   18-2640
   Orellana v. Barr
                                                                            BIA
                                                                     Mulligan, IJ
                                                                    A078 326 683
                           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 16th day of March, two thousand twenty.

   PRESENT:
            ROBERT A. KATZMANN,
                 Chief Judge,
            JON O. NEWMAN,
            SUSAN L. CARNEY,
                 Circuit Judges.
   _____________________________________

   LUIS FERNANDO ORELLANA,
            Petitioner,

                      v.                                  18-2640
                                                          NAC
   WILLIAM P. BARR, UNITED STATES
   ATTORNEY GENERAL,
            Respondent.
   _____________________________________

   FOR PETITIONER:                    David Jadidian, Esq., Jackson
                                      Heights, NY; Joseph Alexander
                                      Brophy, Brophy & Lenahan P.C.,
                                      Newtown Square, PA.
FOR RESPONDENT:             Jesse D. Lorenz, Trial Attorney;
                            Kohsei Ugumori, Senior Litigation
                            Counsel; Joseph H. Hunt, Assistant
                            Attorney General, United States
                            Department of Justice, Washington,
                            DC.

    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 Luis Fernando Orellana, a native and citizen

of Ecuador, seeks review of a BIA decision affirming the

decision of an Immigration Judge (“IJ”) denying Orellana’s

motion to reopen and for rescission of his in absentia removal

order.   In re Luis Fernando Orellana, No. A 078 326 683

(B.I.A. Aug. 30, 2018), aff’g No. A 078 326 683 (Immig. Ct.

N.Y. City Apr. 17, 2018).   We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

    Under the circumstances of this case, we have considered

the IJ’s decision as supplemented by the BIA.      Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   Motions to reopen

in absentia removal orders are governed by different rules

depending on whether the movant seeks to rescind the order or

present new evidence of eligibility for relief from removal.

See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In
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re M-S-, 22 I. & N. Dec. 349, 353–55 (BIA 1998).    Accordingly,

when, as here, an alien files a motion that seeks both

rescission of an in absentia removal order and reopening for

consideration of an application for relief from removal, we

treat the motion as including distinct motions to rescind and

to reopen.     See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d

Cir. 2006).    We review the denial of a motion to rescind an

in absentia removal order under the same abuse of discretion

standard applicable to motions to reopen.      See id.; see also

Maghradze v. Gonzales, 462 F.3d 150, 152 (2d Cir. 2006).

Motion to Rescind

    The law recognizes two grounds to rescind an in absentia

removal order: (1) the petitioner’s lack of notice of the

hearing, and (2) if the petitioner seeks rescission within

180 days of the order’s entry, exceptional circumstances for

failure   to   appear.   8   U.S.C.   § 1229a(b)(5)(C);   8 C.F.R.

§ 1003.23(b)(4)(ii).     Only the first ground is at issue here

because Orellana filed his motion 16 years after the agency

entered the in absentia removal order.

    We conclude that the agency did not abuse its discretion

in denying Orellana’s motion to rescind.      If, as here, notice

is “served via regular mail,” we apply “a less stringent,

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rebuttable presumption of receipt” than we do if it had been

served by certified mail. Silva-Carvalho Lopes v. Mukasey,

517 F.3d 156, 159 (2d Cir. 2008) (internal quotation marks

omitted).   We think the agency is due a slight presumption

that Orellana received notice of his December 2001 hearing

based on the following.      In February 2001, Orellana was

personally served with a Notice to Appear (“NTA”).     That NTA

placed him in removal proceedings, informed him that a hearing

date would be set, and warned him that he could be removed in

absentia if he failed to attend his hearing.    In July 2001,

a Notice of Hearing was mailed to him at the address he

provided.   He asserts that he did not receive the NTA setting

the date for a hearing.   Because the agency sent Orellana’s

hearing notice to his address of record, however, he is

presumed to have received that notice.   See id.

    Orellana did not rebut this presumption.       He failed to

inquire about the applicable proceedings for approximately 14

years despite being personally served with the NTA; he failed

to move to reopen until approximately one year after he was

detained and apparently learned of the removal order.        He

never submitted an application for asylum or gave the agency

any details regarding his allegation of past harm.           We

                              4
therefore affirm the agency’s denial of Orellana’s motion to

rescind.    See Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA

2008).

Motion to Reopen

   An alien seeking to reopen proceedings may file a motion

to reopen no later than 90 days after the date on which the

final    administrative      decision        was   rendered.    8 U.S.C.

§ 1229a(c)(7)(C)(i);       8 C.F.R.        § 1003.23(b)(1).       It   is

undisputed that Orellana’s motion to reopen, filed nearly 16

years after his removal order, was untimely.                    The time

limitation may be excused, however, to allow an individual to

apply for asylum “based on changed country conditions arising

in the country of nationality or the country to which removal

has been ordered.”        8 U.S.C. § 1229a(c)(7)(C)(ii); see also

8 C.F.R. § 1003.23(b)(4).            Also, the time period may be

tolled     to   account   for   an       applicant’s   having   received

ineffective assistance of counsel.           See Iavorski v. U.S. INS,

232 F.3d 124, 134 (2d Cir. 2000).             Orellana’s brief to this

Court does not assert a basis for extending the time for his

motion to reopen apart from the lack of hearing notice.            Thus,

he has waived any challenge regarding the timeliness of his

request to reopen to apply for asylum.             See Yueqing Zhang v.

                                     5
Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (holding that

a party’s “single conclusory sentence” in his brief regarding

a claim of error was tantamount to a waiver of that claim).

While Orellana argues that the BIA improperly relied on Matter

of A-B-, 27 I. & N. Dec. 316, 320 (A.G. 2018), for the

proposition that persecution based on domestic violence or

gang violence is not cognizable, we do not reach that issue

because he did not first establish that his untimely filing

should be excused to enable him to apply for asylum.

       Even absent Orellana’s waiver, the agency did not abuse

its discretion in denying the motion.            First, a motion to

reopen for purposes of allowing an application for relief

must     be     accompanied   by   an   application   and   supporting

evidence, yet Orellana filed no such application and made no

detailed allegations of past harm.          8 C.F.R. § 1003.23(b)(3)

(“Any motion to reopen for the purpose of acting on an

application for relief must be accompanied by the appropriate

application for relief and all supporting documents.”).            Nor

did he assert that any change in conditions rendered him newly

eligible for asylum.

       Orellana also did not state an ineffective assistance

claim.        To pursue an ineffective assistance claim, an alien

                                    6
must     first   substantially   comply   with the    procedural

requirements set forth in Matter of Lozada, 19 I. & N. Dec.

637 (BIA 1998).      Orellana failed to provide an affidavit

detailing his agreement with his former counsel; he did not

show that he informed his prior counsel of his allegations;

and he did not explain why he failed to file any complaint

against his attorney.     See Lozada, 19 I. & N. Dec. at 639.

“[A]n alien who has failed to comply substantially with

the Lozada requirements in h[is] motion to reopen before the

BIA forfeits h[is] ineffective assistance of counsel claim in

this Court.”     Jian Yun Zheng v. U.S. Dep’t of Justice, 409

F.3d 43, 47 (2d Cir. 2005).

       Orellana does not challenge the agency’s other grounds

for its denial of reopening or its decision not to reopen the

matter sua sponte.      His argument that, under Pereira v.

Sessions, 138 S. Ct. 2105 (2018), the agency’s jurisdiction

over his case was defective because his NTA did not include

a date and time for his prospective hearing, is foreclosed by

Banegas Gomez v. Barr, 922 F.3d 101, 105 (2d Cir. 2019).1




1Given our decision in Banegas Gomez, we deny the motion from the
Immigrant Rights Clinic of Washington Square Legal Services for
leave to file an amicus curiae brief.
                                 7
    For the foregoing reasons, the petition for review is

DENIED.   All pending motions and applications are DENIED and

stays VACATED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe,
                            Clerk of Court




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