[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-14251

Non-Argument Calendar

________________________

Agency No. A089-973-242

ISAIT MENDEZ-CANO, 

a.k.a. Isait Mendez Cano, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(April 8, 2013)

Before WILSON, MARTIN and FAY, Circuit Judges.

PER CURIAM: 

Case: 12-14251 Date Filed: 04/08/2013 Page: 1 of 5 
2

Isait Mendez-Cano (Mendez) seeks review of the Board of Immigration 

Appeals’ (BIA) denial of his appeal of the Immigration Judge’s (IJ) motion to 

reopen his in absentia order of removal. On petition for review, Mendez argues 

that the BIA abused its discretion when it found that Mendez failed to demonstrate 

that “exceptional circumstances” prevented him from attending his master calendar 

hearing.

The Supreme Court has held that federal courts generally have jurisdiction to 

review orders denying motions to reopen. See Kucana v. Holder, 558 U.S. 233, 

___, 130 S. Ct. 827, 839–40 (2010). We review the BIA’s denial of a motion to 

reopen for an abuse of discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th 

Cir. 2006) (per curiam). The BIA’s discretion is quite broad, and 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.” Id.

(internal quotation marks omitted). The administrative factual findings are 

considered “conclusive unless a reasonable factfinder would be compelled to 

conclude to the contrary.” Lonyem v. U.S Att’y Gen., 352 F.3d 1338, 1340 (11th 

Cir. 2003) (per curiam). In the context of a motion to reopen, whether an alien 

received sufficient notice of his removal hearing is a finding of fact. See 

Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1317 (11th Cir. 2006) (per 

curiam) (granting petition for review and remanding for the BIA to consider in the 

Case: 12-14251 Date Filed: 04/08/2013 Page: 2 of 5 
3

first instance whether petitioner received a sufficient notice of hearing before being 

removed in absentia).

Any alien who does not attend a proceeding after written notice has been 

provided is subject to removal in absentia if the government establishes by “clear, 

unequivocal, and convincing evidence” that it gave written notice and that the alien 

was removable. 8 U.S.C. § 1229a(b)(5)(A). An in absentia order can be issued if 

notice had been provided to the alien or to the alien’s counsel of record. Id.; see 

also 8 U.S.C. § 1229(a)(2)(A). Receipt of notice by counsel is sufficient to deny a 

motion to reopen based on a lack of notice. See Anin v. Reno, 188 F.3d 1273, 1277 

(11th Cir. 1999) (per curiam).

An alien may seek rescission of an in absentia removal order by filing a 

motion to reopen at any time if the alien demonstrates that (i) exceptional 

circumstances justified his failure to appear, or (ii) he did not receive notice of the 

hearing and his failure to appear was through no fault of his own. 8 U.S.C. § 

1229a(b)(5)(C)(i), (ii). “Exceptional circumstances” are defined by statute as 

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.

8 U.S.C. § 1229a(e)(1).

Case: 12-14251 Date Filed: 04/08/2013 Page: 3 of 5 
4

Throughout the course of proceedings, Mendez never contested the fact that 

his counsel received notice of the March 31 hearing. The fact that counsel was 

present at the March 31 hearing suggests that counsel did receive notice of it. 

Nothing in the record compels a conclusion that Mendez’s counsel did not receive 

notice of the hearing. See Lonyem, 352 F.3d at 1340. Therefore, as a result, the

BIA did not abuse its discretion in denying Mendez’s motion to reopen based on 

an alleged lack of notice. See Anin, 188 F.3d at 1277.

The BIA also did not abuse its discretion in finding that Mendez failed to 

demonstrate that “exceptional circumstances” prevented him from appearing at the 

March 31 hearing. Mendez presented evidence that his wife was in the hospital on 

March 24 and 25, and affidavit testimony that he and his wife were unable to 

access their mail from March 24 until sometime after March 31. However, he did 

not present any evidence explaining why the March 24 accident prevented him 

from learning about his March 31 hearing, of which he could have had notice 

through his counsel in January or February. Mendez also failed to present any 

evidence that suggested that, had he known about the hearing, exceptional 

circumstances would have prevented his attendance. Because Mendez failed to 

demonstrate that he was entitled to have his in absentia order reopened under 

either statutory justification, the BIA did not abuse its discretion in affirming the 

Case: 12-14251 Date Filed: 04/08/2013 Page: 4 of 5 
5

IJ’s denial of Mendez’s motion to reopen, and we deny Mendez’s petition for 

review. See Ali, 443 F.3d at 808.

PETITION DENIED.

Case: 12-14251 Date Filed: 04/08/2013 Page: 5 of 5