                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                 FILED
                                                     U.S. COURT OF APPEALS
                      ________________________         ELEVENTH CIRCUIT
                                                            May 3, 2005
                                                        THOMAS K. KAHN
                            No. 04-13523                     CLERK
                        Non-Argument Calendar
                      ________________________

                         BIA No. A96-021-598

NOLOKMRIZAJ MRIZAJ,
a.k.a. Ndoke Mrizaj,

                                                           Petitioner,

     versus

U.S. ATTORNEY GENERAL,

                                                           Respondent.

                     _________________________

                   Petition for Review of a Decision of
                    the Board of Immigration Appeals
                     _________________________

                             (May 3, 2005)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Ndoke Mrizaj petitions for review of the Board of Immigration Appeals’

(BIA’s) order denying his motion to remand and affirming the Immigration

Judge’s (IJ’s) denial of his second motion to reopen his removal proceedings. We

deny the petition.

                               I. BACKGROUND

      In February 2003, Mrizaj, a citizen of Albania, was personally served with a

Notice to Appear (NTA), and informed in his native language of the consequences

of failure to appear at his removal hearing. In March 2003, the immigration court

sent Mrizaj a hearing notice, which indicated a master hearing had been set for

July 3, 2003, in Miami, Florida. When Mrizaj failed to appear for his removal

hearing on July 3, 2003, the IJ ordered him removed in absentia. Mrizaj filed a

motion to reopen the in absentia removal order, arguing his absence had been the

result of an “unexpected illness” consisting of a headache, polyuria, and

abdominal pain, but he failed to provide any supporting documentation, and his

motion was denied. Mrizaj filed a second motion to reopen the in absentia

removal order, which was identical to his first motion, but provided

documentation of his illness. The IJ denied Mrizaj’s second motion to reopen, and

Mrizaj filed an appeal with the BIA, as well as a motion to remand for




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consideration of new evidence. The BIA dismissed Mrizaj’s appeal and denied his

motion to remand.

                                II. DISCUSSION

      We review the BIA’s denial of a motion to reopen for an abuse of

discretion. Lonyem v. U.S. Attorney Gen., 352 F.3d 1338, 1340 (11th Cir. 2003).

Judicial review is limited to determining “whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or

capricious.” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (internal

quotations and citation omitted). “The BIA abuses its discretion when its decision

provides no rational explanation, inexplicably departs from established policies, is

devoid of any reasoning, or contains only summary or conclusory statements.”

Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003) (internal quotations

omitted).

      Any alien who, after written notice has been provided, does not attend a

proceeding shall be ordered removed in absentia if the INS establishes by “clear,

unequivocal, and convincing evidence” it gave written notice and the alien is

removable. 8 U.S.C. § 1229a(b)(5)(A). An in absentia removal order may be

rescinded if, within 180 days of the order, the alien moves to reopen,

demonstrating the failure to appear was because of exceptional circumstances. 8

U.S.C. § 1229a(b)(5)(C). Exceptional circumstances include circumstances

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beyond the control of the alien, such as “serious illness of the alien,” but do not

include “less compelling circumstances.” 8 U.S.C. § 1229a(e)(1). We have

noted:

         The phrase “serious illness” is not defined in the statute or its
         implementing regulations. The BIA has suggested several ways in
         which such an illness may be demonstrated. “A medical professional
         . . . comment[], in detail, on the severity of the illness of the alleged.
         In the alternative, [such a] claim may [be] substantiated through
         detailed affidavits from the respondent, roommates, friends, and
         co-workers, attesting to the extent of his disabilities and the remedies
         used.”

Lonyem, 352 F.3d at 1341 (citing In re J-P-, 22 I & N Dec. 33 (1998)) (alteration

in original).

         In Lonyem, an alien, who failed to appear for his removal hearing and was

ordered removed in absentia, filed a motion to reopen based upon his having

contracted malaria the day before the hearing. Id. at 1339. We found no abuse of

discretion where the IJ concluded the evidence provided by Lonyem was

insufficient to support his claim he was “too sick to attend his removal hearing.”

Id. at 1341. We also noted Lonyem’s failure to make any effort to notify the

immigration court regarding his absence was “a factor which tend[ed] to

undermine [his] claim of exceptional circumstances,” and was “particularly

noteworthy given the fact that [he] tried, albeit unsuccessfully, to contact his

attorney.” Id.


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      Although a party may, generally, file only one motion to reopen

proceedings, 8 C.F.R. § 1003.23(b)(1), this numerical limitation does not apply to

motions to reopen based upon exceptional circumstances, 8 C.F.R.

§ 1003.23(b)(4)(iii)(A)(1) and (D). Motions to reopen are disfavored, especially

in a removal proceeding, “where, as a general matter, every delay works to the

advantage of the deportable alien who wishes merely to remain in the United

States.” INS v. Doherty, 112 S. Ct. 719, 724–25 (1992).

      “[I]f a motion to remand seeks to introduce evidence that has not previously

been presented, it is generally treated as a motion to reopen under 8 C.F.R.

§ 3.2(c) [now 8 C.F.R. § 1003.2(c)].” Najjar v. Ashcroft, 257 F.3d 1262, 1301

(11th Cir. 2001). “Where the motion is treated as one to reopen, the pleading

should be subjected to the substantive requirements for such a motion.” Id.

      Mrizaj does not dispute he was served with a NTA. According to the NTA,

Mrizaj was provided with oral notice in Albanian of the consequences of failure to

appear for his removal hearing. Mrizaj signed the NTA, indicating he had been

served in person and given the oral notice. Because Mrizaj failed to attend his

removal hearing after receiving appropriate notice, the IJ did not err in removing

him in absentia. See 8 U.S.C. § 1229a(b)(5)(A).

      The evidence offered by Mrizaj in support of his second motion to reopen

and his motion to remand did not establish exceptional circumstances for his

                                         5
failure to appear at his removal hearing. Although Mrizaj claimed in his second

affidavit he had a history of hospitalizations and complications resulting from his

being severely burned as a child, he failed to submit any evidence regarding

(1) his previous hospitalizations and complications, and (2) any connection

between the illness he suffered on July 2, 2003, and his having been burned.

More importantly, Mrizaj failed to allege his present illness was in any way related

to his previous illnesses. According to the document provided, Mrizaj was

diagnosed only with a headache and polyuria, and told to “drink plenty of fluids”

and take “NSAIDs for pain.” Although Mrizaj was in an emergency room in New

York from the evening before his removal hearing until the morning of that

hearing, there is nothing in the evidence submitted by Mrizaj to suggest his illness

was “serious.”

      Moreover, although Mrizaj claimed he informed his former attorney he

would be unable to attend the July 3, 2003, hearing, Mrizaj provided no evidence

of this, either in the form of an affidavit from the attorney or otherwise.

Furthermore, as in Lonyem, Mrizaj’s failure to make any effort to notify the

immigration court regarding his absence undermines his claim of exceptional

circumstances, especially in light of his statement he contacted his former

attorney. See Lonyem, 352 F.3d at 1341. The BIA did not err in finding Mrizaj



                                           6
failed to provide sufficient evidence to establish exceptional circumstances for his

failure to appear at his removal hearing, as there was nothing to suggest that

Mrizaj was “too sick to attend his removal hearing.” See id. Accordingly, the BIA

did not abuse its discretion, and we deny Mrizaj’s petition.

      PETITION DENIED.




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