United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 1, 2005

Decided June 20, 2005

Before

Hon. DANIEL A. MANION, Circuit Judge

 Hon. DIANE P. WOOD, Circuit Judge

 Hon. DIANE S. SYKES, Circuit Judge

No. 04-3637

EUTEMIO MENA-MENDOZA,

Petitioner,

v.

ALBERTO R. GONZALES, 

Attorney General of the United States,

Respondent.

On Petition for Review of an Order of

the Board of Immigration Appeals

No. A93-047-265

O R D E R

Mexican citizen Eutemio Mena-Mendoza applied for cancellation of removal

and adjustment of status, claiming that his removal would result in exceptional

hardship to his wife and U.S.-citizen children. He missed his hearing before an

Immigration Judge, however, and was ordered removed in absentia. MenaMendoza filed a motion to reopen the proceedings, stating that he had missed the

hearing due to car trouble. The IJ denied Mena-Mendoza’s motion and he appealed. 

The Board of Immigration Appeals affirmed, and we deny the petition for review.

Mena-Mendoza walked across the Mexican border into the United States

without inspection in March 1985. The INS placed him in removal proceedings in

October 2001. Mena-Mendoza applied for cancellation of removal, claiming that his

removal would cause “exceptional and extremely unusual hardship” to his wife and

two daughters. The IJ scheduled a hearing on Mena-Mendoza’s application for

June 12, 2003, at 9 a.m. Mena-Mendoza received a written notice to appear,

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 04-3637 Page 2

warning him that if he failed to attend the hearing, it could be held in his absence

and he could be ordered removed. He did not appear at the hearing, however, and

the IJ ordered that he be removed to Mexico.

A month and a half later, Mena-Mendoza moved to vacate the removal order

and reopen his immigration proceedings, citing car trouble for his failure to appear

at his hearing. In the motion and attached affidavit, Mena-Mendoza stated that he

did not have a driver’s license and had accordingly arranged to have his employer

drive him to the hearing. Although his employer picked him up at 8:40 a.m., the car

they were traveling in broke down and Mena-Mendoza had to hail a cab. According

to Mena-Mendoza, finding a cab took about 25 minutes, and he did not arrive at

court until 9:50 a.m. Mena-Mendoza’s submissions did not explain whether the IJ

had already left the bench by the time he arrived or whether he notified anyone at

the court of his circumstances.

In September 2003 the IJ denied Mena-Mendoza’s motion to reopen, holding

that he had not identified “exceptional circumstances” justifying his failure to

appear. He reasoned that Mena-Mendoza should have made alternate travel

arrangements “so that he was not dependent on last minute transportation of

uncertain reliability.” He also noted that Mena-Mendoza’s version of events was

not corroborated by affidavits from his employer, the towing company, or anyone

who witnessed him arriving at the immigration court. Mena-Mendoza appealed to

the BIA, which affirmed without opinion.

Where the BIA adopts an IJ’s reasoning without opinion, we review the IJ’s

decision. Jamal-Daoud v. INS, 403 F.3d 918, 922 (7th Cir. 2005). The denial of a

motion to reopen an order of removal issued in absentia is reviewed for an abuse of

discretion. Kay v. Ashcroft, 387 F.3d 664, 671 (7th Cir. 2004). Review is limited to

the validity of the notice afforded to the alien, the alien’s stated reasons for failing

to appear, and whether removability has been established. 8 U.S.C.

§ 1229a(b)(5)(D); Kay, 387 F.3d at 671.

On appeal Mena-Mendoza argues that the IJ erred when he concluded that

transportation problems did not constitute exceptional circumstances justifying the

reopening of his case. He claims that he established exceptional circumstances

because the breakdown of the car he was riding in and his subsequent inability to

get a cab in heavy traffic were events “beyond his control.”

A removal order issued in absentia can be rescinded and a motion to reopen

granted if an alien demonstrates that his failure to appear at the hearing was due

to “exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i); Nazarova v. INS, 171

F.3d 478, 482 (7th Cir. 1999). Exceptional circumstances are defined as

“circumstances (such as the serious illness of the alien or serious illness or death of
No. 04-3637 Page 3

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); Kay, 387

F.3d at 670.

Mena-Mendoza has not demonstrated exceptional circumstances in this case. 

Although we have never directly addressed an alien’s failure to attend a hearing

due to car trouble, the Fifth Circuit has concluded that this does not constitute

exceptional circumstances. De Morales v. INS, 116 F.3d 145, 148-49 (5th Cir. 1997)

(no exceptional circumstances where petitioners experienced engine failure halfway

to courthouse; petitioners returned home instead of proceeding to hearing and made

only cursory attempt to contact IJ). We have tacitly endorsed this principle in dicta,

stating that “mundane car troubles” have been “rightly rejected in other cases as

unexceptional circumstances.” Nazarova, 171 F.3d at 485. Similarly, other circuits

have held that traffic congestion does not amount to the exceptional circumstances

required to excuse a failure to appear. Sharma v. INS, 89 F.3d 545, 547-48 (9th Cir.

1996) (no exceptional circumstances where petitioners were between 45 minutes

and an hour late due to traffic congestion and parking difficulties); see also Herbert

v. Ashcroft, 325 F.3d 68, 72-73 (1st Cir. 2003) (“if this were a simple situation of

Herbert miscalculating how long it would take him to get to the hearing room on a

winter’s day in Boston, this rationale would not suffice to overturn a denial of a

motion to reopen”). Mena-Mendoza has identified only unexceptional problems that

could befall any petitioner and not the “compelling” and “unfortunate chain of

events” required to rescind a removal order issued in absentia. Cf. Nazarova, 171

F.3d at 484 (alien missed hearing by waiting for tardy interpreter; INS had

previously promised to provide an interpreter and failed to do so, resulting in

hearing that alien could not understand).

Mena-Mendoza also argues that the IJ erred in denying his motion to reopen

because he “has shown that had he arrived at his hearing, he would have been

granted relief.” He claims that because he has worked in the U.S. since 1985, paid

taxes, and raised two U.S. citizen daughters, he is eligible for cancellation of

removal and adjustment of status. But we lack jurisdiction to address this claim

because Mena-Mendoza’s eligibility for discretionary relief is not within the narrow

parameters of review for in absentia orders. 8 U.S.C. § 1229a(b)(5)(D); Kay, 387

F.3d at 671 (review is limited to validity of notice, removability, and presence of

exceptional circumstances). Regardless, we note that Mena-Mendoza has made

only the bare assertion of his eligibility for cancellation of removal, without

supporting citations to the record or the appropriate statutes.

Accordingly, we DENY Mena-Mendoza’s petition for review.