    10-1961-ag                                                                     BIA
    Durgaj v. Holder                                                           Lamb, IJ
                                                                           A073 580 327
                        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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 5th day of April, two thousand twelve.

    PRESENT:
             ROSEMARY S. POOLER,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                 Circuit Judges.
    _________________________________________

    BARDH DURGAJ,
             Petitioner,

                       v.                                     10-1961-ag
                                                              NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONER:                Caridad Pastor Cardinale, Troy,
                                   Michigan.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Thomas B. Fatouros, Senior
                                   Litigation Counsel; Annette M.
                                   Wietecha, Office of Immigration
                                   Litigation, United States Department
                                   of Justice, Washington, D.C.
    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 Bardh Durgaj, a native and citizen of

Albania, seeks review of a May 12, 2010 order of the BIA

affirming the February 2, 2009 decision of Immigration Judge

(“IJ”) Elizabeth A. Lamb, which denied his motion to reopen.

 In re Bardh Durgaj, No. A073 580 327 (B.I.A. May 12, 2010),

aff’g No. A073 580 327 (Immig. Ct. N.Y. City Feb. 2, 2009).

We assume the parties’ familiarity with the underlying facts

and procedural history of the case.

     Under the circumstances of this case, we have reviewed

the decision of the BIA.     See Yan Chen v. Gonzales, 417 F.3d

268, 271 (2d Cir. 2005).    The applicable standards of review

are well-established.    See Debeatham v. Holder, 602 F.3d

481, 484 (2d Cir. 2010); Aliyev v. Mukasey, 549 F.3d 111,

115-16 (2d Cir. 2008).     An order of removal entered in

absentia may be rescinded only upon: (1) a motion filed

within 180 days after the date of the order of removal if

the alien demonstrates that the failure to appear was

because of exceptional circumstances; or (2) a motion to

reopen filed at any time if the alien demonstrates that he

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did not receive notice as required or demonstrates that he

was in federal or state custody and the failure to appear

was through no fault of his own.   8 U.S.C. § 1229a(b)(5)(C).

    The only issue before us is whether the agency erred in

finding that Durgaj received the required notice and thus

was not eligible for rescission of his in absentia removal

order, as Durgaj does not assert any exceptional

circumstances in his brief to this Court. The required

notice to an alien in removal proceedings consists of

written notice of the consequences of the failure to appear

at the proceedings against the alien in the notice to appear

(“NTA”), and written notice given in person to the alien

specifying any change or postponement in the time and place

of such proceedings.*   8 U.S.C. §§ 1229(a)(1), (2).   Durgaj

does not allege that he did not receive written notice, only

that he did not receive oral notice in Albanian.   There is

no requirement that an alien in removal proceedings be


    *
     While there is no requirement that an alien be given
oral notice of the consequences of failure to appear before
he is ordered removed in absentia, see 8 U.S.C.
§§ 1229(a)(1), (a)(2), 1229a(b)(5)(A), an alien who is given
oral notice in his native language of the date and time of a
hearing, and the consequences of failing to appear at that
hearing, and nonetheless fails to appear, is ineligible for
certain types of discretionary relief for ten years after
the entry of the in absentia removal order, see 8 U.S.C.
§ 1229a(b)(7).
                              3
notified orally of the consequences of failure to appear at

a hearing before removal is ordered in absentia, and a lack

of oral notice is not grounds for reopening proceedings

after an in absentia order has been entered.    See 8 U.S.C.

§§ 1229(a), 1229a(b)(5)(A), (C).    Furthermore, the record

clearly shows that with the service of the NTA, Durgaj

received written notice in English, and oral notice in

Albanian, of the consequences of failing to appear at any

scheduled hearing.    He further received written notice, in

English, prior to his August 12, 1999 hearing date, of the

consequences of failing to appear at that particular

hearing.    Consequently, the agency did not abuse its

discretion in denying Durgaj’s motion to reopen.

    For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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