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

(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,

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,

, 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

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,

, 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,

,

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