” Mejia v. Whitaker, 913 F.3d 482, 490 (5th Cir. 2019).
Finally, Pena-Lopez argues that the BIA erred in refusing to reopen
his removal proceedings sua sponte because Niz-Chavez presented a
fundamental change in the law and constituted an exceptional circumstance.
This court has held that it lacks jurisdiction to review the BIA’s decision to
exercise its sua sponte authority to reopen removal proceedings because “no
meaningful standard exists against which to judge” that decision. Enriquez-
Alvarado v. Ashcroft, 371 F.3d 246, 249 (5th Cir. 2004).
Based on the foregoing, the petition for review is DENIED in part
and DISMISSED in part.
4