     18-2290
     Sevilla-Hernandez v. Barr
                                                                                 BIA
                                                                            Straus, IJ
                                                                         A200 941 559


                             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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 17th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JOSE EDUARDO SEVILLA-HERNANDEZ,
14            Petitioner,
15
16                      v.                                     18-2290
17                                                             NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Jon E. Jessen, Law Offices Jon E.
24                                      Jessen, LLC, Stamford, CT.
25
26   FOR RESPONDENT:                    Ethan P. Davis, Acting Assistant
27                                      Attorney General; Andrew N.
28                                      O’Malley, Senior Litigation
29                                      Counsel; Sunah Lee, Trial
30                                      Attorney, Office of Immigration
31                                      Litigation, United States
 1                               Department of Justice, Washington,
 2                               DC.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

 6   ORDERED, ADJUDGED, AND DECREED that the petition for review

 7   is DENIED.

 8       Petitioner Jose Eduardo Sevilla-Hernandez, a native and

 9   citizen of El Salvador, seeks review of a July 9, 2018,

10   decision of the BIA affirming the October 6, 2017 decision

11   of an Immigration Judge (“IJ”) denying his motion to

12   rescind his removal order and reopen his removal

13   proceedings.     In re Jose Eduardo Sevilla-Hernandez, No. A

14   200 941 559 (B.I.A. July 9, 2018), aff’g No. A 200 941 559

15   (Immig. Ct. Hartford Oct. 6, 2017).       We assume the parties’

16   familiarity with the underlying facts and procedural

17   history.

18       Under the circumstances of this case, we consider both

19   the IJ’s and the BIA’s opinions “for the sake of

20   completeness.”    Wangchuck v. Dep’t of Homeland Sec., 448

21   F.3d 524, 528 (2d Cir. 2006).       Our review is generally

22   limited to the reasons given by the BIA, i.e., “we may

                                     2
 1   consider only those issues that formed the basis for that

 2   decision.”   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

 3   104, 122 (2d Cir. 2007).

 4       Because Sevilla-Hernandez timely petitioned for review

 5   only from the agency’s decision denying his motion to

 6   rescind and reopen, our review is limited to that decision,

 7   and we cannot review the underlying in absentia removal

 8   order.   See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d

 9   83, 89–90 (2d Cir. 2001).   Because we cannot reach the

10   underlying in absentia removal order, Sevilla-Hernandez’s

11   argument that the IJ erred in finding him removable based

12   on information in a record created by the Department of

13   Homeland Security is not properly before us.   See id.

14       Moreover, even assuming that argument relates to the

15   motion to rescind and reopen, we do not reach it because

16   Sevilla-Hernandez did not exhaust it before the agency.

17   See Lin Zhong, 480 F.3d at 122–24.   Sevilla-Hernandez does

18   not dispute this failure to exhaust, and instead argues

19   that we may grant relief nunc pro tunc.   But the authority

20   he cites, does not excuse a failure to exhaust or authorize

21   us to consider an issue that was never raised before the
                                   3
 1   agency.   See Edwards v. INS, 393 F.3d 299, 304–08 (2d Cir.

 2   2004).

 3       Sevilla-Hernandez has otherwise waived review of the

 4   agency’s decisions because he does not challenge any of the

 5   agency’s stated reasons for denying his motion to rescind

 6   and reopen.   See Yueqing Zhang v. Gonzales, 426 F.3d 540,

 7   541 n.1, 545 n.7 (2d Cir. 2005) (petitioner abandons issues

 8   and claims not raised in his brief).

 9       For the foregoing reasons, the petition for review is

10   DENIED.   All pending motions and applications are DENIED

11   and stays VACATED.

12                               FOR THE COURT:
13                               Catherine O’Hagan Wolfe,
14                               Clerk of Court
15




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