Submitted: September 20, 2016
for Review of an Order of the Board of Immigration Appeals
COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
Alvarado-Arenas, a citizen of Mexico, was ordered removed
in absentia when he failed to appear for a removal
hearing in an immigration court. He moved to reopen the
hearing, but an immigration judge denied the motion, and the
Board of Immigration Appeals affirmed after finding no
exceptional circumstances that justified the alien's
failure to appear. We conclude that the Board did not abuse
its discretion, so we deny Alvarado-Arenas's petition for
was admitted to the United States in 2006 on a nonimmigrant
K-1 visa that he obtained based on his engagement to marry a
U.S. citizen. The couple married that year, and
Alvarado-Arenas was granted conditional permanent resident
status in 2008. After Alvarado-Arenas and his wife failed to
appear at an interview on his application to remove the
conditions on his status, the Department of Homeland Security
terminated his conditional permanent resident status.
August 2012, the Department filed a Notice to Appear charging
that Alvarado-Arenas was removable under 8 U.S.C. §
1227(a)(1)(D)(i) because his conditional resident status was
terminated. Alvarado-Arenas's counsel appeared by
telephone at an initial removal hearing in November 2012. At
that time, the immigration judge granted Alvarado-Arenas a
continuance of the removal proceedings based on a new Form
I-751 (a petition to remove conditions on residence) that
Alvarado-Arenas had filed a few weeks earlier.
Form I-751 listed Alvarado-Arenas's "address"
as 2917 Davenport Avenue, Davenport, Iowa. The form also
provided separate boxes for Alvarado-Arenas to list a
"mailing address, " and the word "SAME"
was printed there. A question on the form asking whether
Alvarado-Arenas had lived at any other address since becoming
a permanent resident was answered in the negative.
Alvarado-Arenas's counsel signed the names of
Alvarado-Arenas and his wife at the bottom of the Form I-751,
attesting to the form's truthfulness under penalty of
perjury. Counsel also declared that he prepared the petition
at the request of his client, and that it was based on all
information of which counsel had knowledge.
Alvarado-Arenas nor his counsel appeared for the continued
removal hearing in August 2013. The immigration judge found
that Alvarado-Arenas abandoned his application for relief and
ordered him removed to Mexico in absentia under 8
U.S.C. § 1229a(b)(5)(A). On February 3, 2014,
Alvarado-Arenas moved to reopen the in absentia
removal proceedings under 8 U.S.C. § 1229a(b)(5)(C),
arguing that the immigration court did not have jurisdiction
to enter a removal order because he was outside the United
States during the removal proceedings. Alvarado-Arenas later
supplemented his motion with an affidavit from his wife
stating that he had traveled to Mexico in November 2009 for a
family medical emergency and remained there ever since.
immigration judge denied the motion to reopen, and the Board
affirmed. Reopening is permitted if the alien's failure
to appear was due to "exceptional circumstances, "
see 8 U.S.C. § 1229a(b)(5)(C)(i), but the Board
agreed with the immigration judge that Alvarado-Arenas failed
to establish such circumstances. The Board also rejected
Alvarado-Arenas's contention that he was not present in
the United States when the government filed the Notice to
Appear. The Board cited statements on the Form I-751 that
Alvarado-Arenas's address was in Davenport, Iowa, and
counsel's oral confirmation at the November 2012 hearing
that Alvarado-Arenas still lived in Davenport. The Board
found that the wife's "self-serving affidavit"
was insufficient to establish that Alvarado-Arenas was
outside the country when the removal proceedings began.
appeal to this court, Alvarado-Arenas argues that the Board
abused its discretion in refusing to reopen the removal
proceeding. By statute, an order removing an alien in
absentia for failure to appear may be rescinded only
upon a motion to reopen that shows either that (1) the
alien's failure to appear was because of exceptional
circumstances or (2) the alien did not receive proper notice
of the hearing or was in federal or state custody and his
failure to appear was through no fault of his own. 8 U.S.C.
§ 1229a(b)(5)(C). Exceptional circumstances "refers
to exceptional circumstances (such as battery or extreme
cruelty to the alien or any child or parent of the alien,
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." Id. § 1229a(e)(1).
brief on appeal, Alvarado-Arenas does not develop an argument
that his failure to appear was because of exceptional
circumstances within the meaning of the statute. He has never
disputed that he received proper notice of the removal
hearing and has never alleged that he was in federal or state
custody. The Board thus did not abuse its discretion in
concluding that Alvarado-Arenas failed to satisfy either of
the two statutory bases for rescission of the removal order.
does renew his contention that he was outside the United
States when the Department filed the Notice to Appear in his
removal proceeding. He argues that the immigration court
therefore lacked jurisdiction to order his removal.
Alvarado-Arenas does not explain, however, why his
whereabouts when the Notice was filed would authorize the
Board to reopen the removal proceedings and rescind the
removal order. As noted, the statute provides for rescission
of an in absentia removal order in only two
circumstances. Insofar as the immigration judge and the Board
considered whether to reopen the proceedings sua
sponte based on Alvarado-Arenas's claim that he was
in Mexico throughout the proceedings, see 8 C.F.R.
§§ 1003.23(b)(1), 1003.2(a), we lack jurisdiction
to review the agency's discretionary decision.
Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir.
2008) (en banc) (per curiam).
for the sake of analysis, however, that Alvarado-Arenas's
alleged absence from the country could be an
"exceptional circumstance" under §
1229a(b)(5)(C)(i), or that the agency otherwise had
reviewable discretion to reopen the proceedings on the
grounds alleged, we conclude that there was no abuse of
discretion. The Board reasonably concluded that
Alvarado-Arenas was in the United States when the Department
filed the Notice to Appear to initiate the removal
proceedings in August 2012. The Form I-751 filed by
Alvarado-Arenas's counsel in November 2012 said that it
was filed at the request of Alvarado-Arenas and listed his
"address" and "mailing address" in
Davenport, Iowa. The form also stated that Alvarado-Arenas
had not "resided" at any address other than the
Davenport address since he became a permanent resident. These
averments supported a finding that Alvarado-Arenas was
present in the United States when the removal proceedings
commenced. The Board also reasonably gave weight to the fact
that Alvarado-Arenas's counsel verified the accuracy of
the Davenport address at a hearing in November 2012 and made
no objection to the immigration court's jurisdiction at
that time. Alvarado-Arenas's wife had an obvious bias
that justified the Board's ...