Andrade-Meza v. Bondi

• Court: Court of Appeals for the Second Circuit
• Decided: August 27, 2025
• Docket: 23-6057
• Status: Unpublished

Opinion

23-6057 Andrade-Meza v. Bondi BIA Brennan, IJ A200 034 824

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.

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 27th day of August, two thousand twenty-five.

PRESENT: JOHN M. WALKER, JR., RICHARD J. SULLIVAN, MYRNA PÉREZ, Circuit Judges. _____________________________________

VICTOR RAMON ANDRADE-MEZA, Petitioner,

v. 23-6057 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Daniel Christmann, Christmann Legal, Cornelius, NC. FOR RESPONDENT: Brett A. Shumate, Acting Assistant Attorney General; Sabatino F. Leo, Assistant Director; Madeline Henley, Trial Attorney, Office of Immigration Litigation, Civil Division, 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 Victor Ramon Andrade-Meza, a native and citizen of Honduras,

seeks review of a decision of the BIA affirming a decision of an Immigration Judge

(“IJ”) denying his motion to rescind his in absentia removal order and reopen his

removal proceedings. See In re Victor Ramon Andrade-Meza, No. A200 034 824

(B.I.A. Oct. 25, 2022), aff’g, No. A200 034 824 (Immigr. Ct. N.Y.C. Nov. 13, 2020).

We assume the parties’ familiarity with the underlying facts and procedural

history.

“[W]e review the decision of the IJ as supplemented by the BIA,” though we

will only consider the grounds for the IJ’s decision that the BIA relied on. See Yan

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Motions to reopen in absentia

removal proceedings are governed by different rules depending on whether the

movant seeks to rescind a final removal order or to present new evidence of 2 eligibility for relief from removal. See Song Jin Wu v. INS, 436 F.3d 157, 161 n.1

(2d Cir. 2006); In re M-S-, 22 I. & N. Dec. 349, 353–55 (B.I.A. 1998). Accordingly,

where, as here, an alien files a motion that seeks both rescission of an in absentia

removal order and the reopening of removal proceedings based on new evidence

of eligibility for relief, we treat the motion “as comprising two distinct motions,

which we review under different substantive standards.” Alrefae v. Chertoff, 471

F.3d 353, 357 (2d Cir. 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1 (2d

Cir. 2006). Nevertheless, we review both the denial of a motion to rescind an in

absentia removal order and the denial of a motion to reopen for abuse of discretion.

See Alrefae, 471 F.3d at 357; see also Kaur v. BIA, 413 F.3d 232, 233–34 (2d Cir. 2005)

(“An abuse of discretion may be found in those circumstances where the Board’s

decision provides no rational explanation, inexplicably departs from established

policies, is devoid of any reasoning, or contains only summary or conclusory

statements; that is to say, where the Board has acted in an arbitrary or capricious

manner.” (internal quotation marks omitted)).

A. Motion to Rescind

An order of removal entered in absentia “may be rescinded only . . . upon

[(1)] a motion to reopen filed within 180 days after the date of the order of removal

3 if the alien demonstrates that the failure to appear was because of exceptional

circumstances . . . or . . . [(2)] upon a motion to reopen filed at any time if the alien

demonstrates that the alien did not receive notice . . . and the failure to appear was

through no fault of the alien.” 8 U.S.C. § 1229a(b)(5)(C). Here, there is no

dispute that Andrade-Meza did not file his motion to reopen within 180 days after

the date of the order of removal, and he has not argued that he is entitled to the

benefit of equitable tolling, so the first exception clearly is not available. As to the

second exception, Andrade-Meza conceded that he received notice in his motion

to rescind before the IJ. See Hoodho v. Holder, 558 F.3d 184, 191–92 (2d Cir. 2009)

(considering an alien’s prior concession in removal proceedings). And to the

extent Andrade-Meza contends that he did not receive adequate notice, the BIA

correctly found that the argument had been waived. See Prabhudial v. Holder, 780

F.3d 553, 555 (2d Cir. 2015) (“[T]he BIA may refuse to consider an issue that could

have been, but was not, raised before an IJ.”). In any event, as the BIA noted,

Andrade-Meza was personally served with notice of his hearing, the record

reflects that Andrade-Meza was orally informed in Spanish of the hearing time

and place as well as the consequences for failing to appear, and Andrade-Meza

has offered no evidence, in his sworn affidavit or otherwise, suggesting that he did

4 not understand his obligation to appear at his hearing and the consequences for

failing to do so. Accordingly, the agency did not abuse its discretion in denying

Andrade-Meza’s motion to rescind.

B. Motion to Reopen

It is undisputed that Andrade-Meza’s 2020 motion to reopen was untimely

filed more than 15 years after his removal order became final in 2005. See 8 U.S.C.

§ 1229a(c)(7)(C)(i) (setting a 90-day deadline for motion to reopen); 8 C.F.R.

§ 1003.23(b)(1) (same). But the 90-day time limit does not apply if (1) reopening

is for the purpose of seeking asylum, (2) the motion “is based on changed country

conditions arising in the country of nationality or the country to which removal

has been ordered,” and (3) the evidence of such changed conditions “is material

and was not available and would not have been discovered or presented at the

previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

§ 1003.23(b)(4)(i). “When reviewing whether . . . evidence established changed

country conditions, the BIA must ‘compare the evidence of country conditions

submitted with the motion to those that existed at the time of the merits hearing

below.’” Tanusantoso v. Barr, 962 F.3d 694, 698 & n.10 (2d Cir. 2020) (quoting In re

S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)).

5 Here, the BIA did not err in finding that Andrade-Meza failed to establish a

material change in conditions in Honduras based on the death of his brother in

2018. As the agency correctly noted, Andrade-Meza only submitted evidence of

recent hardship suffered by his family, and he did not submit any evidence that

would have allowed the BIA to compare current conditions in Honduras to the

conditions at the time of his prior hearing. Accordingly, because the agency

reasonably concluded that Andrade-Meza failed to demonstrate a material change

in conditions in Honduras, it did not abuse its discretion in denying his motion to

reopen as untimely. Id.; see also 8 U.S.C. § 1229a(c)(7)(C).

* * *

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court