De Carvalho-Cruz v. Barr

18-2067 De Carvalho-Cruz v. Barr BIA Straus, IJ A098 323 097/098 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 15th day of September, two thousand twenty. PRESENT: JON O. NEWMAN, JOSEPH F. BIANCO, WILLIAM J. NARDINI, Circuit Judges.* _____________________________________ ANDRE DA SILVA, AKA ANDRE LUIZ DA SILVA, MONIELE CAMILA DE CARVALHO-CRUZ, AKA MONIELE CAMILA DA SILVA, Petitioners, v. 18-2067 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. * Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable. Circuit Judge Jon O. Newman has replaced Judge Hall on the panel for this matter. See 2d Cir. IOP E(b). _____________________________________ FOR PETITIONERS: Melinda M. Basaran, BK Law Firm LLC, Clifton, NJ. FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Holly M. Smith, Senior Litigation Counsel; David Kim, Trial Attorney, Office of Immigration Litigation, 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. Petitioners Andre Da Silva (“Andre”) and Moniele Camila De Carvalho-Cruz (“Moniele”), natives and citizens of Brazil, seek review of a June 15, 2018, decision of the BIA affirming a September 27, 2017, decision of an Immigration Judge (“IJ”) denying their motion to reopen their immigration proceedings and rescind their in absentia removal orders. In re De Carvalho-Cruz, No. A 098 323 097/098 (B.I.A. June 15, 2018), aff’g No. A 098 323 097/098 (Immig. Ct. Hartford Sept. 27, 2017). We assume the parties’ familiarity with the underlying facts and procedural history. 2 We have reviewed the IJ’s decision as modified and supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005); 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 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 ...

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