Carlos Alberto Sierra Pineda v. U.S. Atty. Gen.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15775 JUNE 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A98-395-293
CARLOS ALBERTO SIERRA PINEDA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 14, 2006)
Before BIRCH, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Carlos Alberto Sierra Pineda petitions for review of the order by the Board
of Immigration Appeals (BIA) denying his motion to reconsider its previous order
affirming the immigration judge’s (IJ’s) denial of his motion to reopen his removal
proceedings and to rescind an in absentia removal order, based on 8 C.F.R.
§ 1003.2(b).
I. BACKGROUND
Mr. Pineda, a native and citizen of Colombia, was admitted to the United
States on 10 June 2000 as a non-immigrant visitor for pleasure. After he had
remained in the United States beyond the permitted time frame, the Immigration
and Naturalization Service issued and served him with a Notice to Appear for a
deportation hearing on 18 August 2004 at 9:30 a.m.. Mr. Pineda subsequently filed
an application for asylum; however, he did not appear as scheduled at his
appointed immigration hearing and, as such, the immigration judge ordered him
removed to Colombia in absentia. According to Mr. Pineda, on the day of his
hearing, he initially went to the incorrect location--the building where he filed his
asylum application rather than the immigration court. After realizing his mistake,
he went immediately to the correct building. Mr. Pineda says that he arrived at the
courthouse at 9:30 a.m., but, due to a delay in determining the appropriate room for
his hearing, he only made it to the courtroom after the order had been entered. He
then proceeded to the clerk’s office, where his copy of the notice to appear was
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stamped with the current time, 9:47 a.m.. The exact timing of Mr. Pineda’s arrival
is unclear, however, as the IJ declared that the order was entered “well after the
9:30 appointment” at a point in time when Mr. Pineda had not appeared as
scheduled. R1-30.
II. DISCUSSION
We review the BIA’s denial of a motion to reconsider for an abuse of
discretion. See Assa’ad v. United States Attorney Gen., 332 F.3d 1321, 1341 (11th
Cir. 2003); 8 C.F.R. 1003.2(a). In so doing, we give “very broad discretion” to the
BIA. Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999) (per curiam). Under
this standard, the petitioner must show that the BIA reached its decision in an
“arbitrary or irrational manner” in order for us to find such an abuse. Gomez-
Gomez v. I.N.S., 681 F.2d 1347, 1349 (11th Cir. 1982).
The Immigration and Nationality Act (INA) provides that an alien who does
not appear for a hearing after receiving written notice “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). Such an order may be rescinded upon a motion to reopen if the
alien demonstrates that he failed to appear because of “exceptional circumstances.”
8 U.S.C. § 1229a(b)(5)(C)(i). According to the INA, “exceptional circumstances”
would include situations “beyond the control of the alien,” including “serious
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illness of the alien or serious illness or death of the spouse, child, or parent of the
alien, but not including less compelling circumstances.” 8 U.S.C. 1229a(e)(1).
Mr. Pineda is unable to show that his situation would fall under the INA’s
definition of “exceptional circumstances.” Based on the language of the statute,
Mr. Pineda’s episode does not seem to be of the same type as the events discussed
in the INA. Additionally, there are no cases that directly support Mr. Pineda’s
argument. He cites Matter of Singh as showing that a short delay in appearing
before the court can constitute such a circumstance; however, that case actually
describes a tardiness due to the illness of a family member, which more closely
resembles the examples given in the INA than does Mr. Pineda’s situation. Int.
Dec. 3324. Additionally, this case is distinguishable from those other instances in
which courts have found that a delay can constitute “exceptional circumstances,”
as here we have no evidence that the holdup was due in part to misdirection or
confusion caused in part by court officials. See Nazarova v. I.N.S., 171 F.3d 478(7th Cir. 1999) (involving a tardiness due to not being provided an interpreter);
Romani v. I.N.S., 146 F.3d 737 (9th Cir. 1998) (dealing with a staff instruction to
not to appear in the courtroom).
Also the BIA did not abuse its discretion in rejecting the motion to reopen.
Other circuit courts have found that situations akin to Mr. Pineda’s, in which a
decision was entered in absentia when the alien was less than thirty minutes late for
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the hearing, can constitute an abuse of discretion. See Alarcon-Chavez v.
Gonzales, 403 F.3d 343 (5th Cir. 2005); Jerezano v. I.N.S., 169 F.3d 613 (9th Cir.
1999). However, we have never previously made such a finding. Given our
general reluctance to find an abuse of discretion by the BIA, we thus defer to its
judgment, particularly in a case like this, in which the BIA properly considered
whether its prior decision was incorrect and its conclusion was permissible under
the relevant law. In performing its review, the BIA first determined that no new
evidence or errors of fact or law had been brought up by Mr. Pineda. Bearing this
in mind, the BIA found that Mr. Pineda’s situation did not constitute an
exceptional circumstance, especially since he did not initially go to the correct
location for the hearing. Since no “exceptional circumstance” existed, the INA
allowed the BIA to legally reject the motion to reopen if it deemed fit to do so.
Mr. Pineda also asks us to examine his claim of eligibility for asylum based
on past persecution and fear of future persecution. The INA requires the alien to
exhaust all administrative remedies in order for us to review a final order for
removal. 8 U.S.C. § 1252(d)(1). Thus if an individual “fail[s] to raise . . .
arguments before the IJ and BIA, we lack jurisdiction to address them.” Galindo-
Del Valle v. Attorney Gen., 213 F.3d 594, 599 (11th Cir. 2000) (per curiam),
superseded on other grounds by statute as stated in, Balogun v. United States
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Attorney Gen., 425 F.3d 1356, 1359 (11th Cir. 2005), cert. denied, __U.S.__,
__S.Ct.__, No. 05-1156 (May 1, 2006).
Mr. Pineda’s claim of both past persecution and fear of future persecution
may have sufficient backing, but he refrained from making this argument before
the BIA. Though he checked the box on his Notice of Appeal asserting that he
would argue the merits of the IJ’s removal decision, nothing in the text of his
appeal addressed this issue specifically. Given this lack of textual discussion, it
seems inappropriate for us to assert that Mr. Pineda argued the asylum claim before
the BIA. As such, he has not exhausted all of his administrative remedies with
respect to this claim, and we thus lack jurisdiction to hear it.
III. CONCLUSION
Mr. Pineda has failed to show an abuse of discretion by the BIA in rejecting
his motion to reconsider his motion to reopen removal proceedings. Additionally,
his situation does not constitute an “exceptional circumstance,” which would
require the reopening of such proceedings. His petition to reopen the motion to
reconsider is thereby denied.
Due to Mr. Pineda’s failure to exhaust his administrative remedies by
challenging the denial of his applications for relief before the BIA, we lack
jurisdiction to consider Pineda’s arguments that he established eligibility for
asylum and relief under the CAT. We therefore dismiss this portion of his suit.
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PETITION DENIED IN PART, DISMISSED IN PART.
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