Escobar-Ortiz, et al v. INS

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60586
Summary Calendar
JOSE MANUEL ESCOBAR-ORTIZ,
Petitioner,
versus
JANET RENO, United States Attorney General,
Respondent.
_____________________________________
On Petition for Review of an Order of
the Board of Immigration Appeals
BIA No. A42 224 667
_____________________________________
May 18, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Jose Manuel Escobar-Ortiz seeks to appeal the Board of
Immigration Appeals’ dismissal of his appeal from the immigration
judge’s denial of his motion to reopen deportation proceedings.
On September 5, 1997, Escobar was ordered deported following an
in absentia deportation proceeding. Escobar’s subsequent motion
to reopen his deportation proceedings was denied and the Board of
Immigration Appeals (BIA) dismissed his appeal on July 25, 2000.
This court’s jurisdiction to review the BIA’s decision is
based on § 106(a) of the Immigration and Nationality Act (INA),

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No. 00-60586
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** The IIRIRA repealed INA § 106 and replaced it with a new
judicial review provision which has been codified at INA § 242,
8 U.S.C. § 1252 (Supp. II 1997). See IIRIRA §§ 306(a) and (b).
These amendments do not apply to Escobar’s case because the INS
commenced deportation proceedings against him prior to IIRIRA’s
April 1, 1997, effective date, which means that this case is
governed by the IIRIRA’s transition rules. The transition rules
apply to final orders entered on or after October 31, 1996, in
cases commenced before April 1, 1997. IIRIRA § 309.
8 U.S.C. § 1105a(a)(1994), as amended by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.
No. 104-208, 110 Stat. 3546 (Sept. 30, 1996). That section
confers exclusive jurisdiction on the courts of appeals to review
final orders of deportation.** Because this case was commenced
before April 1, 1997, and the order of deportation became final
after October 31, 1996, the IIRIRA’s transition rules apply. See
IIRIRA § 309.
Under the rules applicable to cases commenced prior to
September 30, 1996, the effective date of the IIRIRA, in absentia
deportation orders could be rescinded only if the alien showed
exceptional circumstances for his failure to appear or showed
that he did not receive notice of the hearing. 8 U.S.C.
§ 1252b(c)(3)(repealed Sept. 30, 1996). Escobar does not contend
that he did not receive notice of the hearing. He contends that
exceptional circumstances prevented his appearance. Escobar has
failed to demonstrate “exceptional circumstances.” The BIA did
not abuse its discretion in dismissing his appeal of the
Immigration Judge’s refusal to rescind the in absentia
deportation order. See De Morales v. INS, 116 F.3d 145, 147 (5th
Cir. 1997)(citing Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th
Cir. 1996)). Escobar’s petition for review is DENIED.

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