United States Court of Appeals

for the Fifth Circuit

No. 20-61026

Geovani Maradiaga-Ochoa, 

Petitioner,

versus

Merrick Garland, United States Attorney General,

Respondent.

Petition for Review of the Order of the

Board of Immigration Appeals

Agency No. A200-030-803

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:*

Geovani Maradiaga-Ochoa seeks to reopen a removal proceeding. 

The immigration judge denied Maradiaga’s motion to reopen, and the BIA

affirmed and dismissed Maradiaga’s appeal. Because we conclude that the 

BIA did not abuse its discretion when it determined that (1) Maradiaga 

received notice of the proceeding, (2) Maradiaga’s motion to reopen was 

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

April 13, 2022

Lyle W. Cayce

Clerk

Case: 20-61026 Document: 00516278494 Page: 1 Date Filed: 04/13/2022
No. 20-61026

2

untimely, and (3) there was no substantial change to country conditions, we 

AFFIRM the judgment of the BIA.

I.

Maradiaga, a citizen of Honduras, entered the United States on July 9, 

2005. On July 12, 2005, he was interviewed by a border agent and “readily 

admitted to being a national of Honduras by virtue of birth and to having just 

illegally entered the United States.” On the same day, the agent personally 

served Maradiaga with a Notice to Appear that charged him with 

removability and ordered him to appear before an immigration judge on 

September 29, 2005. The Notice to Appear was in English, and Maradiaga

states that the agent never explained its contents in Spanish, the only 

language he knows. The Notice to Appear indicates that Maradiaga was 

provided oral notice in Spanish of the time and place of his hearing and the 

consequences for failing to appear. The Notice to Appear also bears 

Maradiaga’s signature and fingerprint. Upon his release from custody, 

Maradiaga stated that he believed himself to be “in complete freedom.”

Maradiaga did not appear at his hearing. The immigration judge 

found that documented evidence submitted by the Immigration and 

Nationality Service (INS) established the truth of the facts contained in the 

Notice to Appear. The judge then entered an in absentia removal order.

In March 2020, Maradiaga moved to reopen the proceedings to 

rescind the removal order. Maradiaga alleges that he was never clearly 

notified that he had to attend a hearing. He states that he was in a state of 

delirium at the time due to his diabetes, and he alleges that the border agents 

did not notify him of the hearing in Spanish. He also states that he did not 

become aware of the removal order until nearly fifteen years later, when he 

filed a Freedom of Information Act request. 

Case: 20-61026 Document: 00516278494 Page: 2 Date Filed: 04/13/2022
No. 20-61026

3

Maradiaga also moved to reopen for the purpose of applying for 

asylum, statutory withholding of removal, and protection under the 

Convention Against Torture. Maradiaga describes several harmful incidents 

that some of his family members have reported in Honduras in the fifteen 

years between the removal hearing and his discovery of the order. In 2006 

and 2010, his sister filed police reports against a man who attempted to rape 

her. After her assailant was tried and acquitted, she received an anonymous

death threat concerning her family. In 2013, Maradiaga’s brother was 

murdered, and although the family suspects that the murderer was his 

sister’s assailant, the police never arrested anyone. Maradiaga also received 

an anonymous death threat after he inquired about the murder. As a result, 

Maradiaga fears persecution upon returning to Honduras.

In April 2020, the immigration judged denied Maradiaga’s motion to 

reopen. The immigration judge found that Maradiaga had received proper 

notice of the hearing, that his motion was untimely, that his argument for 

asylum was based on personal circumstances instead of changed country 

conditions, and that the case did not warrant a sua sponte reopening.1 The 

BIA affirmed and dismissed the appeal. Maradiaga timely petitioned this 

court for review.

II. 

Maradiaga challenges the BIA’s denial of reopening on several 

grounds. He first argues that he did not receive proper notice of the 

September 29, 2005 hearing under 8 U.S.C. § 1229(a)(1). He next argues for 

reopening on the basis of exceptional circumstances. Finally, regarding his 

intentions to apply for asylum upon reopening, Maradiaga argues that the 

1 Maradiaga does not ask this court to consider the sua sponte reopening issue, so 

we will not do so.

Case: 20-61026 Document: 00516278494 Page: 3 Date Filed: 04/13/2022
No. 20-61026

4

BIA failed to consider all the evidence regarding changed country conditions. 

We reject each argument. 

A.

We review the disposition of a motion to reopen under a “highly 

deferential abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 

F.3d 354, 358 (5th Cir. 2009). Accordingly, we “must affirm the BIA’s 

decision as long as it is not capricious, without foundation in the evidence, or 

otherwise so irrational that it is arbitrary rather than the result of any 

perceptible rational approach.” Id. 

Although we review questions of law de novo, we defer to the BIA’s 

interpretation of immigration statutes “unless the record reveals compelling 

evidence that the BIA’s interpretation is incorrect.” Id. Further, “[t]he 

BIA’s factual findings are reviewed under the substantial-evidence test, 

meaning that this court may not overturn the BIA’s factual findings unless 

the evidence compels a contrary conclusion.” Id. We consider the 

“underlying decision of the [immigration judge] only if it influenced the 

determination of the BIA.” Id.

B. 

We first address whether the BIA properly denied reopening

Maradiaga’s proceedings for the purpose of rescinding the order. We 

conclude that the BIA did not abuse its discretion when it determined that

Maradiaga was properly notified and that the exceptional circumstance 

provision was inapplicable.

1.

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

be rescinded only 

Case: 20-61026 Document: 00516278494 Page: 4 Date Filed: 04/13/2022
No. 20-61026

5

(i) upon a motion to reopen filed within 180 days after the date 

of the order of removal if the alien demonstrates that the failure 

to appear was because of exceptional circumstances (as defined 

in subsection (e)(1)), or (ii) upon a motion to reopen filed at 

any time if the alien demonstrates that the alien did not receive 

notice [of the hearing] in accordance with [§ 1229(a)(1) or (2)] 

. . . or the alien demonstrates that the alien was in Federal or 

State custody and the failure to appear was through no fault of 

the alien.

Maradiaga argues that he lacked notice because his diabetes and 

delirium put him in an “impaired mental state” when he signed the Notice 

to Appear. Additionally, he argues a lack of proper notice because the Notice 

to Appear was not in his native Spanish. Though 8 U.S.C. § 1229(a)(1) does 

not by its terms require notice to be in the alien’s native language, Maradiaga

asks usto infer this requirement based on § 1229a(b)(7).

2 He also denies that 

he received oral notice in Spanish from the border agents. The Government 

responds that the Notice to Appear, bearing Maradiaga’s signature and 

fingerprint, confirms that he received oral notice in Spanish. Further, it 

contends that § 1229(a)(1) does not require the Notice to Appear to be in any 

language other than English. 

2 8 U.S.C. § 1229a(b)(7) states the following:

Any alien against whom a final order of removal is entered in absentia

under this subsection and who, at the time of the notice described in 

paragraph (1) or (2) of section 1229(a) of this title, was provided oral 

notice, either in the alien’s native language or in another language the alien 

understands, of the time and place of the proceedings and of the 

consequences under this paragraph of failing, other than because of 

exceptional circumstances (as defined in subsection (e)(1)) to attend a 

proceeding under this section, shall not be eligible for relief under section 

1229b, 1229c, 1255, 1258, or 1259 of this title for a period of 10 years after 

the date of the entry of the final order of removal.

Case: 20-61026 Document: 00516278494 Page: 5 Date Filed: 04/13/2022
No. 20-61026

6

Under 8 U.S.C. § 1229(a)(1), an alien who is subject to removal 

proceedings is entitled to written notice of “[t]he time and place at which the 

proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i). The alien must also 

be informed of the consequences of failing to appear after receiving notice, 

id. § 1229(a)(1)(G)(ii), including that the immigration judge may enter an 

in absentia removal order against him. Id. § 1229a(b)(5)(A). This court has 

recognized on several occasions that “[§] 1229(a)(1) does not explicitly 

require that the [Notice to Appear] be in any language other than English.” 

Cruz-Diaz v. Holder, 388 F. App’x 429, 430 (5th Cir. 2010) (unpublished); 

Chavez v. Holder, 343 F. App’x 955, 957 (5th Cir. 2009) (unpublished); 

Barbosa v. Filip, 308 F. App’x 822, 824 (5th Cir. 2009) (unpublished). And

we determine notice to be sufficient if the Notice to Appear comported with 

the statutory requirements. Cruz-Diaz, 388 F. App’x at 430–31.

The BIA correctly found no error in the immigration judge’s

determination that Maradiaga was properly notified. The Notice to Appear

that was personally delivered to Maradiaga clearly stated the time and place 

of the removal proceedings as required under § 1229(a)(1). The statute by 

its terms does not require the Notice to Appear to be in English, and, in any 

event, Maradiaga confirmed with his signature and fingerprint that he was 

orally instructed in Spanish of the time and place of the hearing, as well as of 

the consequences for failing to appear. This information is consistent with 

the information included in the Form I-213 in this case, which states that 

Maradiaga understood that a failure to appear would result in his deportation 

in absentia. It is possible that Maradiaga did not comprehend every detail of 

what was happening due to the language barrier and his condition at the 

border. But we cannot conclude that the BIA abused its discretion in 

determining from the evidence that the statutory requirements for notice 

were met.

Case: 20-61026 Document: 00516278494 Page: 6 Date Filed: 04/13/2022
No. 20-61026

7

Therefore, we affirm the BIA’s determination that Maradiaga 

received proper notice.

2.

Maradiaga argues that the BIA did not properly consider his claim for 

exceptional circumstances. In particular, he asserts that equitable tolling 

allows his claim to survive the statute’s 180-day time limit. He argues that 

he “diligently pursued his rights” because he filed his motion to reopen 

within 90-days after learning of the removal order in 2020. He also states 

that he was feeling ill and mentally unstable due to his diabetes and difficult

journey, and that his condition was an extraordinary circumstance that

prevented him from timely filing his motion. 

The Government responds that the exceptional circumstances 

exception is inapplicable because Maradiaga was not entitled to equitable 

tolling. It argues that Maradiaga did not diligently pursue his rights because

he knew that he entered the United States illegally, personally received a

Notice to Appear, and did nothing to determine his status for fifteen years. 

The Government also asserts that Maradiaga’s illness relates to his condition 

in July 2005, when he crossed the border, and not during his September 

hearing or the 180 days thereafter. It also states that Maradiaga offered no

evidence of his diabetes in 2005 and that the records only confirm his diabetes 

as far back as 2016. 

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

be rescinded “upon a motion to reopen filed within 180 days after the date of 

the order of removal if the alien demonstrates that the failure to appear was 

because of exceptional circumstances . . . .” And under § 1229a(e)(1), 

“exceptional circumstances” are those such as “battery or extreme cruelty 

to the alien or any child or parent of the alien, serious illness of the alien, or 

Case: 20-61026 Document: 00516278494 Page: 7 Date Filed: 04/13/2022
No. 20-61026

8

serious illness or death of the spouse, child, or parent of the alien, but not 

including less compelling circumstances . . . .”

A litigant who fails to file a motion to reopen within 180 days of 

removal based on exceptional circumstances is entitled to equitable tolling if 

two elements are satisfied: “(1) that he has been pursuing his rights diligently, 

and (2) that some extraordinary circumstance stood in his way and prevented 

timely filing.” Lugo-Resendez v. Lynch, 831 F.3d 337, 344 (5th Cir. 2016)

(quoting Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 

(2016)). “[N]either excusable neglect nor ignorance of the law is sufficient 

to justify equitable tolling.” Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 

2002) (internal quotation omitted).

The BIA did not abuse its discretion in finding Maradiaga’s motion 

untimely. Maradiaga did not move to reopen until nearly fifteen years after 

the removal order was issued. Obviously, that is well beyond the 180-day 

time limit. Even if timely, we would not consider his condition at the border 

to be an exceptional circumstance. Nor do we believe that Maradiaga is 

entitled to equitable tolling. He had full knowledge that he illegally crossed 

the border, signed a Notice to Appear showing that he was notified of the 

hearing, and did nothing else to determine his status for fifteen years. This 

behavior cannot be called diligent and does not justify extending the statutory 

time limit.

Thus, the BIA correctly determined that the exceptional 

circumstances provision of § 1229a(b)(5)(C)(i) is inapplicable.

C.

We next address whether the BIA properly determined that reopening 

was not warranted based on changed country conditions. Maradiaga argues 

that a change in country conditions is established due to the attacks against 

his sister, the murder of his brother, and the death threats Maradiaga

Case: 20-61026 Document: 00516278494 Page: 8 Date Filed: 04/13/2022
No. 20-61026

9

received for his subsequent investigation. He argues that these incidents 

testify to the deterioration of the Honduran police force and its inability to 

protect him from persecution upon his return. The Government responds 

that these attacks and threats constitute only personal circumstances.3

Under 8 U.S.C. § 1229a(c)(7)(C)(i), a “motion to reopen shall be filed 

within 90 days of the date of entry of a final administrative order of removal.”

However, for the purpose of applying for asylum, there is no time limit on 

filing if there are “changed country conditions arising in the country of 

nationality or the country to which removal has been ordered, if such 

evidence is material and was not available and would not have been 

discovered or presented at the previous proceeding.” 8 U.S.C. 

§ 1229a(c)(7)(C)(ii). A showing of a change in “personal circumstances” 

does not constitute a change in country conditions. Singh v. Lynch, 840 F.3d 

220, 222–23 (5th Cir. 2016) (“Singh’s assertion that he fears for his safety 

upon returning to India, given the new threats and violence experienced by 

his mother and the Indian police’s targeting of him, amounts to a change in 

personal circumstances and does not constitute changed country 

conditions.”).

3 Responding to Maradiaga’s argument about the Honduran police’s inability to 

protect him, the Government contends that this court lacks jurisdiction to consider it 

because Maradiaga did not raise the argument to the BIA and thus failed to exhaust his 

administrative remedies. See 8 U.S.C. 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452–53 

(5th Cir. 2001) (“An alien fails to exhaust his administrative remedies with respect to an 

issue when the issue is not raised in the first instance before the BIA—either on direct 

appeal or in a motion to reopen.”); see also Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 

1986) (“When exhaustion is statutorily mandated, the requirement is jurisdictional.”). 

However, Maradiaga sufficiently addressed the broader issue of changed country 

conditions to the BIA, so we will consider the additional reasoning Maradiaga brings to this 

court.

Case: 20-61026 Document: 00516278494 Page: 9 Date Filed: 04/13/2022
No. 20-61026

10

The BIA was correct to find no error in the immigration judge’s

finding of a lack of changed circumstances. The incidents concerning 

Maradiaga and his family do not constitute changed country conditions, but 

rather personal circumstances. We also cannot conclude that Maradiaga’s 

claims regarding the deterioration of the Honduran police force constituted 

changed country conditions. The only evidence in the record of the police 

force in 2005 is a statement in Maradiaga’s asylum application that he “knew 

that the police would not protect [him]” because they were “bribed and 

controlled by the gangs.” So, it appears that such conditions were present 

the first time he filed for asylum; he has not shown there has been a material 

change.

* * *

Because we hold that the BIA did not abuse its discretion when it 

determined that Maradiaga received notice, that his motion was untimely, 

and that there was not a substantial change to country conditions, we 

AFFIRM the judgment of the BIA.

Case: 20-61026 Document: 00516278494 Page: 10 Date Filed: 04/13/2022