* Alberto Gonzales was sworn in as United States Attorney

General on February 3, 2005. We therefore have substituted Attorney General G onza les for John Ashcroft as the respondent. See Fed. R. App. P. 43(c)(2).

Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# United Stat es Court of Appeals

For the First C ircuit

No. 04-1514 ALICE KAGGWA, Petitioner,

v. ALBERTO GONZALES, Attorney General of the United States,

Respondent. *

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Lynch, Lipez, and Howard, Circuit Judges .

Emmanuel L. Muwonge and Emmanuel L. Muwonge & Associates, LLC on brief for petitioner. Peter D. Keisler , Assistant Attorney General, Civil Division, DavidV. Bernal , Assistant Director, and Andrew C. Mac Lach lan , Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, on brief for respondent.

June 3, 20051 On March 1, 2003, the INS ceased to exist as an agency within

the Department of Just ice. Its enforcement functions were transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). Because the events at issue predate that reorganization, we refer to the INS in this opinion. -2-

Per Curiam . Petitioner Alice Kaggwa seeks revie w of a Boardof Immigration Appeals (BIA) o rder summarily affirming the decision of an immigration judge (IJ) denying her motion to reopen her asylum case. We deny the petition.

Kaggwa is a citizen of Uganda who came to the United States on a six-month visa in September 1999. After he r visa expired, she remained in the United States and filed for asylum. In January 2002, the Immigration and Naturalization Service (INS) initiated removal proceedings against the petitioner for overstaying her visa. 1

On February 14, 2002, Kaggwa appeared befo re an IJ in Boston, Massachusetts, where she was living at the time. She asked for and received a continuance of the hearing until September 19, 2002. In March 2002, she relocated to Kansas City, Missouri, and sought a change of venue of the immigration proceeding from Boston to Kansas City. Her first attempt to change venue failed because she did not pr o perly serve the INS. She claims that she subsequently refiled the change of venue request, but there is no documentary evidence that she did so. In a ny event, Kaggwa was never granted a change of venue.-3- On September 15, 2002, the petitioner' s si ster died of meningitis in Uganda. In an affidavit filed to accompany the motion to reopen, the petitioner testified that she planned to dr ive f rom Kansas City to Boston on September 18th to attend the September 19th hearing which was scheduled to begin at 9:00 a.m. But on the morning of September 17th, she alleges, she received wordthat her sister had died. Kaggwa claims that, because of her grief, she could not travel to Boston on September 18th as pre viousl y planned. Instead, she asserts that she called the immigration court on the morning of the hearing to inform it that she couldnot attend because of the death in her family. The court records indicate that the petitioner called to say that she lived in Kansas City and could not attend court that day; the records do not indicate whether she mentioned her sister's death. The IJ went ahead with the hearing and, based on the information presented by the INS, entered an in absentia order that the petitioner be removed to Uganda.

After receiving notice of the removal order, the petitioner filed the motion to reopen the proceedings, on the basis of exceptional circumstances arising from her sister's death. The IJdenied the motion because (1) there was insufficient evidence of the sister's death, and (2) the petitioner should have allowed herself more than one day of traveli ng ti me to drive from Kansas-4-

City to Boston. Kaggwa appealed to the BIA, which summarily affirmed the IJ's order.

We review the BIA's denial of a motion to reopen for abus e of discretion. See INS v. Doherty , 502 U.S. 314, 323-24 (1994). Because the BIA summarily affirmed the IJ's decision, we consider the IJ's decision directly. See Herbert v. Ashcroft , 325 F.3d 68, 71 (1st Cir. 2003). For a decision to survive the abuse of discretion standard, the decision must "simply [provide] a rational explanation" for its conclusion. Zhang v. INS , 348 F.3d 289, 293 (1st Cir. 2003).

An in absentia removal order may be reopened if a motion to reopen is filed within 180 days after the date of the order and the a lie n demonstrates that her failure to appear resulted from exceptional circumstances. Se e 8 U.S.C. § 1229a(b)(5)(C). The statute is directed to "exceptional circumstances (such as serious illness of the al ien or ser ious illness or death of the spouse, childor parent of the alien, but not including less compelling circumstances) beyond the control of the alien." 8 U.S.C. § 1229a(e)(1). The exceptional circumstances standard is a "fairly tough one," Georceley v. Ashcroft , 375 F.3d 45, 51 (1st Cir. 2004), and will be met in only "rare cases." Herbert , 325 F.3d at 72.

The government does not dispute that the petitione r 's motion was timely or that, at least in some circumstances, notice of the death of a sibling just prior to a hearing could constitute2 The petitioner also filed a motion for reconsideration which

the BIA denied. Some of the arguments in the peti tione r's brief relate to the BIA's ruling on the motion for reconsideration. But t he petitioner did not seek review of this ruling, a nd we ar e therefore without j uri sdiction to consider it. See Asaba v. Ashcroft , 377 F.3d 9, 12 (1st Cir. 2004). -5- an exceptional circumstance excusing the fai lure to appear. Rather, it contends that the motion was properly denied because the evidence supports the government's view that the petitioner did not intend to appear regardless of her sister's death.

On the recordbefore us, we cannot say that the IJ abused her discretion in denying the motion to reopen. As stated above, the immigration court records indicate only that, on the morning of the hearing, Kaggwa called to say that she lived in Kansas City and wouldnot appearing in court that day. Cf. Georceley , 375 F.3d at 51 (affirming denial of a motion to reopen where the alien belatedly informed the immigration court of the reason for the absence); Lonyemv. United States Att'y Gen era l , 352 F.3d 1338, 1341 (11th Cir. 2003) (similar). Moreover, the petitioner's assertedplan to drive from Kansas City to Boston in one day to attendthe 9:00 a.m. hearing was very risky, given the distance between th e cit ies. Under the strict standard of review that we must apply, these facts adequately ground the IJ's decision not to reopen the proceedings. 2

Petition denied .