### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT OCTOBER 10, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 03-11002 Non-Argument Calendar

________________________ Agency Docke

t No. A77-251-509 TSAYO CYRILLE LONY EM, Petitioner,

versus U.S. ATTORNEY GENERAL, IMMIGRATION AND NATURALIZATION SERVICE, Respondents.

________________________ Petition for Review of an Order of the Board of Im

migration Appe

als

_________________________ (October 10, 2003) Before DUBIN

A, MARCUS an

d WILSON,

Circuit Judges. PER CURIAM: This petition arise s from imm igration proceedings

in which the Board of Immigrati on Appe als (“BIA” ) affirmed withou t opin ion th e denia l of Tsayo1 The notice to appear required Lony em to appear for a removal hearing in Atlanta on February 24, 2000, based upon Lony em’s address in his application for asylum.

2 Cyrille Lony

em’s mo tion to reopen his fina

l in absentia removal proce eding. Upon review, we deny Lonyem’s petition. BACKGROUND In January 1999, Lonyem, a native and citizen of Cam eroon, was admitted to the United States a s a tourist with permissi on to remain for three months. Lonyem ove

rstayed his visa

and later that y

ear applied for as

ylum and wi

thholding of removal under the Immigration and Nationality A ct (“INA”), claiming that based on his affiliation with Global Village Cameroon, an environmental protection group that o

pposed the Biya go

vernment, he was unlawfully arrested, tortured, and subj ect to forced labor . An asylum

officer refer

red Lonyem

to the immigrati on court for a full he

aring on his claim

s. In connection wi

th that referral , the Immigr

ation and Naturaliz

ation Service (“

INS”) issued Lon

yem a notice to appear, 1 charging him with removabili ty under INA § 237 (a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the United States l onger than permitted. On February 10, 2000, two weeks prior to the removal hearing, Lony em filed a motion f

or a change of venue

from Atlanta

to Baltimore be

cause both he and his attorney l

ived in Baltimor

e. Lonyem

also conceded his re

movability,

but2 The affidavit also asserted that Lonyem had tra veled to Atlanta with the intention of attending the hearing but could not afford to arrange for his attorney to travel to the hearing. Lonyem stated that he attempted to contact his attorney on the day of the hearing but was unsuccessful. 3 sought asylum . The imm igration judge (“

IJ”) denied this m

otion. Lonyem

did not appear for the removal hearing and consequently, on February 24, 2000, the IJ ordered Lonye

m removed

to Cameroon in absentia because Lonyem had conceded his removability. On March 21, 2000,

Lonyem f

iled an emerge

ncy motion to reopen his removal proceedings. He submitted a sworn affidavit attesting that he had cont racte d malar ia the day before th e hear ing an d sou ght med ical a ttent ion fr om a family friend and licensed nurse. 2 He also attached to his motion the sworn affidavit of his nu rse attesting, inter alia , that she had trea ted Lonyem

for malaria by giving him prescriptio n medication and Tylenol. The IJ denied Lony

em’s mo tion to reopen, disco

unting Lonyem ’s assertions that he had been sick and unable to attend the removal hearing. Lonyem then appealed to the BIA, arguing that the IJ’s adverse credibility findings were speculative and unsuppo

rted by the record and that his sudden bo ut of malaria constituted exception

al circumstan

ces justifying

his failure to appea

r. On July 1,3 The BIA later vacated and reissued the decision as of January 30, 2003, because of improper mailing of the original decision. 4 2002, the BIA affirmed the IJ’s de cision without an opinion pursuan t to 8 C.F.R. § 3.1(a)(7) (2002). 3 Lonyem ch

allenges the determ

ination of the IJ that

Lonyem f

ailed to show exceptional circum

stances justify

ing reopening of his in absentia removal order. Lonyem argues that the IJ erred in applying a new evidentiary standard. Lonyem further asserts that he was deprived of due process when (1) the IJ applied a new evidentiary sta

ndard without affor

ding him proper no

tice; and (2) the BI

A did not review the facts of his c ase or explain why it deni ed his appeal. DISCUSSION Because Lonye

m’s rem oval proceedings com

menced in 2000, the permanent prov

isions of the Imm

igration and Nationa

lity Act, as a

mended by the Illegal Imm

igration Reform

and Immigr

ant Responsibility

Act of 1996, Pub.L . No. 104-208, 110 Stat. 3 009 (1996), govern his petition for rev iew. See 8 U.S.C. § 1252; Gonzalez-Oropeza v . United States At

torney Gen. , 321 F.3d 1331, 1332 (11th Cir. 2003). W

hen the BIA issued a

n affirmance

without an opinion, the immigration judge’s decision became the final order subject to review. See5

Mendoza v. United States Attorney Ge n. , 327 F.3d 1283, 1284 n. 1 (11th Cir. 2003) (reviewing 8 C.F.R. § 3.1(a)(7 )(2002)).

I We first conside

r Lonyem’ s challenge to the IJ ’s determin ation that he failed to show exce

ptional circums

tances justify

ing the reopening of his in absentia removal order. We review the denial of a motion to reopen for an abus e of discretion. INS v. Abudu , 485 U.S. 94, 105 (1988) . Motions to reopen a re disfavored. Id. at 107- 08. The imm

igration judge’s

administrative

findings of fact ar

e conclusive unless a reasonable factfind er would be compelled to co nclude to the cont rary. Fahim v. United States Attorney Gen. , 278 F.3d 1216, 1218 ( 11th Cir. 2002). W hile this Court has not outlined a

specific standard for reviewing cr edibility deter

minations, other circuits have adopted a substan tial deference standa rd. See, e.g. , Gao v. Ashcroft , 299 F.3d 266, 272 (3 d Cir. 2002); Akinmade v. INS , 196 F.3d 951, 954 (9th Cir. 1999).4 Effective February 28, 2003, certain reg ulations previously at 8 C.F.R. Part 3, including the ones at issues in this case, were transferred to 8 C.F.R. Part 1003. See68 Fed.Reg. 9824, 9826 (2003). 6 The INA provide s that a petition for r eview challenging a

n order entered in absentia is “confined to ( i) the validity of

the notice provided to

the alien, (ii) th

e reasons for the ali

en’s not attending t

he proceeding, and (

iii) whether or not

the alien is remova

ble.” INA § 240(

b)(5)(D), 8 U. S.C. § 1229a(b)(5)(D). Only the second ground is at issue in this case. An in absentia removal order may be rescinded if the al

ien demonstrates that the failure t o appear was beca

use of exceptional circum

stances beyond the

control of the alien

, such as serious ill

ness of the alien or seri

ous illness or death of

the alien’s spouse , child, or paren t, but not including l ess compelling circumstance s. See INA § 240 (b)(5)(C), (e)(1), 8 U.S.C. § 1229a(b)(5)(C), (e)(1); 8 C.F.R. § 3. 23(b)(4)(ii) (2002). 4 The phrase “serious illness” is not d efined in the statute

or its implem

enting regulations. The BIA has suggested se veral ways in w

hich such an illness m

ay be demonstrated.“A medical professional .. . commen t[], in detail,

on the severity o f the illness of the alleged. In the alternative, [such a] claim may [be] substantiated through detailed aff

idavits from the

respondent, room

mates, frie

nds, and coworkers, attesting to the extent of his disabilities and the remedies used.” In re JP- , 22 I & N Dec. 33 (1998).5 The argument is improperly before this Court because it was not exhausted before the agency. INA § 242(d)( 1), 8 U.S.C. § 1252(d )(1); see also Fernandez-Bernal v. Attorney General , 257 F.3d 1314, 1317 n.13 (11th Cir. 2001).

6 Even if the affid

avits of Lony

em and the nurse,

taken alone, wer

e deemed credib

le, it is questionable whe

ther they w

ere sufficientl

y detailed i

n the treatment or

duration of the illn

ess to support a conclusion that Lonyem demonstrated extraordinary circumstances warranting reopening of removal proceedings. See, e.g. , In re J-P- , 22 I & N Dec. 33 (1998). 7 The only details Lonyem pr ovided about his illness w ere contained in the affidavit of his nur

se. The imm

igration judge conc

luded that this affida

vit, standing alone, wa

s not enough to corrobor

ate Lonyem ’s claim tha

t he was too sick to att end his remov al hearing . Although Lonyem suggest s that the I J’s conclusion advances a new and heightened evidentiary standard, we disagree. 5 The IJ found it questi

onable that a license

d nurse would dispense

prescription medication for

a potentially le

thal illness without f

urther corroborat

ion. The IJ did not require

Lonyem to submit evidence of prescriptions; the IJ mere ly found that Lonyem’s affidavits, as submitted, w ere not credible. 6 Lonyem did not indicate that he m ade any effor

t to contact the Im

migration Court on the day of

his removal hea

ring 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 f

actor which tends to

undermine a cl

aim of exceptional circumstances. This failure is particularly noteworthy given the fact that Lonyem tried, albeit unsu ccessfully, to contact hi s attorney in Baltimore.8

For these reasons,

we conclude that the

IJ did not abuse its disc

retion in determining tha

t Lonyem di

d not demonstrate

“exceptional c

ircumstances” sufficient to justi

fy a reopening of

his removal proceedings. II Having concluded tha

t the immigr

ation judge did not abu

se its discretion in determining that Lonyem did not demonstrate “exceptional cir cumstances,” we turn next to Lonye

m’s due process claims. L onyem argues that his due process rights were violated because the IJ applied a new evidentiary standard and the BIA did not review the fact s of his case or explai n why it denied his appea l. We review cons

titutional challenge s de novo

. Alabama Power Co. v. F.C.C. , 311 F.3d 1357, 1367 ( 11th 2002)

. To establish due process violations in removal proce

edings, aliens m

ust show that they

were deprived of

liberty without due process of law, and t hat the asserted errors caused them substanti al prejudice. Gonzalez-Oropeza , 321 F.3d at 1333. As noted above, the

IJ did not apply a n

ew evidentiary

standard to Lonyem’s case. See supra note 6. We tur n to Lonyem’s cla im that the BI A’s order summarily affirming the IJ violate d his due process ri ghts. Pursuant to 8 C.F.R. § 3.1( a)(7), a sing le membe r of th e BIA may a ffirm, without opinion, the de

cision of the IJ if tha

t Board mem

ber determine s that the9

result was correct and t hat any errors were harmless and immaterial, and "that (A) the issue on appeal is squarely control led by existing pre

cedent; [and] (B ) the factual and legal questions raised on appeal are so insubstantial that three-member review is not warranted." Garcia v. Attorne y Gen. , 329 F.3d 1217, 1223 (11 Cir. 2003) (quoting 8 C.F.R. § 3.1(a)(7)(ii)). The decision of the IJ becomes the final agency decision. Id. Thus, under the re gulations, no entitlem

ent to a full opinion by the BIA exists. Gonzalez-Oropeza , 321 F.3d at 1333. As the Supreme Court has made clear, “adm

inistrative agencies should be free to fashion their own rules of procedure and to p

ursue methods of

inquiry capable

of permitting th

em to discharge their multitudinous duties.” Vermont Nuclear P ower Corp. v. Natu

ral Resources Defense Council, Inc. , 435 U.S. 519, 543 (1978) (citations omitted). The fact that a si

ngle BIA mem

ber issued an affir

mance without opinion (AWO) does not demonstrate tha t he did not review th e facts of Lonyem’s case. Lonyem pr

esents no evidence tha

t the BIA mem

ber who reviewe

d the case deviated from the regulations’ r equirements w

hen determining

that the case warranted a summary af

firmance. Finally, Lonye m has failed to show substantial prejudice from

BIA’s issuance

of an AWO. W

e accordingly f

ind Lonyem’ s due process claims without merit. CONCLUSION10

For the foregoing re

asons, we find that

the IJ did not abuse his discretion in denying Lony

em’s mo tion to reopen his in absentia removal proce edings, nor do we find that the BIA viol ated Lonyem’s due process rights

. PETITION DENIED.