Orellana v. Barr ( 2020 )

18-2640
Orellana v. Barr
BIA
Mulligan, IJ
A078 326 683
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 16th day of March, two thousand twenty.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
JON O. NEWMAN,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
LUIS FERNANDO ORELLANA,
Petitioner,
v. 18-2640
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: David Jadidian, Esq., Jackson
Heights, NY; Joseph Alexander
Brophy, Brophy & Lenahan P.C.,
Newtown Square, PA.
FOR RESPONDENT: Jesse D. Lorenz, Trial Attorney;
Kohsei Ugumori, Senior Litigation
Counsel; Joseph H. Hunt, Assistant
Attorney General, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Luis Fernando Orellana, a native and citizen
of Ecuador, seeks review of a BIA decision affirming the
decision of an Immigration Judge (“IJ”) denying Orellana’s
motion to reopen and for rescission of his in absentia removal
order. In re Luis Fernando Orellana, No. A 078 326 683
(B.I.A. Aug. 30, 2018), aff’g No. A 078 326 683 (Immig. Ct.
N.Y. City Apr. 17, 2018). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
Under the circumstances of this case, we have considered
the IJ’s decision as supplemented by the BIA. Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Motions to reopen
in absentia removal orders are governed by different rules
depending on whether the movant seeks to rescind the order or
present new evidence of eligibility for relief from removal.
See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In
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re M-S-, 22 I. & N. Dec. 349, 353–55 (BIA 1998). Accordingly,
when, as here, an alien files a motion that seeks both
rescission of an in absentia removal order and reopening for
consideration of an application for relief from removal, we
treat the motion as including distinct motions to rescind and
to reopen. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d
Cir. 2006). We review the denial of a motion to rescind an
in absentia removal order under the same abuse of discretion
standard applicable to motions to reopen. See id.; see also
Maghradze v. Gonzales, 462 F.3d 150, 152 (2d Cir. 2006).
Motion to Rescind
The law recognizes two grounds to rescind an in absentia
removal order: (1) the petitioner’s lack of notice of the
hearing, and (2) if the petitioner seeks rescission within
180 days of the order’s entry, exceptional circumstances for
failure to appear. 8 U.S.C. § 1229a(b)(5)(C); 8 C.F.R.
§ 1003.23(b)(4)(ii). Only the first ground is at issue here
because Orellana filed his motion 16 years after the agency
entered the in absentia removal order.
We conclude that the agency did not abuse its discretion
in denying Orellana’s motion to rescind. If, as here, notice
is “served via regular mail,” we apply “a less stringent,
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rebuttable presumption of receipt” than we do if it had been
served by certified mail. Silva-Carvalho Lopes v. Mukasey,
517 F.3d 156, 159 (2d Cir. 2008) (internal quotation marks
omitted). We think the agency is due a slight presumption
that Orellana received notice of his December 2001 hearing
based on the following. In February 2001, Orellana was
personally served with a Notice to Appear (“NTA”). That NTA
placed him in removal proceedings, informed him that a hearing
date would be set, and warned him that he could be removed in
absentia if he failed to attend his hearing. In July 2001,
a Notice of Hearing was mailed to him at the address he
provided. He asserts that he did not receive the NTA setting
the date for a hearing. Because the agency sent Orellana’s
hearing notice to his address of record, however, he is
presumed to have received that notice. See id.
Orellana did not rebut this presumption. He failed to
inquire about the applicable proceedings for approximately 14
years despite being personally served with the NTA; he failed
to move to reopen until approximately one year after he was
detained and apparently learned of the removal order. He
never submitted an application for asylum or gave the agency
any details regarding his allegation of past harm. We
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therefore affirm the agency’s denial of Orellana’s motion to
rescind. See Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA
2008).
Motion to Reopen
An alien seeking to reopen proceedings may file a motion
to reopen no later than 90 days after the date on which the
final administrative decision was rendered. 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). It is
undisputed that Orellana’s motion to reopen, filed nearly 16
years after his removal order, was untimely. The time
limitation may be excused, however, to allow an individual to
apply for asylum “based on changed country conditions arising
in the country of nationality or the country to which removal
has been ordered.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
8 C.F.R. § 1003.23(b)(4). Also, the time period may be
tolled to account for an applicant’s having received
ineffective assistance of counsel. See Iavorski v. U.S. INS,
232 F.3d 124, 134 (2d Cir. 2000). Orellana’s brief to this
Court does not assert a basis for extending the time for his
motion to reopen apart from the lack of hearing notice. Thus,
he has waived any challenge regarding the timeliness of his
request to reopen to apply for asylum. See Yueqing Zhang v.
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Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (holding that
a party’s “single conclusory sentence” in his brief regarding
a claim of error was tantamount to a waiver of that claim).
While Orellana argues that the BIA improperly relied on Matter
of A-B-, 27 I. & N. Dec. 316, 320 (A.G. 2018), for the
proposition that persecution based on domestic violence or
gang violence is not cognizable, we do not reach that issue
because he did not first establish that his untimely filing
should be excused to enable him to apply for asylum.
Even absent Orellana’s waiver, the agency did not abuse
its discretion in denying the motion. First, a motion to
reopen for purposes of allowing an application for relief
must be accompanied by an application and supporting
evidence, yet Orellana filed no such application and made no
detailed allegations of past harm. 8 C.F.R. § 1003.23(b)(3)
(“Any motion to reopen for the purpose of acting on an
application for relief must be accompanied by the appropriate
application for relief and all supporting documents.”). Nor
did he assert that any change in conditions rendered him newly
eligible for asylum.
Orellana also did not state an ineffective assistance
claim. To pursue an ineffective assistance claim, an alien
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must first substantially comply with the procedural
requirements set forth in Matter of Lozada, 19 I. & N. Dec.
637 (BIA 1998). Orellana failed to provide an affidavit
detailing his agreement with his former counsel; he did not
show that he informed his prior counsel of his allegations;
and he did not explain why he failed to file any complaint
against his attorney. See Lozada, 19 I. & N. Dec. at 639.
“[A]n alien who has failed to comply substantially with
the Lozada requirements in h[is] motion to reopen before the
BIA forfeits h[is] ineffective assistance of counsel claim in
this Court.” Jian Yun Zheng v. U.S. Dep’t of Justice, 409
F.3d 43, 47 (2d Cir. 2005).
Orellana does not challenge the agency’s other grounds
for its denial of reopening or its decision not to reopen the
matter sua sponte. His argument that, under Pereira v.
Sessions, 138 S. Ct. 2105 (2018), the agency’s jurisdiction
over his case was defective because his NTA did not include
a date and time for his prospective hearing, is foreclosed by
Banegas Gomez v. Barr, 922 F.3d 101, 105 (2d Cir. 2019).1
1Given our decision in Banegas Gomez, we deny the motion from the
Immigrant Rights Clinic of Washington Square Legal Services for
leave to file an amicus curiae brief.
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For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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