     15-2670
     Espinal Paz v. Lynch
                                                                                       BIA
                                                                                Bukszpan, IJ
                                                                               A070 436 901

                            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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   20th day of December, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   CARLOS A. ESPINAL PAZ, AKA CARLOS
14   ARISTIDES ESPINAL PAZ,
15            Petitioner,
16
17                     v.                                            15-2670
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Craig Relles, Law Office of Craig
25                                       Relles, White Plains, N.Y.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General; Julie M.
29                                       Iversen, Senior Litigation Counsel;
30                                       James A. Hurley, Attorney, Office of
31                                       Immigration    Litigation,    United
32                                       States   Department    of   Justice,
33                                       Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5        Petitioner Carlos A. Espinal Paz, a native and citizen of

6    El Salvador, seeks review of a July 22, 2015, decision of the

7    BIA affirming a March 2, 2015, decision of an Immigration Judge

8    (“IJ”) denying Espinal’s motion to reconsider the previous

9    denial of his motion to rescind the in absentia order for his

10   removal.    In re Carlos A. Espinal-Paz, No. A070 436 901 (B.I.A.

11   July 22, 2015), aff’g No. A070 436 901 (Immig. Ct. N.Y. City

12   Mar. 2, 2015).     We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed the

15   decisions of both the IJ and BIA “for the sake of completeness.”

16   Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

17   2006).    When, as here, an alien files a petition from the denial

18   of a motion to reconsider, but not from the denial of the motion

19   of which reconsideration was sought, our review is limited to

20   the denial of the motion to reconsider.     See Kaur v. BIA, 413

21   F.3d 232, 233 (2d Cir. 2005); see also Stone v. INS, 514 U.S.

22   386, 405 (1995) (holding that the courts of appeals must treat

23   each petition for review as challenging only the BIA decision
                                      2
1    from which it was timely filed).            Accordingly, only the

2    agency’s denial of Espinal’s motion to reconsider is before us.

3           An alien seeking reconsideration must “specify the errors

4    of law or fact in the previous order and [support the motion]

5    with    pertinent    authority.”       8 U.S.C.   § 1229a(c)(6)(C);

6    8 C.F.R. § 1003.2(b)(1); see Jian Hui Shao v. Mukasey, 546 F.3d

7    138, 173 (2d Cir. 2008).     We review the agency’s denial of a

8    motion to reconsider for abuse of discretion.       See Jin Ming Liu

9    v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).     The agency “does

10   not abuse its discretion by denying a motion to reconsider where

11   the motion repeats arguments that the [agency] has previously

12   rejected.”     Id.    Here, the question is whether Espinal’s

13   motion for reconsideration identified any error in the agency’s

14   denial of his motion to rescind.        It did not, and the agency

15   did not abuse its discretion by denying the motion.

16          “An order entered in absentia in deportation proceedings

17   may be rescinded only upon a motion to reopen filed: (1) Within

18   180 days after the date of the order of deportation if the alien

19   demonstrates that the failure to appear was because of

20   exceptional circumstances beyond the control of the alien

21   (e.g., serious illness of the alien or serious illness or death

22   of an immediate relative of the alien, but not including less

23   compelling circumstances); or (2) At any time if the alien
                                        3
1    demonstrates that he or she did not receive notice or if the

2    alien demonstrates that he or she was in federal or state custody

3    and the failure to appear was through no fault of the alien.”

4    8 C.F.R. § 1003.23(b)(4)(iii)(A); see 8 U.S.C.

5    § 1229a(b)(5)(C).    “[A] lawyer’s inaccurate advice to his

6    client concerning an immigration hearing date can constitute

7    ‘exceptional circumstances’ excusing the alien’s failure to

8    appear at a deportation hearing . . . .”    Aris v. Mukasey, 517

9    F.3d 595, 599 (2d Cir. 2008).

10       First, the agency did not abuse its discretion in denying

11   reconsideration based on Espinal’s claim that he lacked notice

12   of his hearing.     See Jin Ming Liu, 439 F.3d at 111.    The IJ

13   already rejected this claim in the initial denial of Espinal’s

14   motion to rescind when she found that Espinal was physically

15   present in court (with counsel and an interpreter) when the

16   hearing date was announced.     Additionally, Espinal concedes

17   that he received oral notice of his hearing, and he has failed

18   to identify any authority requiring subsequent written notice.

19       Second, the agency did not abuse its discretion in denying

20   reconsideration based on Espinal’s claim that his counsel’s

21   ineffective assistance constituted “exceptional

22   circumstances” for his failure to appear.     See Aris, 517 F.3d

23   at 599.   Espinal is unable to demonstrate an abuse of discretion
                                     4
1    in the rejection of his ineffective assistance claim because,

2    as the agency observed, he had not complied with the procedural

3    requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637

4    (B.I.A. 1988).   See Garcia-Martinez v. Dep’t of Homeland Sec.,

5    448 F.3d 511, 513-14 & n.1 (“Under Lozada, an applicant who

6    claims ineffective assistance of counsel must submit (1) an

7    affidavit setting forth in detail the agreement with former

8    counsel concerning what action would be taken and what counsel

9    did or did not represent in this regard; (2) proof that the

10   applicant notified former counsel of the allegations of

11   ineffective assistance and allowed counsel an opportunity to

12   respond; and (3) if a violation of ethical or legal

13   responsibilities is claimed, a statement as to whether the

14   applicant has filed a complaint regarding counsel's conduct

15   with the appropriate disciplinary authorities and, if a

16   complaint has not been filed, an explanation for not doing

17   so.”).   “Because [Espinal] was obligated ‘to comply

18   substantially with the Lozada requirements’ and because he has

19   failed to do so, he has ‘forfeit[ed] [his] ineffective

20   assistance of counsel claim in this Court.’”   Garcia-Martinez,

21   448 F.3d at 514 (quoting Jian Yun Zheng v. U.S. Dep’t of Justice,

22   409 F.3d 43, 46 (2d Cir. 2005)).


                                    5
1        For the foregoing reasons, the petition for review is

2   DENIED.   As we have completed our review, any stay of removal

3   that the Court previously granted in this petition is VACATED.

4   Any pending request for oral argument in this petition is DENIED

5   in   accordance   with   Federal   Rule   of   Appellate   Procedure

6   34(a)(2), and Second Circuit Local Rule 34.1(b).

7                                  FOR THE COURT:
8                                  Catherine O’Hagan Wolfe, Clerk




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