FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 30, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16118

Non-Argument Calendar

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Agency No. A072-843-726

TONY BURTON,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(July 30, 2010)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
Tony Burton petitions for review of the Board of Immigration Appeals’

(BIA) final order dismissing his appeal of the Immigration Judge’s (IJ) order

denying his motion to reopen his in absentia deportation order. Although Burton

filed his motion more than 12 years after the expiration of the 180-day time period,

he contends the ineffective assistance of his counsel amounts to an exceptional

circumstance that should excuse his failure to appear at his 1995 deportation

hearing. Alternatively, Burton argues the time period should be tolled based on the

ineffective assistance of counsel. After review, we deny Burton’s petition.

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A motion to reopen a removal order entered in absentia may be rescinded

only “upon a motion to reopen filed within 180 days after the date of the order of

deportation if the alien demonstrates that the failure to appear was because of

exceptional circumstances.” See 8 U.S.C. § 1252b(c)(3)(A) (1994). The statute

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defines “exceptional circumstances” as circumstances beyond the control of the

alien, “such as serious illness of the alien or death of an immediate relative of the

 “We review the BIA’s denial of a motion to reopen for an abuse of discretion.” Abdi v. 1

U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 1999). “[R]eview is limited to determining

whether there has been an exercise of administrative discretion and whether the matter of

exercise has been arbitrary or capricious.” Id. (internal quotations omitted). 

 Burton does not argue he did not receive proper notice of the hearing in accordance 2

with 8 U.S.C. § 1252b(c)(3)(B) (1994), and has thus abandoned the issue. See Sepulveda v. U.S.

Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument

on an issue, that issue is abandoned.”).

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alien, but not including less compelling circumstances.” 8 U.S.C. § 1252b(f)(2)

(1994).

Burton has not alleged a cognizable “exceptional circumstance.”

Specifically, Burton claimed he did not attend his 1995 deportation hearing

because his attorney waited until the day before to notify him of the hearing, and

he was unable to obtain last-minute transportation. Inability to find transportation

is not similar to or as compelling as the statutory requirement of serious illness or

death. 8 U.S.C. § 1252b(f)(2)(1994). Thus, Burton has not demonstrated his

entitlement to reopen his proceedings on the basis of exceptional circumstances.

Even assuming, arguendo, equitable tolling was available based on

ineffective assistance of counsel, the BIA did not abuse its discretion by finding it

unwarranted in this case. Burton failed to act with the requisite due diligence,

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waiting more than 12 years after the 180-day period expired before filing his

motion to reopen. See Irwin v. Dep’t of Veterans Affairs, 111 S. Ct. 453, 457–48

(1990). Moreover, despite his knowledge of the hearing, Burton never inquired as

to his immigration status prior to filing his motion to reopen, and only filed his

motion to reopen after he was detained by immigration officials.

PETITION DENIED.

 As Burton concedes, our decisions in Abdi, 430 F.3d at 1150, and Anin v. Reno, 188 3

F.3d 1273 (11th Cir. 1999), do not allow in absentia deportation orders to be equitably tolled on

account of ineffective assistance of counsel.

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