United States Court of Appeals

for the Fifth Circuit

No. 19-60919

Jorge Alexander Arevalo-Martinez, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals

BIA No. A200 133 068

Before Stewart, Costa, and Willett, Circuit Judges.

Per Curiam:*

Jorge Alexander Arevalo-Martinez petitions for review an order of the 

Board of Immigration Appeals (“BIA”), arguing that the immigration court 

lacked jurisdiction and that he did not receive proper notice of his initial 

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opinion should not be published and is not precedent except under the limited 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

August 4, 2021

Lyle W. Cayce

Clerk

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removal proceeding. Since the BIA’s decision rests on substantial evidence, 

the petition for review is DENIED.

I. FACTUAL AND PROCEDURAL HISTORY

Jorge Alexander Arevalo-Martinez is a native and citizen of El 

Salvador. He entered the United States without inspection on or about 

September 9, 2005, near Eagle Pass, Texas. He was apprehended by border 

patrol agents on the same day, and he was released on his own recognizance

the next day. 

On September 11, 2005, Arevalo-Martinez was personally served with 

a notice to appear (“NTA”) that did not contain the date and time of his 

removal hearing. The NTA stated that Arevalo was “required to provide the 

INS, in writing, with [his] full mailing address and telephone number.” The 

NTA warned Arevalo-Martinez that if he failed to provide an address, the 

Government “[was] not [] required to provide [him] with written notice of 

[his] hearing.” Arevalo-Martinez signed the NTA and waived his right to a 

10-day waiting period prior to his hearing. Shortly after his release, ArevaloMartinez left Texas and moved to California to be with his pregnant 

girlfriend. 

On November 16, 2005, DHS commenced removal proceedings 

against Arevalo-Martinez by filing an NTA charging him as removable under 

8 U.S.C. § 1182(a)(6)(A)(i). Arevalo-Martinez did not appear at the hearing.

On November 30, 2005, the Immigration Judge (“IJ”) entered an in absentia 

removal order against Arevalo-Martinez and indicated that notice of the

removal hearing “was not given to the respondent because the respondent 

failed to provide the court with his[] address as required . . . .” The IJ ordered 

Arevalo-Martinez removed to El Salvador. 

On August 18, 2018, ICE detained Arevalo-Martinez. He filed a 

motion to vacate the in absentia order and terminate proceedings. A different

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IJ granted Arevalo-Martinez’s motion to vacate the order and terminated the 

removal proceedings on August 22, 2018. The DHS did not oppose the 

motion, but it appealed the decision to the BIA. 

The BIA sustained the appeal and affirmed the November 2005 

absentia order of removal, concluding that Arevalo-Martinez failed to 

provide his address as required and was thus not entitled to notice of his 

removal hearing. The BIA further noted that Pereira v. Sessions, 138 S. Ct. 

2105 (2018), does not support termination of the proceedings considering 

Matter of Bermudez-Cota, 27 I & N Dec. 441, 447 (BIA 2018), wherein the 

BIA held that a NTA without a date and time does vest the IJ with jurisdiction 

as long as a notice of hearing specifying this information is later sent to the 

alien. This appeal follows.

II. STANDARD OF REVIEW

The IJ’s and the BIA’s factual findings are reviewed for substantial 

evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). The substantial 

evidence standard requires that the decision (1) be based on the evidence 

presented and (2) be substantially reasonable. Sharma v. Holder, 729 F.3d 

407, 411 (5th Cir. 2013). Under the substantial evidence standard, this court 

may not reverse a factual finding unless the evidence “compels” such a 

reversal—i.e., the evidence must be “so compelling that no reasonable 

factfinder could conclude against it.” Wang v. Holder, 569 F.3d 531, 536–37 

(5th Cir. 2009). It is the petitioner’s burden to demonstrate that the evidence 

compels a contrary conclusion. Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 

2005). Legal questions are reviewed de novo. Zhu, 493 F.3d at 594.

III. DISCUSSION

Arevalo-Martinez argues that the BIA erred in affirming the 2005 

order of removal because the NTA from September 11, 2005 omitted the date 

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and time of his hearing1 and was therefore defective. Since the NTA was 

defective, he contends that the IJ did not have jurisdiction to enter the order 

for an in-absentia removal and that he did not have proper notice of his 

removal proceedings. We disagree.

A. IJ’s Jurisdiction

The IJ’s authority to conduct removal proceedings begins when a 

“charging document” is filed with the immigration court. 8 C.F.R. 

§ 1003.14(a). “[A] notice to appear is sufficient to commence proceedings 

even if it does not include the time, date, or place of the initial hearing.” 

Pierre-Paul v. Barr, 930 F.3d 684, 693 (5th Cir. 2019), cert denied, 140 S. Ct. 

2718 (2020), abrogated in part on other grounds by Niz-Chavez v. Garland, 141 

S. Ct. 1474 (2021). Under Pierre-Paul, the September 2005 NTA was 

sufficient to confer jurisdiction on the immigration court even though the 

NTA failed to include the time and date for Arevalo-Martinez’s hearing.

In Arevalo-Martinez’s view, Pereira v. Sessions, 138 S. Ct. 2105 (2018), 

alters the analysis and supports the termination of his removal proceedings.

Title 8 U.S.C. § 1229b(b)(1) allows the Attorney General to cancel the 

removal of a nonpermanent resident if the person has, inter alia, “been 

physically present in the United States for a continuous period of not less 

than 10 years immediately preceding the date of such application.” That 

continuous period terminates when the nonpermanent resident “is served a 

notice to appear under section 1229(a) . . . .” 8 U.S.C. § 1229b(d)(1)(A). In 

Pereira, the Court held that a purported notice to appeal that “fails to specify 

either the time or place of [] removal proceedings” does not trigger the stoptime rule under 8 U.S.C. § 1229b(b)(d)(1)(A). Pereira, 138 S. Ct. at 2110. 

1 Arevalo-Martinez incorrectly claims that the NTA omitted the location of his 

hearing as well. The location is printed on the NTA. 

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Arevalo-Martinez argues that the same principle applies here, namely 

that the September 2005 NTA was defective because it omitted the date and 

time of his hearing. Though he argues that Pereira altered NTA requirements 

from Pierre-Paul, Pierre-Paul was decided in light of and after Pereira. See 

Pierre-Paul, 930 F.3d at 689–690. We have already rejected the argument that 

Arevalo-Martinez now presents. See Pierre-Paul, 930 F.3d at 690. (“Even 

though [the] notice to appear did not include the time and date of [the] initial 

hearing, the regulations do not require this information.”). We also find it 

instructive that “the overwhelming chorus of our sister circuits [] have 

already rejected similar Pereira-based challenges.” Id. at 689.

Even if Arevalo-Martinez is correct that his NTA was deficient, we 

have already determined that 8 C.F.R. § 1003.14 is a claim-processing rule 

rather than a jurisdictional bar. Id. at 691. Arevalo-Martinez’s argument that 

the September 2005 NTA did not confer jurisdiction on the IJ is therefore 

incorrect.

B. Notice

Arevalo-Martinez next argues that even if the IJ had jurisdiction, his 

removal proceedings should be terminated because he did not receive proper 

notice. We disagree.

Title 8 C.F.R. § 1003.18(b) instructsthat an NTA should include “the 

time, place and date of the initial removal hearing, where practicable” but 

“[n]o such notice shall be required for an alien not in detention if the alien 

has failed to provide the address required . . . .” Moreover, “if the alien fails 

to provide a mailing address in accordance with the statutory requirements, 

he is not entitled to written notice of his removal hearing.” Mauricio-Benitez 

v. Sessions, 908 F.3d 144, 147 (5th Cir. 2018).

The record indicates that Arevalo-Martinez did not provide a mailing 

address. Though he now claims that he provided an address that he cannot 

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recall, we conclude that the BIA’s decision was supported by substantial 

evidence.

IV. CONCLUSION

For the aforementioned reasons, the petition for review is DENIED.

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