Mena-Mendoza, Eutemi v. Gonzales, Alberto R.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
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, On Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A93-047-265
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ORDER
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. Mena-
Mendoza 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,
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.