20-4105

Morraz Diaz v. Garland

BIA

Conroy, IJ

A216 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 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.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

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

New York, on the 12th 4 day of June, two thousand twenty5 three.

6

7 PRESENT:

8 JOSÉ A. CABRANES,

9 SUSAN L. CARNEY,

10 RICHARD J. SULLIVAN,

11 Circuit Judges.

12 _____________________________________

13

14 RUBEN ALFONSO MORRAZ DIAZ,

15 Petitioner,

16

17 v. 20-4105

18 NAC

19 MERRICK B. GARLAND, UNITED 

20 STATES ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Bruno Joseph Bembi,

25 Hempstead, NY.

26

27 FOR RESPONDENT: Brian Boynton, Acting Assistant

28 Attorney General; Holly M. Smith , 
2

1 Assistant Director; Aric A. 

2 Anderson, Trial Attorney, Office 

3 of Immigration Litigation, United 

4 States Department of Justice, 

5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a 

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

8 ORDERED, ADJUDGED, AND DECREED that the petition for review 

9 is GRANTED.

10 Petitioner Ruben Alfonso Morraz Diaz, a native and 

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

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

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

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

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

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

17 familiarity with the underlying facts and procedural history.

18 We have reviewed the decision of the IJ as supplemented 

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

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

21 rescind a removal order entered in absentia for abuse of 

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

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

24 provides no rational explanation, inexplicably departs from 
3

1 established policies, is devoid of any reasoning, or contains 

2 only summary or conclusory statements,” id. (internal 

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

4 or misapplied the governing law,” Abu Hasirah v. DHS, 478 

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

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

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

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

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

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

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

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

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

14 appear was because of exceptional circumstances.” Id.

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

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

17 appear” and thus does not require demonstration of 

18 exceptional circumstances, and the agency abuses its 

19 discretion when it issues an in absentia order based on such 

20 tardiness. Abu Hasirah, 478 F.3d at 477–78. 

21 Morraz Diaz was 35 minutes late to his 8:30 a.m. hearing
4

1 due to transit delays on New York City’s subway system. His 

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

3 he had pending applications for relief from removal. He 

4 submitted a detailed affidavit describing when he arrived at 

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

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

7 erred in concluding that he had failed to appear. See id. 

8 We have jurisdiction to consider Morraz Diaz’s argument on 

9 this point because issue exhaustion is not jurisdictional. 

10 See Lin Zhong v. U.S. Dep’t of Just., 480 F.3d 104, 121–22

11 (2d Cir. 2007); see also generally Santos-Zacaria v. Garland, 

12 143 S. Ct. 1103, 1111–16 (2023). Moreover, his specific 

13 legal argument is not barred by court-mandated principles of 

14 issue exhaustion given its relation to the arguments he raised 

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

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

17 contours of his argument below.”). 

18 For the foregoing reasons, the petition for review is 

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

20 REMANDED for further proceedings consistent with this 

21 order. 
5

1 All pending motions and applications are DENIED and stays 

2 VACATED.

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe,

5 Clerk of Court

6