18-2640 Orellana v. Barr BIA Mulligan, IJ A078 326 683 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 TO 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 16th day of March, two thousand twenty. PRESENT: ROBERT A. KATZMANN, Chief Judge, JON O. NEWMAN, SUSAN L. CARNEY, Circuit Judges. _____________________________________ LUIS FERNANDO ORELLANA, Petitioner, v. 18-2640 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: David Jadidian, Esq., Jackson Heights, NY; Joseph Alexander Brophy, Brophy & Lenahan P.C., Newtown Square, PA. FOR RESPONDENT: Jesse D. Lorenz, Trial Attorney; Kohsei Ugumori, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General, 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 Luis Fernando Orellana, a native and citizen of Ecuador, seeks review of a BIA decision affirming the decision of an Immigration Judge (“IJ”) denying Orellana’s motion to reopen and for rescission of his in absentia removal order. In re Luis Fernando Orellana, No. A 078 326 683 (B.I.A. Aug. 30, 2018), aff’g No. A 078 326 683 (Immig. Ct. N.Y. City Apr. 17, 2018). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Under the circumstances of this case, we have considered the IJ’s decision as supplemented by the BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Motions to reopen in absentia removal orders are governed by different rules depending on whether the movant seeks to rescind the order or present new evidence of eligibility for relief from removal. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In 2 re M-S-, 22 I. & N. Dec. 349, 353–55 (BIA 1998). Accordingly, when, as here, an alien files a motion that seeks both rescission of an in absentia removal order and reopening for consideration of an application for relief from removal, we treat the motion as including distinct motions to rescind and to reopen. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). We review the denial of a motion to rescind an in absentia removal order under the same abuse of discretion standard applicable to motions to reopen. ...
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