Orellana v. Barr

Summary

The Second Circuit denied a petition for review of the BIA's denial of a motion to rescind an in absentia removal order and a motion to reopen. The court held that the petitioner failed to rebut the presumption of receipt of a hearing notice sent by regular mail, and his motion to reopen was untimely (filed 16 years later) with no valid excuse for the delay, as he waived arguments regarding changed country conditions and ineffective assistance of counsel by not complying with *Lozada* requirements. The court also rejected the petitioner's *Pereira v. Sessions* jurisdictional challenge as foreclosed by *Banegas Gomez v. Barr*. Key topics include in absentia removal orders, rescission, notice presumption, untimely motions to reopen, and ineffective assistance of counsel in immigration proceedings.

Holdings

1. The agency did not abuse its discretion because Orellana failed to rebut the presumption of receipt of the hearing notice.
2. The agency did not abuse its discretion because Orellana waived any challenge to timeliness by not asserting a basis for extending the time, and even absent waiver, he failed to file an application or show changed country conditions or comply with Lozada requirements for ineffective assistance.

Questions Presented

1. Whether the agency abused its discretion in denying the motion to rescind the in absentia removal order based on lack of notice.
2. Whether the agency abused its discretion in denying the motion to reopen as untimely and without a basis for excusing the time limit.

Disposition

denied