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
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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.
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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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