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United States Court of Appeals, Second Circuit.

Jose Eduardo SEVILLA-HERNANDEZ, Petitioner, v. William P. BARR, United States Attorney General, Respondent.


Decided: August 17, 2020

PRESENT: GUIDO CALABRESI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. FOR PETITIONER: Jon E. Jessen, Law Offices Jon E. Jessen, LLC, Stamford, CT. FOR RESPONDENT: Ethan P. Davis, Acting Assistant Attorney General; Andrew N. O'Malley, Senior Litigation Counsel; Sunah Lee, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.


Petitioner Jose Eduardo Sevilla-Hernandez, a native and citizen of El Salvador, seeks review of a July 9, 2018, decision of the BIA affirming the October 6, 2017 decision of an Immigration Judge (“IJ”) denying his motion to rescind his removal order and reopen his removal proceedings. In re Jose Eduardo Sevilla-Hernandez, No. A XXX XX1 559 (B.I.A. July 9, 2018), aff'g No. A XXX XX1 559 (Immig. Ct. Hartford Oct. 6, 2017). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we consider both the IJ's and the BIA's opinions “for the sake of completeness.” Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). Our review is generally limited to the reasons given by the BIA, i.e., “we may consider only those issues that formed the basis for that decision.” Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122 (2d Cir. 2007).

Because Sevilla-Hernandez timely petitioned for review only from the agency's decision denying his motion to rescind and reopen, our review is limited to that decision, and we cannot review the underlying in absentia removal order. See Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 89–90 (2d Cir. 2001). Because we cannot reach the underlying in absentia removal order, Sevilla-Hernandez's argument that the IJ erred in finding him removable based on information in a record created by the Department of Homeland Security is not properly before us. See id.

Moreover, even assuming that argument relates to the motion to rescind and reopen, we do not reach it because Sevilla-Hernandez did not exhaust it before the agency. See Lin Zhong, 480 F.3d at 122–24. Sevilla-Hernandez does not dispute this failure to exhaust, and instead argues that we may grant relief nunc pro tunc. But the authority he cites, does not excuse a failure to exhaust or authorize us to consider an issue that was never raised before the agency. See Edwards v. INS, 393 F.3d 299, 304–08 (2d Cir. 2004).

Sevilla-Hernandez has otherwise waived review of the agency's decisions because he does not challenge any of the agency's stated reasons for denying his motion to rescind and reopen. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (petitioner abandons issues and claims not raised in his brief).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.

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