17-1604 Orellana-Molina v. Barr BIA Straus, IJ A200 001 007 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 24th day of April, two thousand nineteen.

PRESENT: REENA RAGGI, PETER W. HALL, SUSAN L. CARNEY, Circuit Judges. _____________________________________

FRANCISCO JAVIER ORELLANA- MOLINA, Petitioner,

v. 17-1604 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Saad Ahmad, Fremont, CA.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Anthony P. Nicastro, Assistant Director; Sheri R. Glaser, Trial Attorney, Office of Immigration Litigation, 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 Francisco Javier Orellana-Molina, a native

and citizen of Honduras, seeks review of a BIA decision

affirming an Immigration Judge’s (“IJ”) denial of Orellana-

Molina’s motion for reconsideration of an earlier IJ decision

denying his motion to rescind his in absentia removal order

and to reopen his removal proceedings. See In re Francisco

Javier Orellana-Molina, No. A 200 001 007 (B.I.A. Apr. 27,

2017), aff’g No. A 200 001 007 (Immig. Ct. Hartford Oct. 21,

2016). Under the circumstances of this case, we review the

IJ decision denying reconsideration as supplemented by the

BIA. See Yan Chen v. Gonzales,

(2d Cir.

2005). Only the denial of reconsideration is before us, see

Ke Zhen Zhao v. U.S. Dep’t of Justice,

, 89–90 (2d

Cir. 2001), which we review for abuse of discretion, see Jin

2 Ming Liu v. Gonzales,

(2d Cir. 2006). In

so doing, we assume the parties’ familiarity with the

underlying facts and procedural history in this case.

A motion to reconsider must “specify the errors of law

or fact” in the prior decision. See 8 U.S.C.

§ 1229a(c)(6)(C);

(b)(2); see also Ke Zhen

Zhao v. U.S. Dep’t of Justice, 265 F.3d at 90. We will find

an abuse of discretion “only in those limited circumstances

where the BIA’s decision (1) provides no rational

explanation, (2) inexplicably departs from established

policies, (3) is devoid of any reasoning, or (4) contains

only summary or conclusory statements.” Maghradze v.

Gonzales,

(2d Cir. 2006) (internal quotation

marks omitted). We find no such abuse of discretion here.

In relevant part, Orellana-Molina moved to rescind his

removal order, which was entered in absentia in 2007 after he

twice failed to appear for hearings. He alleged that he did

not receive notice. Although a motion to rescind for lack

of notice may be filed at any time, Orellana-Molina had the

burden to show that he did not receive notice. See 8 U.S.C.

3 § 1229a(b)(5)(C)(ii);

(b)(4)(ii). A

removal order may be entered in absentia if written notice of

the hearing was sent to the alien’s most recent address. See

(a)(1)(F), 1229a(b)(5)(A). An alien is

deemed to have constructive notice and, thus, to be ineligible

for rescission of an in absentia removal order, if he

“thwarted delivery by relocating and failing to provide a

change of address.” Maghradze v. Gonzales,

.

In his motion for reconsideration, Orellana-Molina

asserted that the hearing notice was sent to an incorrect

address, such that there was no basis to conclude that he

thwarted its delivery. He pointed out that the Form I-213

listed a correct New Haven address, but the notices were sent

to a different street address and zip code in New Haven. The

facts are more complicated. The notices were sent to the New

Haven address Orellana-Molina himself provided at the time he

requested a change of venue to Connecticut, and he was

personally served with the order transferring venue, which

listed the allegedly incorrect address. As Orellana-Molina

conceded, he never moved to Connecticut. In these

4 circumstances, where notice was sent to the address of record,

Orellana-Molina is deemed to have constructive notice of his

hearing. See

It was Orellana-Molina’s own failure to

provide the agency with a correct and current address that

caused the notice to be undeliverable. Absent any error in

this finding, which Orellana-Molina has not shown here, the

agency did not abuse its discretion by denying

reconsideration. See 8 U.S.C. § 1229a(c)(6)(C);

(b)(2); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

F.3d at 90.

Moreover, because Orellana-Molina was advised of the

change of address requirement and concedes that he did not

live at the address he himself provided, he cannot demonstrate

any due process violations. Cf. Peralta-Cabrera v. Gonzales,

, 843–46 (7th Cir. 2007)(remanding to BIA for

lack of proper service where government improperly addressed

petitioner’s hearing notice and petitioner did not make

himself “unreachable” because he was living at correct

address); Romero-Morales v. INS,

, 130–31 (2d Cir.

1994) (granting petition and cautioning against “blind

5 application” of in absentia deportation without “close

examination” of facts of case where IJ issued order despite

knowing about pending motion for change of venue and asylum

application).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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