T h e H o n o ra b le R o b ert L eo n Jo rda n , U n it ed S tat es D ist ri ct Ju d g e f o r t h e E astern * D i s t r i ct of Tennes s ee, s i t t i ng by des i gnat i on. M hai dl i fi l ed a mot i on t o s t ay agenc y j udgm ent p en d ing t hi s appea l , w hi ch w as 1 d e n ie d A p ri l 2 8 , 2 0 1 0
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File Na me: 10a0360n.06 No. 09-3273 U N IT E D S T A T E S C O U R T O F A P P E A LS F O R T H E S IX T H C IR C U IT M O H A M A D IB RA H IM M H A ID LI,

Petitioner,
v. ERI C H . H OL DE R, JR.

Respondent. ) ) ) ) ) ) ) ) ) ONPET I TI ONF OR REV I EW F RO M A FI NAL ORDER OF TH E BO ARD OF I MMI GR AT I ONAPP EA L S, A GENC Y No. A099 997 321

B e fo re : KENN EDY and COLE, Cir c uit Judg e s; JORDAN, District J udg e. * LEON JORDAN, District J udg e. Petitioner Mohama d Mhaidli, a native a nd citizen of L ebanon, a

ppeals a Boa

rd of Immigration Appea ls (“B oard” or “B I A”) decision deny ing a motion to reope n h i s remova l proce eding s. An I mmigration J udg e (“ I J ”) or dere d Mhaidli removed in
a b s e nti a af

t er he failed to a

ppear at his removal he aringbeca use he w as mistaken about the date. For the re asons that follow, we DENY Mhaidli’s petition for revie w. 1

F ACTUAL AND P ROCEDURAL BACK GR OUND On Marc h 29, 2007, Mhaidli was serve d with a Noti ce to Appear that char g ed him with being
remova ble as an alien prese nt in the United States without inspec tion. The Notice to Appear inform ed M h ai d l i t h at h e wa s require d to appea r at a hear ing be fore an I J at a date to be set. The2

notice wa rned him that his failure to appea r could mea

n remova l in his absence. O n J une 7, 2007, Mhaidli w as serve d with notice of the date and time of his he aring , which was set for Octobe r 4, 20 07 . T hat he ari ngno tic e a g a in w arn e d M ha idl i th a t if he fa ile d to a

pp e ar h e c ou ld b e re mov e d in his a bs ence. Mh a idl i a dmi ts that he re c e ive d th e no tic e . H e , h ow e ve r, fa ile d to a pp e ar at hi s hear ing, a nd the I J order ed him remove d in a bs e nti a . After becom i n g aw are of the missed hea ring date, Mha idli obtained counsel and f iled a motion to reop en p ro ce ed i ng s on October 11, 2007. He a sserted in the motion that a ser ies of unfortunate and exceptional circ umstances wer e the cause of his f ailure to attend. I n support of the mot ion , M ha idl i atta c he d h is a ff ida vit , w hic h s tate s in

pe rt ine nt p art

a s f oll ow s: 1. Ido no t sp e ak E ng lis h a nd have be e n und e r a

g re a t de a l of s tr e ss w ith related hea lth problems. 2. Ihave g ive n a ll m y

imp or tant p a pe rs to a ve ry c los e fri e nd , M ary

B a zzi, who is like a si ster to me. She kee ps all my important paper s and I

thought that she would remind me of the date f or t h e M as t er H ear ing. I was unde r the mistaken opinion that the Master He aringwas set f or April of ne x t y ear . 3. Howeve r, Mar

y Ba zz i forg ot to remind m e of the hearing date a nd Imissed it. 4. My

brother is also involved in immi g ration proc eeding s and there fore had re ta ine d a n A tto rn e y , w ho is a lso an a c qu a int anc e of Mary B a zzi, t o h and le tho se immigration procee dings. I was short of f

unds to reta in this Attorney when I spoke to this attorney conce rning this matter and about pay ing a rete ntion fee. I

was unde r the belief that the Attorney

had re corde d the date of my Hea ring and would conta ct me bef ore the Master hear ing about the paying the rete ntion fee a nd tell me the date. 5. Be cause I did not hear from either Mary Ba zz i or the Attorney , who I relied on, Imissed the date. I n a fo otn ote to t

h e a ff ida vit , M ha idl i r e pr e se nte d th at “ fu rt he r s ub sta nti a tio n” of

the str e ss a

nd he a lth problems would be pr esente d to the court. Mhaidli did not, however , submit any ad d i tional do c ume ntatio n r e g ard ingthe se pr ob le ms.3

Th e I J denie d th e mot ion to r e op e n o n N ov e mbe r 2 3, 20 07 , n oti ngthat Mh a idl i f a ile d to show exceptional circ umstances be y ond his control t o excuse his failure to appea r. The I J noted that Mhai d l i did not disput e that he ha d rec eived notice of the he aringbut simpl y asser ted that he wa s “conf used” a bout the date, whic h fails to meet the e x ceptional c ircumstance s standard. Mhaidli appea led the I J ’s decision to the BIA. While ag ain conc edingthat he had r ece ived notice of the hear ing, Mha idli argued to the Board that the “e x ceptional c ircumstance s” standar d for g rantinga motion to reopen a n in absentia order is unc onstitut ionally vague. He further argued that the I J should have g iven him a hea ring on his moti on to reope n. Th e B I A dis mis se d Mha idl i’ s app e a l on F e br ua ry 11 , 2 00 9. Th e B oa

rd no te d th a t Mh a idl i
c on c e de d th a t he re c e ive d n oti c e of the he ari ngbu t th a t he co nt ended he mis se d th e he ari ngdate beca use he relied on another person to advise him. The B oard a lso noted that there w as no additional evidenc e in t h e rec ord to substantiate the stre ss and hea lth problems that Mhaidli said caused or contributed to his missing the hea ring date. With reg ard to Mhaidli’s constitutional challeng e, the B oa rd fo un d th a t th e law i s w e ll s e ttl e d th a t th e B I A la c ks jur isd ic tio n to r ule on the c on sti tut ion a lity of the I mmigration a

nd Nationality Act (“I

NA”)
. I n addition, the BIA noted that Mhaidl i h ad not cited to pe rtinent leg al authority to suppor t his contention that the I J is r equire d t o h o l d an evidentiar y hear ing to reope n proce eding s when the responde nt has failed to a ppear for he aringdue to e xce pti on a l ci rcumst anc e s. L a st, the B oa rd fo un d th a t th e I J cor

re c tly de te rm ine d th a t Mh a idl i failed to e stablish ex ceptional c ircumstances for his failure to appe ar at the hear ing on O ctober 4, 2007. This petition for revie w followed.4 STA ND AR

D O F RE VI EW “Where the B I A re views the immigr ation judge ’s dec ision and issues a s eparate opinion, rathe r than summarily

aff irming the immigration judge’ s decision, we r eview the BIA’s dec ision as th e f in a l a g e n c y d e te r

mination.” K

h a l ili v. Holder , 557 F.3d 429, 435 ( 6 Cir. 2009). This court th revie ws the denia l of a motion to reopen unde r an a bus e of discre tion standard. Bi Feng Liu v. Holder , 560 F.3d 485, 489 ( 6 Cir. 2009). An abuse of discre tion occurs when the denia l of the th motion to reopen “w as made without a rational ex planation, i nexpli cably depar ted from e stablished policies, or re sted on an impermissible basis such a s invidious di scriminati o n against a particular
rac e or g roup.” Allabani v. Gonzales , 4 0 2 F. 3 d 6 6 8 , 6 7 5 (6 C i r. 2 0 0 5 ) ( ci t i n g Ba lan i v . I NS , 669 th F.2d 1157, 1161 ( 6 Cir. 1982)). This cour t review s questions of law de novo. K h a l i li , 557 F.3d th at 435. Howe ver, “ substantial defe renc e is g iven to the B I A’s inter p re t at i o n o f t he I

NA and
acc ompanying r egulations.” Id
. (citations omitted). The B I A’s fa ctual finding s are revie wed unde r the substantial evidenc e standa rd. Sanusi v. Gonzales, 474 F.3d 341, 345 ( 6 Cir. 2007). th DI SCU SSIO N An alien may

be depor ted for f ailing to a

ppear at a r emoval proc eeding
. S ee 8 U. S .C. § 12 29 a (b )( 5) (A ). “ I f an a lie n is pr ov ide d pr op e r wr itt e n no tic e of a re mov a l pr oc e e din g and sti ll f a ils to a tt e n d , th e I J mu s t e n te r an in ab sen tia order of re moval if the ag ency establishes ‘by

clea r,
un e qu ivo c a l, an d co nv inc ing e vid e nc e that the wr itt e n noti c e wa s so pro vid e d an d th a t th e a lie n is
remova ble [ ] .’” Ablaha d v. Gonzales , 217 F. App’ x 470, 473 (6 Cir. 2007). An in a bs e nti a th

remova l or der may be resc inded “upon a motion to reopen filed within 180 day s after the date of

the order of re moval if the alien de monstrates that the fa ilure to ap p ea r was beca use of e x ceptional
c ir c ums tances.” 8 U.S.C. § 12 29 a (b )( 5) (C )( i) . “ Exc e pti on a l c ir c ums tanc e s” are de fi ne d a s th os eA cquaa h’ s at t or ney di d not fi l e t he m ot i on t o r eopen a s he r epr es ent ed he w oul d, and 2 aft er t w o and a hal f y ear s , A cquaa h w as t aken i nt o cus t ody
. A not her at t or ney w as r et ai ned, a n d b o th fi led m o ti o n s to r eo p en that w ere w ell o u tsi d e t h e 18 0 d ay s set o u t in 8 U
. S .C . § 129a( b) ( 5) ( C ) ( i )
. A cquaa h as s er t ed i neff ect i ve as s i s t ance of counse l and equi t abl e t ol l i ng a rg u m e n ts th a t th is c o u rt d id n o t n e e d to re a c h b e c a u se h e h a d n o t m a d e th e re q u isite s h o w in g th a t h e m is s e d th e h e a ri n g b e c a u s e o f e x c e p tio n a l c ir c u m s ta n c e s . A c q u a a h , 589 F. 3d. at 337. 5 “c ir c u ms ta

n c e s ( s u c h a s b a tt e r

y o r e xtr e me c r

u e lt y to th e a li e no r

an y c h il d o r p ar e n t o f th e alien, serious illness of the alien, or serious illness or death of the spouse, child or pare nt of the alien, but not including less c ompelling c ircumstance s) beyond the co n t ro l of the alien.” 8 U.S.C. § 1229a(e )(1)
. Mhaidli does not dispute that he rece ived not ice of the hearing , nor does he claim that he wa s in custody

or ill and there fore unable to attend. He contends that he was mistaken about the date of the he ari ngbe c a

us e his fr ie nd

Mary B a zzi ne g le c te d to inf

or m hi m of the c or re c t date . T he iss ue in this appeal is whethe r Mhaidli’s mistaken under standing about the date of his hearingdemonstrates
e xce pti on a l c ir c ums tanc e s. This court re cently

addre ssed a similar cir cumstance in Acquaah v . Holder , 589 F.3d 332 ( 6 th Ci r . 2 0 0 9 )
. T h e p e t i t i o n e r , a n a t i v e an d c i t i z e n o f G h an a , h a d r e c e i v e d n o t i c e t o app e a r a t a telephonic he aringbu t failed to a ppear . The I J order ed him remove d in a bs e nti a . Acqua ah
a c kn ow le dg e d th a t he re c e ive d p ro pe r n oti c e that th e he ari ng wa s set fo r July 5, but he mis take nly believed it wa s to be held on J uly 7. He discove red he had missed the hea ring when he appea

red on J uly 7. Two motions to reopen we re f iled, both of which we re de nied by the I J
. This court held, 2

“ Ac qu a ah’ s mi sta

ke a s to the c or

re c t dat e of

his he ari ngha d s e ve re c on se qu e nc e s, but it wa s a ‘l e ss compelling circ umstance [ ]’ than that r equire d for relief under 8 U .S.C. § 1229a(e)( 1).” Id . at 337.6

I n his affidavit, Mhaidli refer ence s health and stre ss pr oblems. These pr oblems were never
su bs tan ti ate d n or

is the re any

ind ic a tio n th a t th e y

we re su c h th a t he ne e de d a ssi sta nc e in
reme mberinghis hearingdate or in appea ring at the hear ing. Mhaidli’s relianc e on Mary Ba zz i and
an unname d attorney

with whom he had no attorney -client relationship to remind him of the hea ring and their f

ailure to do so do not constitute exceptional circ umstances. His misunderstanding about when his hea

ring was set is a “ less compelling circ u m s t ance [ ] ” than is re quired by the standar d established by

8 U.S.C. § 1229a(e) (1). Theref ore, the re w as no abuse of discre tion in deny ing the motion to reopen the in absentia order
. Mh a idl i a l s o ar g u e s t h a ti tw a s e r r o r f o r t h e I J n o tt o g r an tane v i d e n t i ar y h e ar i n g o nhis motion to re open. The BIA held that Mhaidli ha d failed to pr ovide any pertinent a uthority to support his c ontention that a

n I J is r equire d to hold a

n evidentiar

y hear ing when ther e is a fa ilure to appe ar at a he aringbased on e x ceptional c ircumstance s. An alien is entitled to a full and fa ir deportation hearing
. Se e, e .g ., Am ad ou v . I NS , 226 F.3d 724, 727 (6 Cir. 2000). The denial of a motion to reope n, howeve r, is a discretionar

y decision, and th this court has held that such a decision does not implicate due pr ocess. Ramirez v. G onzales , 247 F . App ’x 78 2, 78 6 ( 6 Cir . 2 00 7) ; see also Al Roumy v. M ukasey , 290 F. App’ x 856, 861 (6 Cir. th th 2008) (“ Al Roumy

mistakes his due pro ce s s ri g ht to a full and fa ir deportation hearingwith the proce ss to which he is entitled at the motion to reope n stag e. . . . There fore , Al Roumy ’s claim that his due process rights wer e viol ated by the B I A’s fa ilure to conduc t a hea ringis meritless.”). The I J was not re quired to conduc t an evidentiar y hear ing on Mha idli’s moti on to reope n. Pe tit ion er also a lle g e s th a t th e “ e xce pti on a l c ir c ums tanc e s” do c tr ine is u nc on sti tut ion a lly vague. “T he esse ntial purpose of the ‘void fo r vagueness’ doctrine is to war n individuals of the7

criminal conse quence s of their c onduct.” Jordan v. D e Ge orge , 3 4 1 U
. S. 223, 2 3 0 ( 1 9 5 1 )
. “ [I ]n vie w o f t he grav e nat ur e of

de po rt a tio n, ” the do c tr ine ha s b e e n a pp lie d b e y on d c ri min a l la ws to immigration statutes. Id. at 231. Howeve r, petit ioner was g iven clear wa rning about what be havior he must eng ag e in to avoid adverse imm igr ation action: he was tol d to arr ive at a specific pla ce at
a specific time. The fa ct that the rule s g rant discr etion to the I J to exc use a viol ation does not make the standar d unconstitutionally vague. I n fac t, this court routinely uses the exceptional circ umstance standard when dec iding whe ther to excuse a litig ant’s fa ilure to do something, such as, f or example, the failure to preser

ve an issue on a

ppeal. E.g. Un ite d States v. A rc hib ald, 5 89 F .3 d 2 89 , 2 96 (6 th Cir . 2 00 9) (whe the r to c on sid e r an argume nt n ot r a ise d b e low ); United States v. Gardiner , 463 F.3d 445, 459 (6th Cir. 2006) (whe ther somethingis plain error ). CO NC LU SION For the re asons set for

th above, we DENY Mhaidli’s petition for revie w.