Selvin Eduardo Maldonado-Serrano, a native and citizen of Honduras, was ordered removed in absentia in 2002 after failing to appear at a scheduled hearing on July 29, 2002. The initial Notice to Appear provided to him lacked a specific hearing date and time. However, a subsequent Notice of Hearing was mailed to his address of record advising him of the July 29, 2002 hearing date. In August 2018, Maldonado-Serrano filed a motion to reopen and rescind his removal order, arguing he did not receive proper notice. The Board of Immigration Appeals (BIA) denied this motion on June 11, 2025, applying the Supreme Court's recent ruling in Campos-Chaves v. Garland. The BIA determined that because a subsequent Notice of Hearing was provided, Maldonado-Serrano could not claim he lacked proper notice under the statute, even if the initial notice was defective. Maldonado-Serrano petitioned the Fifth Circuit for review of this denial.
The Fifth Circuit reviewed the BIA's denial under a highly deferential abuse-of-discretion standard. The court focused on the legal standard established in Campos-Chaves v. Garland, which clarified the notice requirements for rescinding an in absentia removal order. Under 8 U.S.C. § 1229a(b)(5)(C)(ii), an alien must demonstrate they did not receive proper notice of the missed hearing to be eligible for rescission. The court explained that Campos-Chaves holds that an alien is ineligible for rescission if notice of the hearing was provided in accordance with 8 U.S.C. § 1229(a)(2), even if the initial Notice to Appear under § 1229(a)(1) failed to include a hearing date and time. The court noted that a subsequent Notice of Hearing advising the alien of the hearing date constitutes proper notice under § 1229(a)(2). Maldonado-Serrano argued that he did not receive this subsequent Notice of Hearing despite providing a proper mailing address. However, the court found this argument unavailing because the BIA had previously determined, in a 2018 denial of his first motion to reopen, that he failed to rebut the presumption of delivery of the Notice of Hearing. The Fifth Circuit had previously denied a petition regarding this earlier determination in Maldonado-Serrano v. Whitaker. The court held that Maldonado-Serrano did not show the BIA abused its discretion by relying on that earlier determination. Furthermore, the court found no evidence that the BIA ignored his arguments regarding due process or statutory notice violations, as the BIA correctly applied Campos-Chaves to conclude the subsequent notice was sufficient. Finally, the court addressed the petitioner's challenge to the BIA's denial of sua sponte regulatory reopening. Citing Garcia-Gonzalez v. Garland, the court stated it lacks jurisdiction to consider challenges to the BIA's denial of sua sponte reopening under 8 C.F.R. § 1003.2(a).
The petition for review is dismissed in part and denied in part. The decision reinforces the strict application of the Campos-Chaves standard, confirming that a subsequent Notice of Hearing can cure defects in an initial Notice to Appear for the purpose of rescinding an in absentia removal order. Practically, this means aliens in similar situations who received a subsequent notice of their hearing date cannot claim lack of notice to rescind their removal orders, even if the initial notice was defective. The ruling also clarifies that the Fifth Circuit lacks jurisdiction to review denials of sua sponte reopening motions, leaving that avenue closed for future challenges in this circuit. The case is remanded to the BIA only insofar as the dismissal of the sua sponte claim is concerned, though the court's language suggests the petition is effectively closed.
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