20-3781

Crisostomo-Temaj v. Garland

BIA

Hochul, IJ

A 208 908 012

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 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 24th day of October, two thousand twentytwo.

PRESENT:

GUIDO CALABRESI,

JOSÉ A. CABRANES,

JOSEPH F. BIANCO,

Circuit Judges.

_____________________________________

BELISARIO CRISOSTOMO-TEMAJ,

Petitioner,

v. 20-3781

NAC

MERRICK B. GARLAND, UNITED

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Jose Perez, Law Offices of Jose 

Perez, P.C., Syracuse, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant 

Attorney General; Holly M. Smith, 
2

Assistant Director; Nehal H. 

Kamani, Trial Attorney, Office of 

Immigration Litigation, 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 Belisario Crisostomo-Temaj, a native and 

citizen of Guatemala, seeks review of an October 5, 2020

decision of the BIA summarily affirming a May 15, 2020 

decision of an immigration judge (“IJ”), which denied his 

motion to rescind his order of removal entered in absentia.

In re Crisostomo-Temaj, No. A 208 908 012 (B.I.A. Oct. 5, 

2020), aff’g No. A 208 908 012 (Immig. Ct. Buffalo May 15, 

2020). We assume the parties’ familiarity with the 

underlying facts and procedural history.

Because the BIA issued a summary affirmance, we review

the IJ’s decision as the final agency decision. See Shunfu 

Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008). We review 

the agency’s denial of a motion to rescind for abuse of 

discretion. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 

2006). “An abuse of discretion may be found in those 
3

circumstances where the [agency]’s decision provides no 

rational explanation, inexplicably departs from established 

policies, is devoid of any reasoning, or contains only summary 

or conclusory statements; that is to say, where the [agency]

has acted in an arbitrary or capricious manner.” Kaur v. 

BIA, 413 F.3d 232, 233–34 (2d Cir. 2005) (per curiam)

(internal quotation marks and citation omitted). 

If a noncitizen fails to appear at his removal 

proceedings after being provided with written notice, the 

noncitizen “shall be ordered removed in absentia if [DHS] 

establishes by clear, unequivocal, and convincing evidence 

that the written notice was so provided and that the alien is 

removable.” 8 U.S.C. § 1229a(b)(5)(A). However, an order 

of removal entered in absentia “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 

(as defined in subsection (e)(1)).” Id. § 1229a(b)(5)(C)(i). 

“The term ‘exceptional 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 
4

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.” Id.

§ 1229a(e)(1). 

Crisostomo-Temaj alleged that he failed to appear at his 

hearing because his uncle who had planned to drive him 

unexpectedly had to pick up his own son, and the alternate 

driver he arranged had car trouble on the morning of the 

hearing. “[T]he alien bears the ultimate burden of 

introducing [corroborating] evidence without prompting from 

the IJ.” Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 

2009). Here, Crisotomo-Temaj failed to submit any affidavits 

or statements to corroborate his claim regarding the 

circumstances surrounding his failure to appear. Therefore, 

the IJ did not abuse its discretion in concluding that, given 

the absence of “specific, detailed evidence to corroborate 

his claim,” Crisotomo-Temaj had failed to demonstrate 

“exceptional circumstances” warranting rescission of the 

removal order. Certified Administrative Record at 58

(quoting 8 § 1229a(e)(1)).

Furthermore, the IJ did not deprive Crisostomo-Temaj of 
5

due process. Crisostomo-Temaj did not dispute receiving 

notice, nor did he challenge the “exceptional circumstances” 

standard, and the IJ is authorized to enter an in absentia

removal order when the noncitizen does not appear. See Jean 

Louis v. Att’y Gen. U.S., 914 F.3d 189, 192–93 (3d Cir. 2019) 

(“If we held that in absentia hearings violated due process, 

we would effectively invalidate 8 U.S.C. § 1229a(b)(5)(A), 

which specifically permits in absentia hearings. And we would 

perversely let aliens avoid removal by not attending their 

hearings. So in absentia removal orders do not categorically 

violate due process.”). 

Crisostomo-Temaj’s remaining arguments fail. He argues 

that the IJ improperly declined to waive the filing fee for 

his motion to reopen, but the record reflects that the IJ 

waived the fee. He also asserts that the agency did not 

consider the impact of COVID-19 restrictions on his failure 

to appear in January 2020, but New York State and federal 

restrictions did not begin until March 2020, see Melendez v. 

City of New York, 16 F.4th 992, 997–1001 (2d Cir. 2021), and 

Crisostomo-Temaj did not exhaust this issue by raising it in 

his motion to rescind or on appeal to the BIA, see Lin Zhong 
6

v. U.S. Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2007) 

(“usually . . . issues not raised to the BIA will not be 

examined by the reviewing court”).

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