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.

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 Mark Semana Gaviola, a native and citizen of the Philippines, seeks review of the November 8, 2012, decision of the BIA affirming the December 21, 2010, decision of an Immigration Judge ("IJ"), which denied Gaviola's motion to rescind his in absentia removal order. In re Mark Semana Gaviola, No. A039 158 351 (B.I.A. Nov. 8, 2012), aff'g No. A039 158 351 (Immig. Ct. N.Y. City Dec. 21, 2010). We assume the parties' familiarity with the underlying facts and procedural history in this case.

Pursuant to 8 U.S.C. § 1229a(b)(5)(A), "[a]ny alien who, after written notice . . . has been provided to the alien or the alien's counsel of record, does not attend a proceeding . . ., shall be ordered removed in absentia" if it is established "by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable." An in absentia removal order may be rescinded, inter alia, upon a motion to reopen filed within 180 days after the date of the order of removal if the alien establishes "exceptional circumstances." 8 U.S.C. § 1229a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii). When an alien files a motion that seeks both rescission of an in absentia order, as well as reopening of proceedings based on new evidence, we treat the motion as comprising distinct motions to rescind and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). We review both the denial of a motion to rescind an in absentia removal order and the denial of a motion to reopen for abuse of discretion. Id.; Maghradze v. Gonzales, 462 F.3d 150, 152-53 & n.1 (2d Cir. 2006).

Construing Gaviola's motion before the IJ as both a motion to reopen and as a motion to rescind the in absentia order, the agency did not abuse its discretion in denying the motion. To the extent that Gaviola moved to reopen proceedings pursuant to 8 U.S.C. § 1229a(c)(7), he did not present any new, previously unavailable evidence, or any additional evidence at all, and accordingly the IJ did not abuse her discretion in declining to reopen proceedings. See 8 C.F.R. § 1003.2(c)(1); Norani v. Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006). To the extent that Gaviola moved to rescind the in absentia order, the motion, while timely, did not adequately allege exceptional circumstances which would warrant rescinding the order, as Gaviola stated only that his attorney had filed a motion to adjourn proceedings, and, by his own account, did not receive a reply to that motion. See 8 U.S.C. § 1229a(e)(1); Kulhawik v. Holder, 571 F.3d 296, 299 (2d Cir. 2009) (per curiam). Accordingly, the agency did not abuse its discretion in declining to rescind the in absentia order.**

Gaviola argues here for the first time that because his assault conviction was expunged in 2008, he is not removable as charged. As the government notes, this argument is unexhausted and we therefore do not consider it.*** See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).