* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60253

Summary Calendar

JANAISA DAIANA BARBOSA

Petitioner

v.

MARK FILIP, ACTING U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A98 402 137

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Janaisa Daiana Barbosa, a native and citizen of Brazil, petitions this court

for review of the Board of Immigration Appeal’s (BIA) order affirming the

immigration judge’s (IJ) order denying her motion to reopen removal

proceedings. When, as here, the BIA adopts the IJ’s decision, we may review the

IJ’s decision. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). A “highly

deferential abuse of discretion standard” applies in reviewing the BIA’s denial

of a motion to reopen. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000). We

will affirm the BIA’s decision as long as it is not capricious, without foundation

United States Court of Appeals

Fifth Circuit

F I L E D

January 30, 2009

Charles R. Fulbruge III

Clerk
No. 08-60253

2

in the evidence, or otherwise so irrational that it is arbitrary, rather than the

result of any perceptible rational approach. See Singh v. Gonzalez, 436 F.3d 484,

487 (5th Cir. 2006). 

Barbosa, who was ordered removed in absentia after she failed to appear

for her removal hearing, maintains that her motion to reopen should have been

granted because the notice to appear (NTA), with which she was personally

served, was not translated in her native language of Portugese and that, as a

result, her due process rights were violated. Barbosa specifically complains that

she was not properly advised of her duty to provide the immigration court with

an address. Barbosa’s arguments regarding the NTA are without merit. 

Due process requires that notice be “‘reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of the [removal]

action and afford them an opportunity to present their objections.’” Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The requirements

regarding the notice at issue in the instant case, the NTA, are detailed at

8 U.S.C. § 1229(a)(1). Section 1229(a)(1) does not explicitly require that the NTA

be in any language other that English.

The NTA in the instant case comported with the statutory and

constitutional requirements. The record reflects that Barbosa received oral

notice in Spanish of the time and place of the hearing as well as the

consequences of her failure to appear for the hearing. The record further

indicates that Barbosa acknowledged her receipt and understanding ofthe NTA

by signature. Furthermore, Form I-213, Record of Deportable/Inadmissible

Alien, indicates that Barbosa spoke and understood the Spanish language.

Based on these facts, the BIA found that Barbosa understood the warnings she

received. The BIA’s factual finding is supported by substantial evidence. See

Girma v. INS, 283 F.3d 664, 666 (5th Cir. 2002). As Barbosa was informed of

her duty to provide the immigration court with her address and failed to do so,

she was not entitled to notice of the removal hearing. 8 U.S.C. § 1229a(b)(5)(B).
No. 08-60253

3

Barbosa further challenges the NTA was defective because it did not

specify the date and time of the hearing. Barbosa did not present this issue to

the BIA. She therefore has failed to exhaust administrative remedies and we

lack jurisdiction to consider her argument. See Wang v. Ashcroft, 260 F.3d 448,

452 (5th Cir. 2001).

Barbosa additionally argues that the BIA and IJ abused their discretion

by not reopening her removal proceedings on the ground that she had shown

exceptional circumstances for not attending the hearing. While she

acknowledges that her motion to reopen was not filed within the 180-day time

limit for filing a motion to reopen on this ground, she maintains that this time

limit should have been equitably tolled. Barbosa alternatively argues that the

time limit should be waived since she never receive a notice of hearing. 

Barbosa has not shown the exceptional circumstances necessary to be

entitled to reopen her removal proceedings. Moreover, Barbosa has not

demonstrated rare and exceptional circumstances that might entitle her to

equitable tolling. See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) ;

Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Nor has Barbosa

established thatthe time-limit should be waived based on her argumentthat she

never received notice of the hearing; Barbosa did not receive notice because she

did not provide the immigration court with her address as required.

Accordingly, Barbosa has not shown that the BIA abused its discretion by

denying her motion to reopen. See Lara, 216 F.3d at 496. 

Accordingly, Barbosa’s petition for review is DENIED.