Nistor Ursachi v. Immigration and Naturalization Service

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2419
N ISTOR U RSACHI ,
Petitioner,
v.
I MMIGRATION AND N ATURALIZATION S ERVICE ,
Respondent.
____________
On Petition for Review
From Board of Immigration Appeals
No. A71-471-622
____________
A RGUED A PRIL 9, 2002—D ECIDED J ULY 16, 2002
____________
Before F LAUM , Chief Judge, and C OFFEY and K ANNE ,
Circuit Judges.
K ANNE , Circuit Judge. Nistor Ursachi, a Romanian na-
tional, failed to appear at his deportation hearing. The im-
migration judge (“IJ”) at the hearing ordered in absentia
that Ursachi be deported to Romania under § 241(a)(1)(B)
of the Immigration and Nationality Act (“INA”) because
he remained in the United States longer than permitted.
Ursachi filed a motion to reopen his deportation proceed-
ing, alleging that exceptional circumstances beyond his
control prevented him from attending his deportation hear-
ing. The IJ denied Ursachi’s motion, finding that Ursachi

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2 No. 01-2419
failed to appear at his deportation hearing without good
cause, and the Board of Immigration Appeals (“BIA”) af-
firmed. We affirm.
I. Background
In 1997, the United States Immigration and Naturaliza-
tion Service Asylum Office denied Ursachi political asy-
lum. Ursachi subsequently filed applications for political
asylum and Suspension of Deportation. Ursachi was sched-
uled to appear before the IJ on April 12, 1999 for a merits
hearing. However, Ursachi failed to attend this hearing. In
light of Ursachi’s failure to attend, the IJ ordered him de-
ported. Ursachi then filed a timely motion to reopen his
deportation proceedings, alleging that exceptional circum-
stances beyond his control prevented him from attending
his deportation hearing.
In support of his motion to reopen the proceedings, Ur-
sachi submitted a personal affidavit and a handwritten note
from his doctor. Ursachi’s personal affidavit provided:
On April 12, 1999, I was very ill and I went to see my
doctor, Dr. Ioan Cheregi. He told me to stay home for
several days, so I went home on April 12, 1999, and I
did not appear before the Immigration Judge.
The note from Dr. Cheregi stated that “[Ursachi] came to
my office [illegible] flu symptoms and dizziness.” Despite
this evidence, the IJ denied Ursachi’s motion to reopen his
deportation proceeding, stating that “perfunctory state-
ments are insufficient evidence to demonstrate that Ur-
sachi’s illness was an ‘exceptional circumstance.’ ” Adopting
the reasoning of the IJ, the BIA affirmed.
On appeal, Ursachi argues (1) that the IJ erred in deny-
ing his motion to reopen, (2) that he was denied due process
of law because the BIA relied upon a new evidentiary stand-
ard without giving him notice of the new standard, and (3)

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No. 01-2419 3
ΠAlthough this section has been repealed, it still governs
Ursachi’s appeal as he was placed in deportation proceedings
prior to April 1, 1997.
that his failure to appear at his deportation hearing did not
preclude him from reopening his proceedings before the IJ
in order to pursue his political asylum application.
II. Analysis
Pursuant to § 242B(e)(1)Œ of the INA, Ursachi first ar-
gues that the IJ erred in denying his motion to reopen his
deportation proceeding because his failure to appear was
due to exceptional circumstances beyond his control. See 8
U.S.C. § 1252b(e)(1). We review the denial of a motion to
reopen a deportation order entered in absentia for an abuse
of discretion. See Nazarova v. INS, 171 F.3d 478, 482 (7th
Cir. 1999). Because the BIA adopted the reasoning of the IJ,
we will be reviewing the decision of the IJ. See Pop v. INS,
270 F.3d 527, 529 (7th Cir. 2001).
Under § 242B of the INA, prior to deportation proceed-
ings, an alien must receive written notice of the time, date,
and place of deportation proceedings; notification of the
right to be represented by an attorney; and notification of
the consequences of a failure to appear for reasons other
than the statutorily defined “exceptional circumstances.” 8
U.S.C. § 1252b(a)(2), (3); see also Nazarova, 171 F.3d at 482.
Exceptional circumstances are defined as circumstances
beyond the control of the alien “such as serious illness of
the alien or death of an immediate relative of the alien, but
not including less compelling circumstances.” 8 U.S.C.
§ 1252b(f)(2).
In In re J-P, Int. Dec. 3348 (BIA 1998), the BIA explained
that where an alien alleges illness in the context of a mo-

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4 No. 01-2419
tion to reopen an in absentia deportation order, the evi-
dence offered in support of such allegation should contain
“detail regarding the cause, severity, or treatment of the al-
leged illness.” In light of the applicable standard of review,
we simply are unable to conclude that the IJ abused its
discretion in denying Ursachi’s motion to reopen his in ab-
sentia deportation order. Neither Ursachi’s personal affi-
davit nor his doctor’s note provide any detail regarding the
cause or the severity of Ursachi’s illness. See id. Further,
while one could argue that Ursachi presented evidence that
he was to stay home for a couple days as treatment, the fact
that the IJ found this statement alone to be insufficient to
establish exceptional circumstances was not an abuse of
discretion.
Next, Ursachi contends that he was denied due process of
law because the BIA relied on In re J-P for considering evi-
dence bearing upon the question of exceptional circum-
stances without giving him notice of this allegedly “new”
standard. However, In re J-P was decided two years prior to
the BIA’s decision. See id. Therefore, Ursachi was clearly on
notice of the BIA’s evidentiary requirements with respect to
exceptional circumstances.
Finally, Ursachi urges us to find that even if his motion
to reopen his deportation proceeding is denied, he should be
allowed to move to reopen deportation proceedings in order
to request a decision on his application for political asylum.
This issue, however, is not within our jurisdiction to review.
Appellate jurisdiction to review deportation orders entered
in absentia is confined by statute “to the issues of the valid-
ity of the notice provided to the alien, to the reasons for the
alien’s not attending the proceeding, and to whether or not
clear, convincing, and unequivocal evidence of deportability
has been established.” Nazarova, 171 F.3d at 482 (quoting
8 U.S.C. § 1252b(c)(4)). Thus, we decline to review Ursachi’s
final argument on appeal.

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No. 01-2419 5
III. Conclusion
For the foregoing reasons, we A FFIRM .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-16-02

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