Rodriguez v. Garland Creates Significant Advocacy Opportunity in the Fifth Circuit

The United States Court of Appeals for the Fifth Circuit is well known as a conservative jurisdiction. This makes a decision like Rodriguez v. Garland stand out even more. The Fifth Circuit ruled on Rodriguez v. Garland in September 2021 finding that pursuant to the Supreme Court’s analysis in Niz-Chavez, §1229(a) notice requirements must be included in a single document in the in absentia context, when an individual does not appear for a hearing and a removal order is issued in their absence. What this means for advocates is that if a notice to appear (NTA) does not include the time and place of the hearing, and a client is issued an in absentia removal order, then a motion to rescind a removal order and reopen removal proceedings can be filed at any time based on lack of notice under 8 U.S.C. § 1229a(b)(5)(C)(ii).

The Fifth Circuit reasoned, “Both the recission of an in absentia order provision and the stop-time rule provision specifically reference the § 1229(a) notice requirements. The Court’s separate interpretation of the § 1229(a) notice requirements in Niz-Chavez thus applies in the in absentia context.” Therefore, in the in absentia context the combination of a NTA and a subsequent notice of hearing mailed by the immigration court will not suffice; instead, notice requires a single document with the necessary information. This creates an important point of advocacy for attorneys working with clients in the Fifth Circuit with in absentia removal orders.


CASE SUMMARY OF RODRIGUEZ V. GARLAND, 15 F. 4th 351 (5th Cir. 2021).

  • Rodriguez is a citizen of Uruguay, who entered on a visitor visa in 2002. He adjusted status to that of a conditional permanent resident after marrying a U.S. citizen. He was served a NTA after he and his wife failed to file a required petition. The NTA did not include the time and date of his immigration court hearing. He did not receive the notice of hearing because he moved. He did not appear for his hearing in March 2018, and the immigration judge ordered him removed in absentia.
  • An immigration judge denied Rodriguez’s motion to rescind his in absentia removal order and reopen removal proceedings. The BIA dismissed his appeal, and he appealed to the United States Court of Appeals for the Fifth Circuit.
  • The Fifth Circuit found that pursuant to Niz-Chavez’s analysis of § 1229(a), a single document with the required information is needed in the in absentia context.
  • The Fifth Circuit vacated the BIA’s dismissal and remanded for further proceedings in line with Niz-Chavez v. Garland.


CILA worked with the National Immigration Litigation Alliance (NILA) in August 2021 to create a recorded training on Niz-Chavez, Pereira, and Notices to Appear to provide some information on these types of issues. Keep in mind that this is a dynamic and developing area of the law, and there have been more recent relevant cases issued since that training such as Matter of M-F-O-, 28 I&N Dec. 408 (BIA 2021) and Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). The training recording is available on CILA’s Appellate & Litigation Strategy webpage.

Moreover, if you would like to learn more about motions to reopen, watch CILA and CLINIC’s co-hosted training, Strategies for Working with Children Affected by MPP, Part 2: Equitable Tolling, Motions to Reopen, and Motions to Stay. While the training was created regarding impacts of the Migrant Protection Protocols (MPP) program, the content is widely applicable, and helpful to reference when preparing a motion to reopen. The training recording is available to view on CILA’s website.