#### Andrezej BARCZAK, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.

16-1377

United States Court of Appeals, Second Circuit.

November 8, 2017

FOR PETITIONER: Nicholas J. Mun-dy, 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.

PRESENT: REENA RAGGI, PETER W. HALL, DEBRA ANN LIVINGSTON, Circuit Judges.

*79SUMMARY ORDER

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. [ AXXX XXX XXX ] (B.I.A. Apr. 4, 2016), *aff'g*No. [ AXXX XXX XXX ] (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 con-clusory 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)).

An in absentia removal order may be rescinded “upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of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). “ ‘[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 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)(l); *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 extréme fatigue. *See id.*(citing *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 misper-ceived 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 *80consider the denial of sua sponte reopening.

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.