*Alberto Gonzales was sworn in as United States Attorney

General on February 3, 2005. We therefore have substituted

Attorney General Gonzales 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Not for Publication in West's Federal Reporter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 States Court of Appeals

For the First Circuit

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,

David V. Bernal, Assistant Director, and Andrew C. MacLachlan,

Attorney, Office of Immigration Litigation, Civil Division,

Department of Justice, on brief for respondent.

June 3, 2005
1On March 1, 2003, the INS ceased to exist as an agency within

the Department of Justice. 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 review of a

Board of Immigration Appeals (BIA) order 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 her 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 before 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 properly 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 any event, Kaggwa was

never granted a change of venue.
-3-

On September 15, 2002, the petitioner's sister died of

meningitis in Uganda. In an affidavit filed to accompany the

motion to reopen, the petitioner testified that she planned to

drive from 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

word that her sister had died. Kaggwa claims that, because of her

grief, she could not travel to Boston on September 18th as

previously planned. Instead, she asserts that she called the

immigration court on the morning of the hearing to inform it that

she could not 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

IJ denied 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 traveling time 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

abuse 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 alien demonstrates that her failure to appear resulted from

exceptional circumstances. See 8 U.S.C. § 1229a(b)(5)(C). The

statute is directed to "exceptional circumstances (such as 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). 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 petitioner's

motion was timely or that, at least in some circumstances, notice

of the death of a sibling just prior to a hearing could constitute
2The petitioner also filed a motion for reconsideration which

the BIA denied. Some of the arguments in the petitioner's brief

relate to the BIA's ruling on the motion for reconsideration. But

the petitioner did not seek review of this ruling, and we are

therefore without jurisdiction to consider it. See Asaba v.

Ashcroft, 377 F.3d 9, 12 (1st Cir. 2004).

-5-

an exceptional circumstance excusing the failure 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 record before 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

would not 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); Lonyem v. United States Att'y General, 352 F.3d 1338,

1341 (11th Cir. 2003) (similar). Moreover, the petitioner's

asserted plan to drive from Kansas City to Boston in one day to

attend the 9:00 a.m. hearing was very risky, given the distance

between the cities. 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.