Ilias v. Gonzales , 174 F. App'x 893 ( 2006 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0231n.06
Filed: March 31, 2006
No. 05-3205
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BORALDA ILIAS,
Petitioner,
v. ON APPEAL FROM THE BOARD OF
IMMIGRATION APPEALS
ALBERTO R. GONZALES,
Respondent.
/
BEFORE: MARTIN, SILER, & CLAY, Circuit Judges.
CLAY, Circuit Judge. Petitioner Boralda Ilias petitions this Court to review the January
28, 2005 order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s
(“IJ”) decision that denied Petitioner’s motion to reopen her deportation proceedings. The IJ had
previously ordered Petitioner to be removed in absentia because Petitioner failed to attend her
master calendar hearing. For the following reasons, we DENY the petition for review.
I.
Petitioner Boralda Ilias is a native and citizen of Albania. On January 25, 1999, she entered
the United States legally as a nonimmigrant J-1 Exchange Visitor. Her status expired in December
2000, and Petitioner remained in the United States after her status expiration. As a result, on March
21, 2002, the Immigration and Naturalization Service (“INS”) placed Petitioner in removal
No. 05-3205
proceedings. On April 1, 2002, the INS sent Petitioner notice that she was scheduled to appear
before the immigration court in a master calendar hearing on November 27, 2002.
On November 27, 2002, Petitioner failed to appear for the master calendar hearing. At the
hearing, the INS presented evidence of Petitioner’s removability. The IJ ordered Petitioner’s
removal in absentia.
On January 17, 2003, Petitioner filed a motion to reopen her removal proceedings. The basis
for her motion was that on August 16, 2001, her father, at his own master calendar hearing for
removal, requested that Petitioner be included in his asylum application as a derivative. Aside from
Petitioner’s assertions, there is no evidence that Petitioner’s father made such a request, and there
is no evidence that the immigration court granted such a request. Petitioner stated that she “did not
appear at [her master calendar hearing] because she was expecting her case to be consolidated with
her father’s case.” (J.A. at 33.) Her father had an individual hearing scheduled for April 25, 2003.
On March 10, 2003, the IJ denied Petitioner’s motion to reopen. The IJ found that
Petitioner’s reason for failing to appear at her master calendar hearing did not rise to the level of
“exceptional circumstances” as required under the Immigration and Nationality Act (“INA”).
Petitioner appealed the IJ’s decision to the BIA. In a per curiam order, the BIA affirmed the
IJ without opinion. Petitioner then petitioned this Court to review the BIA decision.
II.
Where the BIA affirms the IJ’s decision without opinion, this Court reviews the IJ’s decision
directly. Shkabari v. Gonzales, 427 F.3d 324, 327 (6th Cir. 2005) (citation omitted). This Court
2
No. 05-3205
reviews the denial of a motion to reopen for an abuse of discretion. Beltran v. INS, 332 F.3d 407,
410 (6th Cir. 2003) (citation omitted). Review of an in absentia removal order is limited to: “(i) the
validity of the notice provided to the alien, (ii) the reasons for the alien’s not attending the
proceeding, and (iii) whether or not the alien is removable.” 8 U.S.C. § 1229a(b)(5)(D).
We conclude that the IJ did not abuse her discretion when she denied Petitioner’s motion to
reopen her removal proceedings, and we therefore deny the petition for review. With respect to an
alien’s failure to appear at her master calendar hearing, the INA states:
Any alien who, after written notice . . . has been provided to the alien or the alien’s
counsel of record, does not attend a proceeding under this section, shall be ordered
removed in absentia if the Service establishes by clear, unequivocal, and convincing
evidence that the written notice was so provided and that the alien is removable . .
..
8 U.S.C. § 1229a(b)(5)(A) (emphasis supplied). The in absentia removal order may be rescinded
only in two circumstances:
(i) upon a motion to reopen filed within 180 days after the date of the order of
removal if the alien demonstrates that the failure to appear was because of
exceptional circumstances . . ., or
(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien
did not receive notice . . . or the alien demonstrates that the alien was in Federal or
State custody and the failure to appear was through no fault of the alien.
8 U.S.C. § 1229a(b)(5)(C). The INA defines “exceptional circumstances” as “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) (emphasis supplied).
3
No. 05-3205
When determining whether exceptional circumstances exist in a given case, the IJ must look
to the totality of the circumstances. Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003) (citation
omitted). The petitioner has the burden to prove exceptional circumstances. Scorteanu v. INS, 339
F.3d 407, 411 (6th Cir. 2003) (citation omitted).
Petitioner here does not argue that she failed to receive notice of the master calendar hearing
or that she was in federal or state custody. Petitioner only argues that she failed to attend her hearing
because she was expecting her case to be consolidated with her father’s case, which was scheduled
for hearing approximately five months after her hearing. Relying solely on this basis, Petitioner fails
to meet her burden of proving exceptional circumstances.
We note that there is no proof in the record that Petitioner’s father even requested the
immigration court to consolidate his and Petitioner’s cases. Assuming that such a request was made,
there was no proof in the record that the immigration court in fact consolidated the cases.
Petitioner’s mere expectation that the immigration court was going to grant her father’s request is
insufficient to demonstrate exceptional circumstances. Case law as to a motion for change of venue
is instructive in this regard.
The circuits have been consistent in holding that a petitioner’s submission of a motion for
change of venue, and his expectation that the immigration court will grant the motion is “not
remotely an exceptional circumstance beyond the alien's control.” Georcely v. Ashcroft, 375 F.3d
45, 50 (1st Cir. 2004). In such a circumstance, the petitioner must still attend the scheduled master
hearing. Likewise, Petitioner had a master calendar hearing scheduled for November 27, 2002.
While she claims that her father made a request to consolidate their cases, Petitioner has not shown
4
No. 05-3205
that her father’s purported request for consolidation was in fact granted by the immigration court.
Her assumption that said request would be granted “is not remotely an exceptional circumstance
beyond the alien’s control.” Id. From a qualitative standpoint, Petitioner’s proffered basis is far
“less compelling” than the “serious illness of the alien or serious illness or death of the spouse, child,
or parent of the alien.” See 8 U.S.C. § 1229a(e)(1). She simply has not shown that she was unable
to attend the hearing, or that an occurrence beyond her control severely burdened her potential
attendance. Petitioner’s claim that the immigration court failed to act on her father’s request, (Pet.
Br. 8), has no merit. Even assuming the truth of this statement, Petitioner was still obligated under
federal law to attend her master calendar hearing, and she failed to do so. Having proven no
exceptional circumstances, the IJ properly denied Petitioner’s motion to reopen.
For the foregoing reasons, we DENY the petition for review.
5