Sevilla-Hernandez v. Garland ( 2021 )

18-2291
Sevilla-Hernandez v. Garland
BIA
Straus, IJ
A200 941 560
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 9th day of November, two thousand twenty-
5 one.
6
7 PRESENT:
8 GUIDO CALABRESI,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 AXEL FAVIAN SEVILLA-HERNANDEZ,
15 Petitioner,
16
17 v. 18-2291
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jon E. Jessen, Law Offices Jon E.
24 Jessen LLC, Stamford, CT.
25
26 FOR RESPONDENT: Ethan P. Davis, Acting Assistant
27 Attorney General; Andrew N.
28 O’Malley, Senior Litigation
29 Counsel; Sunah Lee, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
1 Department of Justice, Washington,
2 DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Axel Favian Sevilla-Hernandez, a native and
9 citizen of El Salvador, seeks review of a July 9, 2018,
10 decision of the BIA affirming the October 6, 2017 decision
11 of an Immigration Judge (“IJ”) denying his motion to
12 rescind his removal order and reopen his removal
13 proceedings. In re Axel Favian Sevilla-Hernandez, No. A 200
14 941 560 (B.I.A. July 9, 2018), aff’g No. A 200 941 560
15 (Immig. Ct. Hartford Oct. 6, 2017). We assume the parties’
16 familiarity with the underlying facts and procedural
17 history.
18 Under the circumstances of this case, we consider both
19 the IJ’s and the BIA’s opinions “for the sake of
20 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448
21 F.3d 524, 528 (2d Cir. 2006). Our review is generally
22 limited to the reasons given by the BIA, i.e., “we may
2
1 consider only those issues that formed the basis for that
2 decision.” Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
3 104, 122 (2d Cir. 2007).
4 Because Sevilla-Hernandez timely petitioned for review
5 only from the agency’s decision denying his motion to
6 rescind and reopen, our review is limited to that decision,
7 and we cannot review the underlying in absentia removal
8 order. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d
9 83, 89–90 (2d Cir. 2001). Because we cannot reach the
10 underlying in absentia removal order, Sevilla-Hernandez’s
11 argument that the IJ erred in finding him removable based
12 on information in a record created by the Department of
13 Homeland Security is not properly before us. See id.14 Moreover, even assuming that argument relates to the
15 motion to rescind and reopen, we do not reach it because
16 Sevilla-Hernandez did not exhaust it before the agency.
17 See Lin Zhong, 480 F.3d at 122–24. Sevilla-Hernandez does
18 not dispute this failure to exhaust, and instead argues
19 that we may grant relief nunc pro tunc. But the authority
20 he cites does not excuse a failure to exhaust or authorize
21 us to consider an issue that was never raised before the
3
1 agency. See Edwards v. INS, 393 F.3d 299, 304–08 (2d Cir.
2 2004).
3 Sevilla-Hernandez has otherwise waived review of the
4 agency’s decisions because he does not challenge any of the
5 agency’s stated reasons for denying his motion to rescind
6 and reopen. See Yueqing Zhang v. Gonzales, 426 F.3d 540,
7 541 n.1, 545 n.7 (2d Cir. 2005) (petitioner abandons issues
8 and claims not raised in his brief).
9 For the foregoing reasons, the petition for review is
10 DENIED. All pending motions and applications are DENIED
11 and stays VACATED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
4