United States Court of Appeals

for the Fifth Circuit

No. 20-61029

Summary Calendar

Jose Ramiro Martinez-Galeas, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A088 653 465

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:*

Jose Ramiro Martinez-Galeas, a native and citizen of Honduras, 

petitions for review of a decision of the Board of Immigration Appeals (BIA) 

dismissing his appeal from an order of the immigration judge (IJ) that denied

his motion to reopen removal proceedings. He argues that, counter to the 

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opinion should not be published and is not precedent except under the limited 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

March 8, 2022

Lyle W. Cayce

Clerk

Case: 20-61029 Document: 00516229630 Page: 1 Date Filed: 03/08/2022
No. 20-61029

2

BIA’s finding, the record contains sufficient evidence to rebut the 

presumption that he received notice of the time and location of his removal 

proceedings. We DENY Martinez-Galeas’s petition for review.

I. BACKGROUND

On an unknown date prior to December 3, 2007, Martinez-Galeas 

entered the United States. On December 3, 2007, Border Patrol agents 

encountered Martinez-Galeas travelling on a highway and detained him, 

charging him under section 212(a)(6)(A)(i) of the Immigration and 

Nationality Act (“INA”).1 The Notice to Appear, with which MartinezGaleas was personally served, contained the following residential 

handwritten address on it: “6117 Gulf Freeway #1454 Houston, TX 77023.”

The Notice to Appear ordered Martinez-Galeas’s appearance at the 

Executive Office for Immigration Review on “a date to be set,” and 

Martinez-Galeas was provided oral notice in Spanish of the consequences of 

his failure to appear. However, the Form I-213 Record of 

Deportable/Inadmissible Alien for Martinez-Galeas’s case, also dated 

December 3, 2007, and signed by the same immigration officer as the Notice 

to Appear, Harold W. Gill, has a different address on it: “7910 Bellaire 653 

Houston, Texas 77036.” 

A Notice of Hearing was sent to the 6117 Gulf Freeway address as 

printed on the Notice to Appear, but the envelope was returned as 

undeliverable. On February 20, 2008, the scheduled removal hearing was 

held, and the next day the IJ issued a decision ordering Martinez-Galeas 

removed in absentia. This too was mailed to the 6117 Gulf Freeway address 

and was returned as undeliverable. 

1 8 U.S.C. § 1182(a)(6)(A)(i). 

Case: 20-61029 Document: 00516229630 Page: 2 Date Filed: 03/08/2022
No. 20-61029

3

Over nine years passed. On August 30, 2017, Martinez-Galeas and his 

wife met with counsel to discuss his immigration status and allegedly found 

out for the first time that he had been ordered removed. On September 2, 

2017, Martinez-Galeas filed a request under the Freedom of Information Act,

and the request revealed that the Notice of Hearing and removal order were 

sent (unsuccessfully) to the 6117 Gulf Freeway address. 

On October 15, 2019, Martinez-Galeas filed a motion to reopen his 

removal proceedings pursuant to INA § 240(b)(5)(C)(ii)2 and 8 C.F.R

§ 1003.23(b)(4)(ii). The IJ denied the motion because it was “filed 12 years 

after [the] removal order” and “no exceptional circumstances” were found 

because the “notice [was] sent to [the] address provided by respondent.” 

Martinez-Galeas appealed to the BIA, requesting that the BIA vacate the 

decision of the IJ and exercise its sua sponte authority under 8 C.F.R.

§ 1003.2(a) to reopen the case. The BIA dismissed the appeal for the 

following reasons: (1) Martinez-Galeas “was personally served with the 

notice to appear,” (2) “[t]he notice to appear contains the address that the 

DHS had for the respondent, to which the hearing notice was later sent,” 

(3) the Notice to Appear requires petitioners to provide the DHS with their 

“full mailing address and telephone phone number,” and (4) because 

Martinez-Galeas was personally served with the notice to appear he “was on 

notice of his obligation to provide a correct address to the Immigration 

Court.”

II. STANDARD OF REVIEW

We apply a highly deferential abuse-of-discretion standard in 

reviewing the denial of a motion to reopen removal proceedings. GomezPalacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). As long as the BIA’s 

2 8 U.S.C. § 1229a(b)(5)(C)(ii).

Case: 20-61029 Document: 00516229630 Page: 3 Date Filed: 03/08/2022
No. 20-61029

4

decision 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,” we must affirm it. Id.

This court reviews the BIA’s decision and will consider the 

underlying decision of the IJ only if it influenced the determination of the 

BIA. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). When, 

as here, the BIA affirms the decision of the IJ and relies on reasoning set forth 

in the IJ’s decision, this court reviews the IJ’s decision to the extent that it 

impacted the BIA’s decision. See Theodros v. Gonzales, 490 F.3d 396, 400 (5th 

Cir. 2007).

III. MOTION TO REOPEN

Martinez-Galeas contends that the BIA abused its discretion in 

determining that the record contains insufficient evidence to rebut the 

presumption that he did receive notice. The appeal contains both statutory 

and regulatory challenges.3

A. Statutory Grounds to Reopen

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

order4 may be rescinded “upon a motion to reopen filed at any time if the 

3 We note that neither the IJ, nor the BIA explicitly analyzed the statutory grounds 

of the motion to reopen. The statutory and regulatory law regarding rescission of a removal 

order, however, involve nearly identical language. Compare 8 U.S.C. § 1229a(b)(5)(C)(ii),

with 8 C.F.R § 1003.23(b)(4)(ii).

4 Under 8 U.S.C. § 1229a(b)(5)(A), an alien who fails to attend a hearing after 

written notice has been provided to the alien or the alien’s counsel of record shall be 

ordered removed in absentia if the government establishes by “clear, unequivocal, and 

convincing evidence” that the written notice was so provided and that the alien is 

removable. The government satisfies the notice requirement for obtaining a removal order 

when it gives proper notice at the most recent mailing address the alien 

Case: 20-61029 Document: 00516229630 Page: 4 Date Filed: 03/08/2022
No. 20-61029

5

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

paragraph (1) or (2) of section 1229(a) of this title.” Paragraph (1) of 

§ 1229(a) requires that notice of a removal hearing be given in person, or by 

mail if personal service is not practicable. Id. § 1229(a)(1). The notice must 

specify the “time and place at which the proceedings will be held” and the 

“consequences under section 1229a(b)(5) of this title of the failure, except 

under exceptional circumstances, to appear at such proceedings.” Id.

§ 1229(a)(1)(G)(i)–(ii).5

Paragraph (2) of § 1229(a) states that, in the case of any change in the 

time and place of removal proceedings following the original provision of

notice, written notice must be given in person, or by mail if personal service 

is not practicable, specifying the new time or place of the proceedings and the 

consequences of failing to attend. 8 U.S.C. § 1229(a)(2)(A). However, 

paragraph (2) provides an exception: “In the case of an alien not in detention, 

a written notice shall not be required under this paragraph if the alien has 

failed to provide the address required.” Id. § 1229(a)(2)(B).

The facts here are analogous to cases involving typographical errors in 

Notice-to-Appear addresses. In Mauricio-Benitez v. Sessions, 908 F.3d 144, 

provided. Id. However, no written notice is required if the alien failed to provide a current 

mailing address. Id. § 1229a(b)(5)(B).

5 The notice must also specify the nature of the proceedings against the alien; the 

legal authority under which the proceedings are conducted; the acts or conduct alleged to 

be in violation of law; the charges against the alien and the statutory provisions alleged to 

have been violated; and the alien’s right to counsel. 8 U.S.C. § 1229(a)(1)(A)–(E). Lastly, 

the notice must specify the alien’s obligation to immediately provide the government with 

a written record of an address and telephone number (if any) at which he may be contacted 

regarding the proceedings; the alien’s obligation to immediately apprise the government of 

any change in his address or telephone number; and the “consequences under section 

1229a(b)(5) of this title of failure to provide address and telephone information.” Id.

§ 1229(a)(1)(F)(i)–(iii).

Case: 20-61029 Document: 00516229630 Page: 5 Date Filed: 03/08/2022
No. 20-61029

6

149 (5th Cir. 2018), for example, the petitioner “was personally served with 

a [Notice to Appear] listing a mailing address that he contends was 

misspelled.” We held that “he had notice of the error in his address upon 

receipt of the [Notice to Appear].” The same reasoning applies here. 

Although the record shows two addresses on immigration documents signed 

by the same immigration officer on the same day, Martinez-Galeas, like the 

petitioner in Mauricio-Benitez, was personally served with (and signed) a 

Notice to Appear bearing an erroneous address. Thus, he was on notice of 

the error. Because Martinez-Galeas “has failed to provide the address 

required” pursuant to 8 U.S.C. § 1229(a)(2)(B), the immigration court need 

not have provided “written notice . . . specifying the . . . new time or place of 

the proceedings.” 8 U.S.C. § 1229(a)(2)(A).

B. Regulatory Grounds to Reopen

The Code of Federal Regulations provides that an immigration judge 

may “reopen or reconsider any case in which he or she has rendered a 

decision.” 8 C.F.R. § 1003.23(b)(1). The Code of Federal Regulations has a 

similar provision for the BIA’s ability to reopen a case before it. 8 C.F.R. 

§ 1003.2(a). However, “we lack jurisdiction to review the BIA’s decision to 

decline sua sponte reopening.” Hernandez-Castillo, 875 F.3d at 206 

(discussing both immigration judges’ and the BIA’s regulatory authority).

IV. CONCLUSION

For the foregoing reasons, Martinez-Galeas’s petition for review is 

DENIED.

Case: 20-61029 Document: 00516229630 Page: 6 Date Filed: 03/08/2022