    16-1377
    Barczak v. Sessions
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A088 440 588
                               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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    8th day of November, two thousand seventeen.

    PRESENT:
             REENA RAGGI,
             PETER W. HALL,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    ANDREZEJ BARCZAK,
             Petitioner,

                          v.                                         16-1377
                                                                     NAC
    JEFFERSON B. SESSIONS III, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                       Nicholas J. Mundy, Brooklyn, N.Y.

    FOR RESPONDENT:                       Benjamin C. Mizer, Principal Deputy
                                          Assistant Attorney General; Briena
                                          L. Strippoli, Senior Litigation
                                          Counsel; Jenny C. Lee, Trial
                                          Attorney, 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 in part and DISMISSED in part.

    Petitioner Andrezej Barczak, a native and citizen of

Poland, seeks review of an April 4, 2016 decision of the BIA

affirming a January 10, 2015 decision of an Immigration Judge

(“IJ”) denying Barczak’s motion to rescind his in absentia

removal order and reopen his proceedings.         In re Andrezej

Barczak, No. A088 440 588 (B.I.A. Apr. 4, 2016), aff’g No. A088

440 588 (Immig. Ct. N.Y. City Jan. 10, 2015).         We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

    Under the circumstances of this case, we have reviewed the

IJ’s decision as supplemented by the BIA.     See Xian Tuan Ye v.

Dep’t of Homeland Sec., 446 F.3d 289, 293 (2d Cir. 2006).        We

review the denial of a motion to rescind an in absentia removal

order for abuse of discretion, “which may be found if the

decision   ‘provides   no   rational   explanation,   inexplicably

departs from established policies, is devoid of any reasoning,

or contains only summary or conclusory statements.’”       Alrefae

v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006) (quoting Wei Guang

Wang v. B.I.A., 437 F.3d 270, 273 (2d Cir. 2006)).

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      An in absentia removal order may be rescinded “upon a motion

to reopen 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.”       8   U.S.C.

§ 1229a(b)(5)(C)(i); see also 8 C.F.R. § 1003.23(b)(4)(ii).

“‘[E]xceptional      circumstances’        refers     to     exceptional

circumstances (such as battery or extreme cruelty to the alien

or any child or parent of the alien, serious illness of the

alien, or serious illness or death of the spouse, child, or

parent   of   the   alien,   but   not   including    less   compelling

circumstances) beyond the control of the alien.”               8 U.S.C.

§ 1229a(e)(1); see also 8 C.F.R. § 1003.23(b)(4)(ii).             We have

observed that “[t]he [agency’s] standard for exceptional

circumstances [is] fairly stringent, both in terms of the

required severity of the circumstances and the proof required

to establish a claim.”       Alrefae, 471 F.3d at 358.

      The BIA did not abuse its discretion in denying Barczak’s

motion to rescind for failure to demonstrate exceptional

circumstances for his failure to appear.            Even assuming that

extreme fatigue could constitute a serious illness rising to

the level of exceptional circumstances, the BIA reasonably

found that Barczak did not provide any medical documentation

that he suffered from such extreme fatigue.            See id. (citing

                                    3
In re B-A-S-, 22 I. & N. Dec. 57, 58-59 (B.I.A. 1998) (“Where

an alien argues that his failure to appear resulted from a

‘serious illness,’ we normally would expect specific, detailed

medical   evidence   to   corroborate   the   alien’s   claim.”)).

Further, aside from this documentation problem, the agency

reasonably determined that Barczak did not show that his failure

to appear was the result of circumstances “beyond [his]

control,” as required.      See 8 U.S.C. § 1229a(b)(5)(C)(i),

(e)(1); see also 8 C.F.R. § 1003.23(b)(4)(ii).

    Finally, as the government argues, we lack jurisdiction to

review the agency’s denial of sua sponte reopening.        See Ali

v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).    Although remand

is permitted “where the Agency may have declined to exercise

its sua sponte authority because it misperceived the legal

background and thought, incorrectly, that a reopening would

necessarily fail,” Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.

2009), this exception does not apply here.       Barczak asserts

that the agency “failed to apply the correct law”; he does not

identify any legal error, however, and instead argues that the

“totality of the circumstances” warranted reopening sua sponte.

We therefore lack jurisdiction to consider the denial of sua

sponte reopening.



                                4
    For the foregoing reasons, the petition for review is

DENIED in part as to the agency’s decision to deny Barczak’s

motion to rescind his in absentia removal order, and DISMISSED

in part as to the agency’s decision to decline to exercise its

sua sponte reopening authority.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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