FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 09, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13390

Non-Argument Calendar

________________________

Agency No. A77-872-720

ANA FRANCISCO-DOMINGO,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(January 9, 2009)

Before BIRCH, PRYOR and FAY, Circuit Judges.

PER CURIAM:
Ana Francisco Domingo, a native and citizen of Guatemala, petitions this

Court for review of the Board of Immigration Appeals’ order affirming the

Immigration Judge’s (“IJ”) denial of her motion to reopen removal proceedings

following the issuance of a removal order entered in absentia. The BIA agreed

with the IJ that Francisco Domingo did not show that “exceptional circumstances”

beyond her control prevented her from attending the removal hearing. For the

reasons set out below, we deny the petition.

I.

In 2005, Francisco Domingo filed an “Application for Suspension of

Deportation or Special Rule Cancellation of Removal,” pursuant to the Nicaraguan

and Central American Relief Act. The application provided, inter alia, that she was

a native and citizen of Guatemala who had been living in the United States since

her arrival in 1992. She lived in Florida with her husband, who was also a native

and citizen of Guatemala, and her children, who were U.S. citizens. Her husband

had filed an asylum application, which was pending.

In 2006, the Department of Homeland Security (“DHS”) served Francisco

Domingo with a Notice to Appear (“NTA”). The NTA alleged that she was

removable for being an alien present in the United States without being admitted or

paroled, pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).

After granting Francisco Domingo a continuance, the IJ rescheduled the

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removal hearing for September 26, 2007. The IJ personally served Francisco

Domingo with notice of this hearing, which also provided that “[f]ailure to appear

for this hearing other than because of exceptional circumstances beyond your

control will result in your being found ineligible for certain forms of relief . . . .”

On September 26, 2007, the IJ ordered Francisco Domingo removed from

the United States. He explained that Francisco Domingo did not attend the

removal hearing, even though he had provided her with written notification and

had warned that failure to appear would result in removal. Thus, the IJ conducted

the hearing in absentia, pursuant to INA § 240(b)(5)(A), 8 U.S.C.

§ 1229a(b)(5)(A). The IJ stated that Francisco Domingo had conceded

removability at a prior hearing and, therefore, he found “removability established

as charged” in the NTA. Finally, the IJ found that, as a result of Francisco

Domingo’s failure to appear, any previous applications for relief from removal

were deemed “abandoned and denied for lack of prosecution.”

On October 12, 2007, Francisco Domingo filed a pro se motion to reopen the

removal proceedings. She explained that she did not attend the removal hearing

because the windshield wipers broke on the way there, and she could not continue

driving because it was raining. She attached an affidavit from her husband, who

confirmed this account. He added that the windshield wipers broke approximately

one hour before Francisco Domingo’s hearing was scheduled to begin and that,

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like Francisco Domingo, he was unable to attend his own immigration hearing that

morning. He explained that he “could not call a taxi because [he] had little money

to pay.” Instead, he stated that he took the car to a mechanic. He attached the

receipt from the repair shop, which indicated that he paid $175 in cash to repair a

broken windshield wiper.

The IJ issued a decision denying Francisco Domingo’s motion to reopen.

The IJ found that Francisco Domingo had not established “exceptional

circumstances” excusing her failure to attend the hearing, as required under INA

§ 240(b)(5)(C). He explained that “[t]he possibility of rain and minor car troubles

are risks inherent to driving that should be reasonably anticipated,” and there was

no indication that Francisco Domingo attempted to contact the court “at any time

prior to the present motion.” Thus, the IJ found the case to be “on par” with

Magdaleno de Morales v. I.N.S., 116 F.3d 145 (5th Cir. 1997) and Sharma v.

I.N.S., 89 F.3d 545 (9th Cir. 1996), holding that mechanical failure and

traffic/parking difficulties, respectively, did not constitute “exceptional

circumstances.” Finally, the IJ expressed concern with Francisco Domingo’s

husband’s assertion that they did not have money to take a taxi, as the receipt from

the repair shop indicated that they paid $175 in cash.

Francisco Domingo appealed the IJ’s decision to the BIA. In her notice of

appeal, she stated that she did not know why her motion was denied because her

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husband was also ordered removed as a result of his failure to attend his hearing,

but the judge in his case reopened the proceedings. She filed a pro se brief in the

BIA repeating the same point about her husband’s case. For support, she attached

a notification sent by the IJ in her husband’s case, reflecting that the IJ had

scheduled a hearing in the case for July 1, 2008.

On May 16, 2008, the BIA affirmed the IJ’s decision and dismissed the

appeal. The BIA first “agree[d] with the Immigration Judge that the respondent

failed to establish that these proceedings should be reopened based on exceptional

circumstances.” The BIA then rejected Francisco Domingo’s argument that her

husband’s case had been reopened under the same circumstances. It explained

that, while Francisco Domingo submitted evidence that her husband had a hearing

scheduled in July 2008, she did not submit any proof that her husband was ordered

removed in absentia or that his case was reopened based on the same set of facts.

On June 16, 2008, Francisco Domingo petitioned this Court for review of the

BIA’s order.

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II.

“We review only the Board’s decision, except to the extent that it expressly

adopts the IJ’s opinion.” Al Najjar v. Aschroft, 257 F.3d 1262, 1284 (11th Cir.

Francisco Domingo’s petition for review was timely because, although she filed it 31 days

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after the BIA’s order, the 30th day fell on a Sunday, which gave her until the next business day to

file it. See Fed.R.App.P. 26(a)(3).

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2001). “Insofar as the Board adopts the IJ’s reasoning, we will review the IJ’s

decision as well.” Id. In this case, although the BIA did not expressly adopt the

IJ’s decision, it did “agree” with the IJ that Francisco Domingo did not show

exceptional circumstances sufficient to warrant the reopening of her removal

proceedings. Because the BIA appears to have incorporated the IJ’s reasoning on

this point, we review the decisions of both the BIA and the IJ.

“We review the BIA’s denial of a motion to reopen for abuse of discretion.

Our 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.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (quotation

and citation omitted). “Generally, motions to reopen are disfavored, especially in a

removal proceeding, where, as a general matter, every delay works to the

advantage of the deportable alien who wishes merely to remain in the United

States.” Id. (quotations and alteration omitted).

An alien who fails to attend a removal proceeding “shall be ordered removed

in absentia if the Service establishes by clear, unequivocal, and convincing

evidence that the written notice was so provided and that the alien is

removable . . . .” INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). Such an order

may be rescinded “upon a motion to reopen filed within 180 days after the date of

the order of removal if the alien demonstrates that the failure to appear was

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because of exceptional circumstances (as defined in subsection (e)(1) of this

section) . . . .” INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i). Subsection

(e)(1) provides:

The term “exceptional circumstances” refers to exceptional

circumstances (such as battery or extreme cruelty to the alien or any

child or parent of the alien, serious illness of the alien, or serious

illness or death of the spouse, child, or parent of the alien, but not

including less compelling circumstances) beyond the control of the

alien.

INA § 240(e)(1), 8 U.S.C. § 1229a(e)(1).

III.

The issue on appeal is whether the BIA abused its discretion by finding that

Francisco Domingo did not show exceptional circumstances under § 1229a(e)(1).

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Francisco Domingo contends, as she did in her motion to reopen, that she could not

attend the removal hearing because the windshield wipers on her car broke during

a rainstorm on the drive to the hearing.

Francisco Domingo does not challenge whethershe received notice of the removal hearing 2

or whether she was removable and, therefore, has abandoned these issues on appeal. Sepulveda v.

U.S. Atty. Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer

argument on an issue, that issue is abandoned.”). Nor does Francisco Domingo raise the primary

argument that she raised in the BIA, namely that the IJ should have reopened her case because her

husband’s case was reopened. Accordingly, she has also abandoned this argument on appeal. Id.

Francisco Domingo devotes much of her brief to arguing the merits of her prior application

for cancellation of removal, as she emphasizes that her removal would result in extreme hardship

for her and her family. However, this issue is outside the scope of this appeal, which is limited to

the denial of her motion to reopen. 

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The plain language of § 1229a(e)(1) undermines her argument. This is so

because the statute provides that “the term ‘exceptional circumstances’ refers

to . . . battery or extreme cruelty to the alien or any child or parent of the alien,

serious illness of the alien, or serious illness or death of the spouse, child, or parent

of the alien, but not including less compelling circumstances . . . .” INA

§ 240(e)(1), 8 U.S.C. § 1229a(e)(1) (emphasis added). Driving with broken

windshield wipers in a rainstorm appears to be far “less compelling” than

circumstances involving battery, cruelty, illness, or death. Thus, Francisco

Domingo’s argument fails under the plain language of the statute.

In addition, the IJ correctly relied on Magdaleno de Morales and Sharma to

support his conclusion in this regard. In Magdaleno de Morales, the Fifth Circuit

held that “the mechanical failure of the petitioner’s car on the way to the hearing

did not constitute exceptional circumstances within the meaning of the Act.” 116

F.3d at 148. And in Sharma, the Ninth Circuit held that “Petitioners’ traffic

difficulties do not qualify as exceptional circumstances beyond Petitioners’

control.” 89 F.3d at 547.

Francisco Domingo does not point to any opposing authority, but rather

attempts to distinguish Magdaleno de Morales and Sharma on the ground that

those cases did not involve the life threatening situation of driving without

windshield wipers in a rainstorm. However, this distinction is not persuasive

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because all three cases involved some sort of car trouble preventing the petitioner

from arriving at the hearing on time; the specific type of car trouble is irrelevant.

Further undermining Francisco Domingo’s contention in this regard is the fact that

her husband paid $175 in cash to repair the car, indicating that she could have used

some of that money for a taxi ride to the hearing.

Moreover, we have emphasized the significance of contacting the IJ in order

to explain one’s inability to attend a removal hearing:

Lonyem did not indicate that he made any effort to contact the

Immigration Court on the day of his removal hearing to alert the IJ of

his absence and to explain the reasons for it. Giving such notice of

one’s unavailability is a minimal and logical step that, if not taken, is a

factor which tends to undermine a claim of exceptional circumstances.

Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003). Similarly, the

Fifth Circuit in Magdaleno de Morales emphasized the fact that, although the

petitioner’s car broke down approximately one hour before the hearing, the

petitioners did not call the IJ to explain what had happened. Id. at 149. Indeed, the

petitioners “did not attempt any further correspondence with the immigration court

until over two weeks after their scheduled hearing, when they received notice of

the in absentia order of deportation.” Id.

In this case, as in Magdaleno de Morales, the affidavit submitted by

Francisco Domingo’s husband provided that the windshield wipers broke

approximately one hour before her hearing. Furthermore, the IJ was correct that

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nothing in the record indicates that Francisco Domingo attempted to contact the

immigration court at any point before filing the motion to reopen. In this respect,

the Fifth Circuit has stated: “In a matter of such overriding importance in an

individual’s life, we would expect such efforts to be made.” Magdaleno de

Morales, 116 F.3d at 149.

For the above reasons, we conclude that the BIA did not abuse its discretion

in finding that Francisco Domingo did not show “exceptional circumstances”

under § 1229a(e)(1) so as to warrant the reopening of her removal proceedings.

Accordingly, we deny the petition for review.

PETITION DENIED.

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