Filed: Dec. 08, 2010
Latest Update: Feb. 21, 2020
Summary: 09-5189-ag Modzelewski v. Holder BIA Weisel, IJ A028 775 175 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 (WIT
Summary: 09-5189-ag Modzelewski v. Holder BIA Weisel, IJ A028 775 175 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..
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09-5189-ag
Modzelewski v. Holder
BIA
Weisel, IJ
A028 775 175
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8th day of December, two thousand ten.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 LESZEK MODZELEWSKI, ALSO KNOWN AS
14 LESZEK MOZALEWSKI
15 Petitioner,
16
17 v. 09-5189-ag
18 NAC
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Przemyslaw Jan Bloch, Brooklyn, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Susan H. Houser, Senior
1 Litigation Counsel; Kate D. Balaban,
2 Trial Attorney, Office of
3 Immigration Litigation, U.S.
4 Department of Justice, Washington
5 D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 decision of the Board of Immigration Appeals (“BIA”), it is
9 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
10 review is DENIED.
11 Leszek Modzelewski, a native and citizen of Poland,
12 seeks review of a December 1, 2009, decision of the BIA
13 affirming the September 11, 2008, decision of Immigration
14 Judge (“IJ”) Robert D. Weisel denying his motion to rescind
15 an in absentia order of removal. In re Leszek Modzelewski,
16 No. A028 775 175 (BIA Dec. 1, 2009), aff’g No. A028 775 175
17 (Immig. Ct. N.Y. City Sept. 11, 2008). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 We review the denial of a motion to rescind an in
21 absentia removal order under the same abuse of discretion
22 standard applicable to motions to reopen. See Singh v.
23 Maghradze v. Gonzales, 462 F.3d 150, 152 (2d Cir. 2006). An
24 abuse of discretion may be found where the BIA’s decision
25 “provides no rational explanation, inexplicably departs from
2
1 established policies, is devoid of any reasoning, or
2 contains only summary or conclusory statements; that is to
3 say, where the Board has acted in an arbitrary or capricious
4 manner.” Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005)
5 (per curiam).
6 Under the circumstances of this case, we review both
7 the IJ’s and the BIA’s opinions “for the sake of
8 completeness.” Zaman v. Mukasey,
514 F.3d 233, 237 (2d Cir.
9 2008) (internal quotations omitted). An order of removal
10 entered in absentia may be rescinded only: (1) upon a motion
11 filed within 180 days after the date of the order of removal
12 if the alien demonstrates that the failure to appear was
13 because of exceptional circumstances; or (2) upon a motion
14 to reopen filed at any time if the alien demonstrates that
15 he did not receive notice as required or demonstrates that
16 he was in federal or state custody and the failure to appear
17 was through no fault of his own. 8 U.S.C. § 1229a(b)(5)(C).
18 The agency did not abuse its discretion in denying
19 Modzelewski’s motion to rescind by determining that
20 Modzelewski failed to establish that he had not received
21 notice of his hearing as required. When notice is sent by
22 regular mail, the agency may apply “some” presumption of
3
1 receipt if “the record establishes that the notice was
2 accurately addressed and mailed in accordance with normal
3 office procedures.” Lopes v. Gonzales, 468 F.3d 81, 85 (2d
4 Cir. 2006) (per curiam) (“Lopes I”). This presumption “does
5 no more than to shift a tie-breaking burden of proof to the
6 alien claiming non-receipt.” Lopes v. Mukasey,
517 F.3d
7 156, 160 (2d Cir. 2008) (“Lopes II”). In turn, the agency
8 has an obligation to “‘consider all relevant evidence,
9 including circumstantial evidence, offered to rebut th[e]
10 presumption.’” Alrefae v. Chertoff,
471 F.3d 353, 359 (2d
11 Cir. 2006) (quoting Lopes
I, 468 F.3d at 86) (alteration in
12 original).
13 As an initial matter, we decline to consider
14 Modzelewski’s unexhausted argument raised for the first time
15 in his brief to this Court that the IJ and BIA disregarded
16 the misspelling of his last name on the notice of his
17 hearing, see Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d
18 104, 119-20 (2d Cir. 2007), and conclude that the agency
19 reasonably found that Modzelewski’s hearing notice was sent
20 by regular mail to the address of record, see Lopes I,
468
21 F.3d at 85-86.
4
1 With respect to Modzelewski’s claim that the agency did
2 not properly weigh the evidence presented, we conclude that
3 the agency did not abuse its discretion in determining that
4 Modzelewski failed to overcome the slight presumption of
5 receipt in light of its reasonable findings that Modzelewski
6 had earlier refused to acknowledge personal service of his
7 notice to appear, had not provided supporting affidavits
8 other than his own, did not present evidence of actions
9 taken upon learning of the in absentia order, and did not
10 indicate that he had made any applications for relief prior
11 to his April 2000 hearing. See Matter of M-R-A-, 24 I&N
12 Dec. 665, 674 (BIA 2008). In addition, contrary to
13 Modzelewski’s argument, the agency reasonably found his case
14 distinguishable from the petitioner’s situation in Lopes I
15 and Lopes II because unlike the petitioner in those cases,
16 Modzelewski was not potentially eligible for relief from
17 removal at the time of his missed hearing, and Modzelewski
18 did not argue that any other factors, other than his own
19 statement of non-receipt, supported his claim. See Lopes
20 II, 517 F.3d at 157, 160; Lopes
I, 468 F.3d at 83, 85-86.
21 Accordingly, the agency did not abuse its discretion in
5
1 denying Modzelewski’s motion to rescind. See Singh, 462
2 F.3d at 152.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argumen t in this petition is
7 DENIED in accordance with Federal Rule of Appellate
8 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
13
6
