United States Court of Appeals

for the Fifth Circuit

No. 21-60026

Summary Calendar

Jose Paulino Argueta-Martinez, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A077 794 055

Before Wiener, Dennis, and Haynes, Circuit Judges.

Per Curiam:*

Jose Paulino Argueta-Martinez, a native and citizen of El Salvador, 

seeks review of an order from the Board of Immigration Appeals (BIA) 

denying his motion to reopen in absentia removal proceedings. This court 

reviews the denial of a motion to reopen under “a highly deferential abuse-

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opinion should not be published and is not precedent except under the limited 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

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of-discretion standard, regardless of the basis of the alien’s request for 

relief.” Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009). The 

BIA’s factual findings are reviewed for substantial evidence and its rulings of 

law are reviewed de novo. Id.

Argueta-Martinez argues that the BIA abused its discretion in 

affirming the immigration judge’s denial of his motion to reopen because he 

did not receive proper notice of his initial hearing. He notes that the record 

clearly shows that he did not receive actual notice of his hearing because the 

notice was mailed to the wrong apartment number and was returned to 

sender. Argueta-Martinez does not dispute, however, that the address he 

initially provided, which was listed on his Notice to Appear (NTA), is not a 

full mailing address because it does not include a building number; it only has

a street name and an apartment number. Thus, even if the notice had been 

mailed to the apartment number listed on the NTA, it still would have been 

returned as undeliverable. Moreover, Argueta-Martinez’s argument ignores 

that he failed to comply with his obligations under 8 U.S.C. § 1229(a)(1)(F)(i)

and (ii) to provide an address at which he could be contacted regarding the 

removal proceedings and to provide a written record of any change of 

address. The BIA’s finding that Argueta-Martinez was not entitled to actual 

notice of his removal hearing because he failed to provide an accurate address 

to the immigration court is supported by substantial evidence and should be 

upheld. See Gomez-Palacios, 560 F.3d at 358; see also § 1229(a)(2)(B).

Argueta-Martinez admitted in a sworn affidavit that he was living in Virginia 

at the time of his hearing, not at the incomplete California address he initially 

provided. 

Additionally, Argueta-Martinez suggests that because his current 

address was included in his application for Temporary Protected Status, the 

Government knew of his whereabouts, and the immigration court could have 

tracked him down. Aside from the fact that Argueta-Martinez did not apply 

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for such status until 2018, nearly two decades after he was ordered removed 

in absentia, the Immigration and Nationality Act expressly places the burden 

on the alien to provide a current address. See § 1229(a)(1)(F)(i)-(ii).

Argueta-Martinez further argues that the “balance of the equities” 

weighs in favor of reopening, especially given his conduct while in the United 

States, namely paying his federal income taxes and “maintaining a clear 

criminal record.” The BIA’s decision not to reopen the removal proceedings 

sua sponte was separate from its decision to deny reopening based on lack of 

notice, but Argueta-Martinez does not challenge the BIA’s refusal to reopen 

the removal proceedings sua sponte in his brief. As such, he has abandoned 

any such argument. See Nunez v. Sessions, 882 F.3d 499, 508 n.5 (5th Cir. 

2018). Even if he had raised this issue, this court lacks jurisdiction to review 

the BIA’s refusal to reopen removal proceedings sua sponte. See id.

Finally, Argueta-Martinez appears to argue that the BIA’s refusal to 

reopen the removal proceedings violated his right to due process. However, 

the BIA did not violate his due process rights because “there is no liberty 

interest at stake in a motion to reopen due to the discretionary nature of the 

relief sought.” Gomez-Palacios, 560 F.3d at 361 n.2.

Based on the foregoing, the petition for review is DENIED.

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