United States Court of Appeals

for the Fifth Circuit

No. 20-60008

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 seeksreview 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, 

United States Court of Appeals

Fifth Circuit

FILED

September 27, 2021

Lyle W. Cayce

Clerk

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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).

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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 

erroneous interpretations of statutes or regulations, or based on unexplained 

departures from regulations or established policies.”4 We review the BIA’s 

conclusions of law de novo but give deference to its reasonable interpretation 

of immigration regulations and its findings of fact for substantial evidence.5

III

Rodriguez raises two arguments in his petition for review. First, he 

asserts that he did not receive proper notice pursuant to Pereira v. Sessions.

Second, he argues that he overcomes the presumption of receipt for the 

NOH. Because we conclude that the BIA based its decision on a legally 

erroneous interpretation of § 1229(a), we only address his first argument. 

Under 8 U.S.C. § 1229a(b)(5)(C)(ii), an in absentia removal order 

may be rescinded “upon a motion to reopen filed at any time if the alien 

demonstrates that the alien did not receive notice in accordance with [8 

3 Hernandez-Castillo v. Sessions, 875 F.3d 199, 203 (5th Cir. 2017).

4 Barrios-Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014).

5 Id.

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U.S.C. § 1229(a)].”6 Section 1229(a) requires that “written notice (in this 

section referred to as a ‘notice to appear’) shall be given” in removal 

proceedings, and it specifies certain notice requirements including “[t]he 

time and place at which the proceedings will be held.”7

The interpretation of § 1229(a)’s notice requirements has been the 

subject of dispute in recent years, mostly in the context of the stop-time rule. 

While the stop-time rule is not at issue in this case, it textually references 

§ 1229(a) like the recission of in absentia removal provision at issue here.

8

The stop-time rule provides that “any period of continuous residence or 

continuous physical presence in the United States shall be deemed to 

end . . . when the alien is served a notice to appear under section 1229(a) of 

this title.”9 In Pereira v. Sessions, the Supreme Court held that in the context 

of the stop-time rule, “[a] putative notice to appear that fails to designate the 

specific time or place of the noncitizen’s removal proceedings is not a notice 

to appear under section 1229(a), and so does not trigger the stop-time 

rule.”10 We subsequently limited Pereira to the stop-time rule11 and 

concluded that the written notice requirements under § 1229(a) could be 

provided in multiple documents.12 Thus, we reasoned that a defective notice 

to appear could be “cured” by a subsequent notice of hearing.13 However, 

6 8 U.S.C. § 1229a(b)(5)(C)(ii).

7 8 U.S.C. § 1229(a)(1).

8 8 U.S.C. § 1229b(d)(1).

9 Id.

10 138 S. Ct. at 2113–14 (internal quotations omitted).

11 See Mauricio-Benitez v. Sessions, 908 F.3d 144, 149 n.1 (5th Cir. 2018).

12 Pierre-Paul v. Barr, 930 F.3d 684, 690–91 (5th Cir. 2019).

13 Id. 

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the Supreme Court’s recent decision in Niz-Chavez v. Garland made plain 

that the § 1229(a) notice requirements must be included in a single 

document.14 The question now before us is whether the § 1229(a) notice 

requirements as interpreted in the stop-time context in Pereira and NizChavez apply to the provision governing recission of an in absentia removal 

order at issue in this case.

Rodriguez’s reliance on Pereira alone is misplaced because we

previously recognized that Pereira does not apply to petitioners seeking 

reopening and rescission of in absentia removal orders.

15 We cannot say the 

same of the Supreme Court’s decision in Niz-Chavez. While the controversy 

in Niz-Chavez focused on the stop-time rule,16 the Supreme Court 

interpreted § 1229(a) separately from the stop-time statute. The Court held 

that § 1229(a) “require[s] ‘a’ written notice containing all the required 

information” and rejected the argument that the requisite notice could be 

provided by multiple documents.17 The Court reasoned that “[t]he singular 

article ‘a’ thus falls outside the defined term (‘notice to appear’) and 

modifies the entire definition. So . . . the law . . . still stubbornly require[s] ‘a’ 

written notice containing all the required information.”18

Both the recission of an in absentia order provision and the stop-time 

rule provision specifically reference the § 1229(a) notice requirements.19 The

Court’s separate interpretation of the § 1229(a) notice requirements in Niz14 See 141 S. Ct. at 1480.

15 Mauricio-Benitez, 908 F.3d at 148 n.1.

16 141 S. Ct. at 1479–80.

17 Id. at 1480. 

18 Id.

19 See 8 U.S.C. §§ 1229a(b)(5)(C)(ii), 1229b(d)(1).

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Chavez thus applies in the in absentia context. The specific textual reference

to § 1229(a) distinguishes these provisions from others we have considered, 

including § 1227(a)(2)(A) at issue in Maniar v. Garland.

20 In Maniar, we 

acknowledged that Niz-Chavez overruled the two-step notice process from 

Pierre-Paul.

21 But because the provision at issue in Maniar does not reference 

the § 1229(a) notice requirements, we held that a single notice that did not 

include the time, date, and place of the initial hearing was a valid charging 

document because it met the regulatory requirements.22 Unlike the charging 

document at issue in Maniar, the recission of an in absentia order provision 

at issue here textually references § 1229(a). Under Niz-Chavez’s 

interpretation of § 1229(a), we therefore require a single document 

containing the required information in the in absentia context. 

The initial NTA did not contain the time and date of Rodriguez’s 

hearing. The BIA found 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)],” directly contrary to the 

Supreme Court’s interpretation of § 1229(a) in Niz-Chavez which made clear 

that subsequent notices may not cure defects in an initial notice to appear. 

The BIA applied a “legally erroneous interpretation[].”23

20 998 F.3d 235, 238 (5th Cir. 2021).

21 See id. at 242 n.2 (Niz-Chavez “undermines one of the rationales of our decision 

in Pierre-Paul—namely, that a ‘two-step process comports with relevant statutory language 

[1229(a)]’”). 

22 Id. at 242.

23 Barrios-Cantarero, 772 F.3d at 1021.

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IV

We grant Rodriguez’s petition, vacate the BIA’s decision, and remand 

for further proceedings consistent with Niz-Chavez. 

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