09-5189-ag Modzelewski v. Holder BIA Weisel, IJ A028 775 175 

### 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 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 8 th** **day of December, two thousand ten.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR.,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_______________________________________** 11 12 **LESZEK MODZELEWSKI, ALSO KNOWN AS** 13 **LESZEK MOZALEWSKI** 14 Petitioner**,** 15 16 **v. 09-5189-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., U.S. ATTORNEY** 19 **GENERAL,** 20 Respondent **.** 21

**_______________________________________** 22 23 **FOR PETITIONER: Przemyslaw Jan Bloch, Brooklyn, New** 24 **York.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Susan H. Houser, Senior** 282 **Litigation Counsel; Kate D. Balaban,** 1 **Trial Attorney, Office of** 2 **Immigration Litigation, U.S.** 3 **Department of Justice, Washington** 4 **D.C.** 5 6 UPON DUE CONSIDERATION of this petition for review of a 7 decision of the Board of Immigration Appeals (“BIA”), it is 8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 9 review is DENIED. 10 Leszek Modzelewski, a native and citizen of Poland, 11 seeks review of a December 1, 2009, decision of the BIA 12 affirming the September 11, 2008, decision of Immigration 13 Judge (“IJ”) Robert D. Weisel denying his motion to rescind 14

an in absentiaorder of removal. In re Leszek Modzelewski , 15 No. A028 775 175 (BIA Dec. 1, 2009), aff’gNo. A028 775 175 16 (Immig. Ct. N.Y. City Sept. 11, 2008). We assume the 17 parties’ familiarity with the underlying facts and 18 procedural history in this case. 19 We review the denial of a motion to rescind an in 20 absentiaremoval order under the same abuse of discretion 21 standard applicable to motions to reopen. See Singh v. 22 Maghradze v. Gonzales, 462 F.3d 150, 152 (2d Cir. 2006). An 23 abuse of discretion may be found where the BIA’s decision 24 “provides no rational explanation, inexplicably departs from 253 established policies, is devoid of any reasoning, or 1 contains only summary or conclusory statements; that is to 2 say, where the Board has acted in an arbitrary or capricious 3
manner.” Kaur v. BIA , 413 F.3d 232, 233-34 (2d Cir. 2005) 4 (per curiam). 5 Under the circumstances of this case, we review both 6 the IJ’s and the BIA’s opinions “for the sake of 7 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 8 2008) (internal quotations omitted). An order of removal 9 entered in absentiamay be rescinded only: (1) upon a motion 10 filed within 180 days after the date of the order of removal 11 if the alien demonstrates that the failure to appear was 12 because of exceptional circumstances; or (2) upon a motion 13 to reopen filed at any time if the alien demonstrates that 14 he did not receive notice as required or demonstrates that 15 he was in federal or state custody and the failure to appear 16 was through no fault of his own. 8 U.S.C. § 1229a(b)(5)(C). 17 The agency did not abuse its discretion in denying 18 Modzelewski’s motion to rescind by determining that 19 Modzelewski failed to establish that he had not received 20 notice of his hearing as required. When notice is sent by 21 regular mail, the agency may apply “some” presumption of 224 receipt if “the record establishes that the notice was 1 accurately addressed and mailed in accordance with normal 2 office procedures.” Lopes v. Gonzales, 468 F.3d 81, 85 (2d 3 Cir. 2006) (per curiam) (“Lopes I” ) . This presumption “does 4 no more than to shift a tie-breaking burden of proof to the 5 alien claiming non-receipt.” Lopes v. Mukasey, 517 F.3d 6 156, 160 (2d Cir. 2008) (“Lopes II”). In turn, the agency 7 has an obligation to “‘consider all relevant evidence, 8 including circumstantial evidence, offered to rebut th[e] 9 presumption.’” Alrefae v. Chertoff, 471 F.3d 353, 359 (2d 10 Cir. 2006) (quoting Lopes I , 468 F.3d at 86) (alteration in 11 original). 12 As an initial matter, we decline to consider 13 Modzelewski’s unexhausted argument raised for the first time 14 in his brief to this Court that the IJ and BIA disregarded 15 the misspelling of his last name on the notice of his 16 hearing, see Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 17 104, 119-20 (2d Cir. 2007), and conclude that the agency 18 reasonably found that Modzelewski’s hearing notice was sent 19 by regular mail to the address of record, see Lopes I , 468 20 F.3d at 85-86. 215 With respect to Modzelewski’s claim that the agency did 1 not properly weigh the evidence presented, we conclude that 2 the agency did not abuse its discretion in determining that 3 Modzelewski failed to overcome the slight presumption of 4 receipt in light of its reasonable findings that Modzelewski 5 had earlier refused to acknowledge personal service of his 6 notice to appear, had not provided supporting affidavits 7 other than his own, did not present evidence of actions 8 taken upon learning of the in absentiaorder, and did not 9 indicate that he had made any applications for relief prior 10 to his April 2000 hearing. See Matter of M-R-A- , 24 I&N 11 Dec. 665, 674 (BIA 2008). In addition, contrary to 12 Modzelewski’s argument, the agency reasonably found his case 13 distinguishable from the petitioner’s situation in Lopes I 14 and Lopes IIbecause unlike the petitioner in those cases, 15 Modzelewski was not potentially eligible for relief from 16 removal at the time of his missed hearing, and Modzelewski 17 did not argue that any other factors, other than his own 18 statement of non-receipt, supported his claim. See Lopes 19

II , 517 F.3d at 157, 160; Lopes I, 468 F.3d at 83, 85-86. 20 Accordingly, the agency did not abuse its discretion in 216 denying Modzelewski’s motion to rescind. See Singh , 462 1 F.3d at 152. 2 For the foregoing reasons, the petition for review is 3 DENIED. As we have completed our review, any pending motion 4 for a stay of removal in this petition is DISMISSED as moot. 5 Any pending request for oral argumen t in this petition is 6 DENIED in accordance with Federal Rule of Appellate 7 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12 13