Chen v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
December 13, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-60826
Summary Calendar
_______________
SHAN JIAN CHEN,
Petitioner,
VERSUS
ALBERTO R. GONZALES,
U.S. ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
m A76 505 329
______________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
PER CURIAM:*
Shan Chen was ordered removed at a hear-
ing in absentia on August 27, 1999. More
than four years later, he moved to reopen the
removal proceeding, but the immigration judge
(“IJ”) denied the motion, and the Board of
Immigration Appeals (“BIA”) affirmed. Chen
petitions for review. Finding no abuse of
discretion, we deny the petition for review.
I.
Chen, a citizen of the People’s Republic of
China, was charged with entering the United
States without permission on May 24, 1999,
and was ordered to appear at a removal hear-
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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ing on August 27, 1999. Because neither
Chen nor his counsel appeared, the IJ con-
ducted the hearing in absentia. The IJ found
that the Immigration and Naturalization Ser-
vice had presented sufficient evidence to estab-
lish Chen’s removability and that Chen had
abandoned any claims for relief by failing to
appear. The IJ therefore ordered Chen re-
moved.
Chen filed a motion to reopen his removal
proceedings on November 19, 2003, request-
ing that the IJ rescind the removal order.
Chen claimed he was unable to attend the
1999 hearing because of a gastric illness. He
further asserted that he had mailed motions to
reopen on September 13, 1999, and June 14,
2001, but those motions were never delivered
to the IJ. He stated that he had attached to the
September 13 motion a letter from his physi-
cian verifying his illness.
The IJ declined to rescind the removal or-
der, noting that a motion to reopen must be
filed within 180 days and that an order will be
rescinded only if the alien demonstrates that
exceptional circumstances prevented his ap-
pearance. See 8 C.F.R. § 1003.23(b)(4)(ii).
The IJ found that Chen’s motion to reopen
was untimely and that he had failed to establish
the necessary exceptional circumstances. In
particular, the IJ stated that Chen’s claim of
illness was unsubstantiated and that his failure
to contact his attorney or the IJ regarding his
illness militated against a finding of exceptional
circumstances.
In his appeal to the BIA, Chen submitted as
additional evidence a letter from his older
brother confirming that he was ill and could
not walk steadily at the time of the 1999 hear-
ing. The BIA affirmed without opinion.1
II.
We have jurisdiction to review the BIA’s
order, because the Attorney General’s discre-
tion to reopen removal proceedings in circum-
stances such as these is not specified under the
subsection of title 8 that governs immigration
proceedings. Absent such a statutory grant of
authority, the Attorney General’s discretionary
decision does not fall within the jurisdiction-
stripping provisions of the Immigration Re-
form and Immigrant Responsibility Act of
1996. See Zhao v. Gonzales, 404 F.3d 295,
302-03 (5th Cir. 2005).
We review decisions of the BIA regarding
motions to reopen for abuse of discretion. See
id. at 304. Although we generally have au-
thority to review only the order of the BIA,
where, as in this case, the BIA summarily af-
firms the ruling of the IJ without opinion, we
review the IJ’s decision for abuse of discre-
tion. See Mikhael v. INS, 115 F.3d 299, 302
(5th Cir. 1997). An IJ does not abuse his dis-
cretion in denying a motion to reopen unless
his decision is “capricious, racially invidious,
utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational ap-
proach.” Zhao, 404 F.3d at 304.
III.
Chen argues that the IJ “made a mistake” in
1 After filing his petition for review, Chen sent
a letter to this court submitting additional evidence
in support of his underlying request for asylum and
requesting a remand to the BIA for consideration of
the evidence. Chen’s request for remand is al-
ready a part of his petition for review. Because his
asylum claim is not before us, we do not consider
the additional evidence, and we deny the motion for
remand.

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asserting that his claim of illness was unsub-
stantiated and thereby finding no exceptional
circumstances warranting recision of the re-
moval order; Chen contends the IJ failed to
take account of the letter from Chen’s physi-
cian, which was part of the record. Even if
that failure would otherwise constitute an
abuse of discretion, however, Chen cannot
prevail because, as the IJ held, his motion to
reopen was untimely.
The filing of a motion to reopen within 180
days of a removal order is a condition prece-
dent to considering whether there are excep-
tional circumstances that justify recision. See
8 C.F.R. § 1003.23(b)(4)(ii). Once the IJ held
that Chen’s motion, filed more than four years
after the 1999 removal order, was untimely,
his discussion of the existence vel non of ex-
ceptional circumstances was unnecessary. Any
error he may have committed on that score is
therefore harmless. Accordingly, the denial of
the motion to reopen was not an abuse of
discretion, and the petition for review is DE-
NIED.

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