IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60910

Summary Calendar

ALMA DEYANIRA GUILLEN,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A096 785 211

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

Alma Deyanira Guillen, a native and citizen of Mexico, petitions this court

for review of the Board of Immigration Appeals’ (BIA) decision dismissing her

appeal of the Immigration Judge’s (IJ) denial of the motion to reopen her in

absentia removal proceedings. Guillen does not dispute that she was removable

as charged, and she has abandoned any challenge to the BIA’s determination

that she received the required statutory notice. See Soadjede v. Ashcroft, 324

F.3d 830, 833 (5th Cir. 2003).

United States Court of Appeals

Fifth Circuit

F I L E D

October 1, 2010

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Instead, she contends that her attorney mistakenly informed her that the

hearing was scheduled for 1:30 p.m., rather than 9:00 a.m. Because she

appeared at the time her attorney told her to appear, Guillen argues that her

late appearance should not have been considered a failure to appear.

Alternatively, Guillen argues that she demonstrated exceptional circumstances

for her failure to appear.

The BIA determined that Guillen had not provided any details of the

circumstances surrounding her late arrival, including whether she spoke with

immigration court personnel, whether the IJ was still on the bench, or what, if

any, efforts were made to contact the IJ. Thus, the BIA concluded that Guillen

had failed to demonstrate that her late appearance should be excused.

For the first time in her petition for review, Guillen contends that upon

her arrival at the courthouse, she informed immigration court personnel that she

had understood the IJ to say that the hearing was scheduled for 1:30 p.m, rather

than 9:00 a.m. An immigration court employee advised Guillen that the IJ was

still available and asked that she wait a moment. When the immigration court

employee returned, she advised Guillen to file a motion to reopen. Because

review is limited to the administrative record, this court may not consider facts

raised for the first time on appeal. Miranda-Lores v. INS, 17 F.3d 84, 85 (5th

Cir. 1994). Further, although Guillen arrived at the courthouse during business

hours and had diligently appeared at all prior hearings, she arrived four and

one-half hours late and waited 77 days to file a motion to reopen. Therefore, the

BIA did not abuse its discretion in treating Guillen’s late arrival as a failure to

appear. Cf. Alarcon-Chavez v. Gonzales, 403 F.3d 343, 345-46 (5th Cir. 2005)

(concluding that it was legal error, and therefore an abuse of discretion, to hold

that the petitioner’s 20-minute tardiness constituted a failure to appear where

he had been on time to all prior hearings, made every effort to get the IJ to

resume the hearing, and upon learning that the IJ steadfastly refused to conduct

the hearing, filed a motion to reopen five days later).

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Likewise, the BIA did not abuse its discretion in concluding that Guillen

failed to demonstrate exceptional circumstances for her failure to appear.

Although Guillen contends that her attorney mistakenly informed her that the

hearing was scheduled for 1:30 p.m, counsel did not execute an affidavit in

support of Guillen’s motion to reopen and counsel’s statements in the motion and

subsequent briefs are not evidence. See INS v. Phinpathya, 464 U.S. 183, 188

n.6 (1984). Further, the record is silent as to whether or when counsel arrived

at the courthouse and what steps, if any, she took upon her arrival. While this

court has held that erroneous advice from counsel can constitute exceptional

circumstances warranting rescission of an in absentia removal order, GalvezVergara v. Gonzales, 484 F.3d 798, 801-02 (5th Cir. 2007), Guillen neither

alleged ineffective assistance of counsel nor attempted to comply with the

requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

Therefore, she has not shown that the BIA’s decision was capricious, racially

invidious, without foundation in the evidence, or otherwise so irrational that it

was arbitrary. See Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006).

Finally, Guillen contends that the denial of her motion to reopen was

unconscionable and a violation of her due process rights because she is eligible

for cancellation of removal. As previously stated, Guillen has abandoned any

challenge to the BIA’s determination that she received the required statutory

notice. Further, the denial of a motion to reopen cannot violate an alien’s due

process rights because the relief sought in such a motion is discretionary in

nature. Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th Cir. 2009); Assaad

v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). Therefore, Guillen’s due process

claim is without merit.

Accordingly, Guillen’s petition for review is DENIED.

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