United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED March 14, 2022 No. 19-60793 Lyle W. Cayce Clerk

Blas Eduardo Garcia,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A095 236 911

Before Jolly, Higginson, and Engelhardt, Circuit Judges. Stephen A. Higginson, Circuit Judge: Blas Eduardo Garcia petitions for review of two Board of Immigration Appeals (“BIA”) orders denying his motions to reopen. For the reasons set forth below, we DENY his petitions. I. Garcia is a native and citizen of Mexico who first entered the United States in 1994. He received administrative voluntary departure in 2001 and subsequently returned to the United States without having been admitted or paroled. In 2004, Garcia was sent a notice to appear (“NTA”) charging him Case: 19-60793 Document: 00516237001 Page: 2 Date Filed: 03/14/2022

No. 19-60793

as subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i). The NTA listed “a date to be set” and “a time to be set.” In 2007 an Immigration Judge (“IJ”) ordered Garcia removed from the United States. The BIA affirmed the removal order in 2008. Garcia was deported in 2010 and thereafter returned without inspection. In September 2018, Garcia filed a motion to reopen with the BIA. He argued in part that, under both Pereira v. Sessions, 138 S. Ct. 2105 (2018), and the plain meaning of 8 U.S.C. § 1229(a)(1)(G)(i), his NTA was deficient for failing to state the time and date of his removal proceedings. The BIA denied the motion, concluding in part that it was time-barred and that reopening the proceedings under Pereira v. Sessions was foreclosed by Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019). Garcia then filed a second motion to reopen seeking to apply for asylum and withholding of removal based on changed country conditions in Mexico. Garcia stated that he was recently diagnosed with HIV and was receiving antiviral treatment. He argued that country conditions and his own personal circumstances had changed since 2007 and that because of his diagnosis, he would be perceived as a member of the LGBT community and would accordingly face a substantial risk of persecution and/or torture on account of his membership in the particular social groups of: (1) “[h]omosexuals in Mexico (imputed)”; (2) “[i]ndividuals in Mexico who are HIV positive”; and (3) “HIV positive men in Mexico.” The BIA denied the motion. The BIA concluded that the motion to reopen was untimely and that the evidence Garcia submitted failed to demonstrate the kind of materially changed country conditions that would warrant an exception to the time limit for motions to reopen. Rather, the submitted documents showed the “continuation of the same or similar conditions or circumstances” as those existing at the time of Garcia’s removal hearing in 2007. The BIA further determined that Garcia had “not made a prima facie showing that he will

2 Case: 19-