IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60616

Summary Calendar

JORGE ALBERTO PERDOMO-ALCANTARA,

Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A206 716 096

Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.

PER CURIAM:*

Jorge Alberto Perdomo-Alcantara, a native and citizen of Honduras, was 

ordered removed in absentia in 2014 after he failed to appear at his 2014 

removal hearing in Dallas, Texas, for which he concedes he had notice. 

Approximately a month after the removal order, he moved to reopen the 

proceedings and rescind the order, asserting his failure to appear was due to 

exceptional circumstances. The immigration judge (IJ) denied the motion in 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 21, 2016

Lyle W. Cayce

Clerk

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No. 15-60616

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2015, and the Board of Immigration Appeals (BIA) dismissed Perdomo’s

appeal. 

Perdomo petitions for review of the BIA’s decision, contending: (1) the 

IJ erred in finding he had not demonstrated exceptional circumstances 

excusing his failure to appear at the removal hearing; and (2) the IJ’s denial of 

the motion to reopen violated his due-process right to a full and fair removal 

hearing. Because Perdomo did not exhaust the second claim by presenting it 

to the BIA, we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Roy v. 

Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004); Wang v. Ashcroft, 260 F.3d 448, 

452–43 (5th Cir. 2001).

With regard to Perdomo’s exhausted claim concerning exceptional 

circumstances, we review the decisions of both the BIA and the IJ, applying “a 

highly deferential abuse-of-discretion standard”. Barrios-Cantarero v. Holder, 

772 F.3d 1019, 1021 (5th Cir. 2014); Wang v. Holder, 569 F.3d 531, 536 (5th 

Cir. 2009). An IJ abuses his discretion when he “issues a decision that is 

capricious, irrational, utterly without foundation in the evidence, based on 

erroneous interpretations of statutes or regulations, or based on unexplained 

departures from regulations or established policies”. Barrios-Cantarero, 772 

F.3d at 1021. Factual findings are reviewed for substantial evidence. Wang, 

569 F.3d at 536–37.

A motion to reopen an in absentia removal hearing will be granted if the 

alien “demonstrates that the failure to appear was because of exceptional 

circumstances”. 8 U.S.C. § 1229a(b)(5)(C)(i). Exceptional circumstances are

those “beyond the control of the alien”, including “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”. 8 U.S.C. § 1229a(e)(1). “The plain 

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language of the statute indicates that this is a difficult burden to meet.” 

Magdaleno de Morales v. I.N.S., 116 F.3d 145, 148 (5th Cir. 1997).

Perdomo contends he demonstrated exceptional circumstances based on:

the short time between his release from Department of Homeland Security 

custody and the hearing date (during which he had to obtain counsel and 

prepare an asylum application); his moving from Texas to Virginia 

approximately ten days prior to the hearing date; and his reliance on counsel’s 

deficient advice that venue would be changed from Texas to Virginia after 

submission of a change-of-address form. 

As stated for the earlier referenced unexhausted claim, we lack 

jurisdiction to consider Perdomo’s ineffective-assistance-of-counsel assertion

because he did not exhaust it by presenting it to the BIA. See 8 U.S.C. 

§ 1252(d)(1); Roy, 389 F.3d at 137; Wang, 260 F.3d at 452–53. His remaining 

assertions amount to a contention that an alien’s lack of preparation, inability 

to timely retain counsel, or financial difficulties are sufficient to excuse failure 

to appear at a scheduled hearing. 

None of the asserted circumstances, however, resemble those deemed 

sufficiently compelling in 8 U.S.C. § 1229a(e)(1). Even if such circumstances 

did justify Perdomo’s failure to appear, he nonetheless failed to make adequate

efforts to avoid entry of the in absentia removal order by informing the IJ in 

advance of his extenuating circumstances or moving to continue the hearing. 

See Magdaleno de Morales, 116 F.3d at 149 (explaining that courts expect 

adequate efforts to avoid entrance of in abstentia orders). Along that line, 

although Perdomo asserts he filed a change-of-address form when he moved to 

Virginia, the administrative records contain no such notice. 

Based on the foregoing, Perdomo fails to show that the IJ’s refusal to 

reopen his in absentia removal proceedings was “capricious, without 

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

than the result of any perceptible rational approach”. Gomez-Palacios v. 

Holder, 560 F.3d 354, 358 (5th Cir. 2009); see Wang, 569 F.3d at 536–37. 

Consequently, the BIA did not abuse its discretion in dismissing his appeal. 

See Barrios-Cantarero, 772 F.3d at 1021.

DISMISSED IN PART and DENIED IN PART.

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