20

- 4105 Morraz Diaz v. Garland BIA Conroy
, IJ A 216 207 299 

### 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 APP ENDIX**  **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 t**  **he Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 12**  **th da**  **y of June**  **, two thousand twenty** 

**** 4 **three**

**.** 5 6 **PRESENT:** 7 **JOSÉ A. CABRANES**

**,** 8 **SUSAN L. CARNEY ,**  9 **RICHARD J. SULLIVAN ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **RUBEN ALFONSO MORRAZ DIAZ ,**  14 **Petitioner ,**  15 16

**v. 20** 

**- 4105**  17 **NAC** 18 **MERRICK B. GARLAND ,**  **UNITED** 19 **STATES ATTORNEY GENERAL,** 20 **Respondent**

**.** 21

**_____________________________________** 22 23 **FOR PETITIONER :**  Bruno Joseph Bembi, 24 Hempstead, NY

. 25 26 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 27 Attorney General ; Holly M. Smith , 282 Assistant Director; Aric A. 1 Anderson , Trial Attorney, Office 2 of Immigration Litigation, United 3 States Department of Justice, 4 Washington, D C. 5

UPON DUE CONSIDERATION of this petition for review of a 6

Board of Immigration Appeals (“BIA”) decision, it is hereby 7

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is GRANTED

. 9

Petitioner Ruben Alfonso Morraz Diaz , a native and 10

citizen of Nicaragua , seeks review of a decision of the BIA 11

affirming a decision of an Immigration Judge (“IJ”) denying 12

his motion to rescind his removal order and reopen his removal 13

proceedings

. In re Ruben Alfonso Morraz Diaz , No. A 216 207 14

299 (B.I.A. Nov. 16, 2020 ) , aff’g No. A 216 207 299 (Immig. 15

Ct. N.Y. C. Feb. 24, 2020 ). We assume the parties’ 16

familiarity with the underlying facts and procedural history. 17

We have reviewed the decision of the IJ as supplemented 18

by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 19

Cir. 2005). We review the agency’s denial of a motion to 20

rescind a removal order entered in absentia for abuse of 21

discretion

. Alrefae v. Chertoff , 471 F.3d 353, 357 (2d Cir. 22

2006). An abuse of discretion “may be found if the decision 23

provides no rational explanation, inexplicably departs from 243 established policies, is devoid of any reasoning, or contains 1

only summary or conclusory statements , ” id. ( inter nal 2

quotation marks omitted) , or if the agency “has misunderstood 3

or misapplied the governing law , ” Abu Hasi r ah v. DHS , 478 4

F.3d 474, 477 (2d Cir. 2007) . We review de novo the agency’s 5

“underlying conclusions of law.” Mardones v. McElroy, 197 6

F.3d 619, 624 (2d Cir. 1999)

. 7

Here, w e find an abuse of discretion. A noncitizen may 8

be ordered removed in absentia if, “after written notice .

. . 9

has been provided to the alien or the alien’s counsel of 10

record, [he] does not attend a proceeding.” 8 U.S.C. 11

§ 1229a(b)(5)(A). T he agency may rescind an in absentia 12

removal order “if the alien demonstrates that the failure to 13

appear was because of exceptional circumstances.” Id. 14

§ 1229 a(b)(5)(C)(i); 8 C.F.R. § 1003.23(b)(4)(ii). However, 15

“ a brief, innocent lateness does not constitute a failure to 16

appear” and thus does not require demonstration of 17

exceptional circumstances, and the agency abuses its 18

discretion when it issues an in abse ntia order based on such 19

tardiness. Abu Hasirah , 478 F.3d at 477

– 78. 20

Morraz Diaz was 35 minutes late to his 8:30 a.m. hearing 214 due to transit delays on New York City’s subway system

. H is 1

attorney was present, he had attended previous hearings , and 2

he ha d pending applications for relief from removal . He 3

submitted a detailed affidavit describing when he arrived at 4

the train station and the trains he took. Given the absence 5

of any evidence of intentional or lengthy delay, the agency 6

erred in conclud ing th at he had failed to appear. See i d. 7

W e have jurisdiction to consider Morraz Diaz’s argument on 8

this point because issue exhaustion is not jurisdictional. 9

See Lin Zhong v. U.S. Dep’t of Just

. , 480 F.3d 104, 121

– 22 10

(2d Cir. 2007) ; see also generally Santos

- Zacaria v. Garland , 11

143 S. Ct. 1103 , 1111

– 16 (2023) . Moreover, his specific 12

legal argument is not barred by court

- mandated principles of 13

issue exhaustion given its relation to the arguments he raised 14

below. See Gill v. INS , 420 F.3d 82, 86 (2d Cir. 2005) (“ [ W ] e 15

have never held that a petitioner is limited to the exact 16

contours of his argument below

. ”)

. 17

For the foregoing reasons, the petition for review is 18

GRANTED , the BIA’s decision is VACATED, and the case is 19

REMANDED for further proceedings consistent with this 20

order

. 215 All pending motions and applications are DENIED and stays 1

VACATED. 2

FOR THE COURT: 3 Catherine O ’ Hagan Wolfe , 4 Clerk of Court 5 6