Donald Samedi v. U.S. Attorney General , 140 F. App'x 909 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 26, 2005
No. 05-12165 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A75-328-027
DONALD SAMEDI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 26, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Donald Samedi, a native and citizen of Haiti, through counsel, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) order denying Samedi’s motion to reopen and rescind
an in absentia removal order. Because Samedi’s removal proceedings commenced
after April 1, 1997, the permanent rules of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996)
(“IIRIRA”), apply. On appeal, Samedi argues that the BIA erred in affirming the
IJ’s denial of his motion to reopen because he ordered removed in absentia
without receiving proper notice of the November 13, 1997, hearing.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning,
[this court] review[s] the IJ’s decision as well.” Id. Here, we will review both
decisions because the BIA adopted the IJ’s decision.
We review the denial of a motion to reopen for an abuse of discretion.
Lonyem v. U.S. Attorney Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). Judicial
review is limited to determining “whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985)
(quotation and citation omitted). “The BIA abuses its discretion when its decision
provides no rational explanation, inexplicably departs from established policies, is
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devoid of any reasoning, or contains only summary or conclusory statements.”
Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003) (persuasive authority)
(quotations and citations omitted).
Any alien who, after written notice has been provided to the alien or the
alien’s counsel of record, does not attend a proceeding shall be ordered removed
in absentia if the government establishes by “clear, unequivocal, and convincing
evidence” it gave written notice and the alien is removable under the standards set
forth in the INA. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). An in absentia
removal order may be rescinded if (1) within 180 days after entry of the order, the
alien moves to reopen and demonstrates that his failure to appear was because of
exceptional circumstances, or (2) the alien moves to reopen at any time and
demonstrates that he did not receive proper notice. INA § 240(b)(5)(C)(i) and (ii),
8 U.S.C. § 1229a(b)(5)(C)(i) and (ii). Exceptional circumstances include
circumstances beyond the control of the alien, such as “serious illness of the
alien,” but do not include “less compelling circumstances.” 8 U.S.C. §
1229a(e)(1).
To the extent that Samedi argues that his failure to appear at the November
13, 1997, hearing was due to exceptional circumstances, and thus relies on INA §
240(b)(5)(C)(i), the record shows that Samedi’s second motion to reopen was
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time-barred because he filed it more than 180 days after the IJ’s decision.
Additionally, because Samedi did receive proper notice of the November 13, 1997,
hearing, the BIA did not abuse its discretion when it affirmed the IJ’s denial of
Samedi’s motion to reopen pursuant to INA § 240(b)(5)(C)(ii).
After a careful review of the entire record, as well as the parties’ respective
briefs, we find no discernable error and hold that the BIA’s decision affirming the
IJ’s ruling was not an abuse of discretion.
PETITION DENIED.
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