James v. Ashcroft ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 17, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_________________________ Clerk
No. 03 - 60195
SUMMARY CALENDAR
_________________________
ANDREW JAMES,
Petitioner,
v.
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
______________________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78-553-395
______________________________________________________________________________
Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:1
In this appeal we review the Board of Immigration Appeals’ decision denying Andrew
James’ motion to reopen his removal proceedings. When James failed to attend his removal
hearing, the Immigration Judge issued an in absentia removal order. James claims that his absence
was due to a viral infection, and that the illness constitutes an exceptional circumstance justifying
rescission of the removal order and reopening of his proceedings.
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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The Board of Immigration Appeals affirmed the Immigration Judge’s decision without an
opinion, so we review the Immigration Judge’s decision. See Mikhael v. INS, 115 F.3d 299, 302
(5th Cir. 1997). We review the denial of a motion to reopen for abuse of discretion. De Morales
v. INS, 116 F.3d 145, 147 (5th Cir. 1997).
An order of removal will be rescinded only if the alien demonstrates that his failure to
appear was due to exceptional circumstances beyond his control. 8 U.S.C. §§ 1229a(b)(5)©) and
1229a(e)(1).
James has failed to establish that he is entitled to rescission of the Immigration Judge’s
order based upon exceptional circumstances because he delayed almost six weeks in contacting
the court regarding his absence due to illness. See De Morales, 116 F.3d at 149. The petition for
review is denied.
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