         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




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