                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              August 8, 2006
                            No. 05-16081                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                          BIA No. A72-452-449

ABOUBAKAR YARI,


                                                                    Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                      ________________________

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

                            (August 8, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      Petitioner Aboubakar Yari, proceeding pro se, petitions for review of the

Board of Immigration Appeals’s (“BIA”) in absentia order adopting and affirming

the Immigration Judge’s (“IJ”) orders removing him from the country and

subsequently denying his motion to reopen. Yari’s motion to reopen was denied

by the IJ as being untimely and for failing to show exceptional circumstances

justifying Yari’s failure to attend his removal hearing.

                                           I.

      When the BIA issues a decision with an opinion, we review that decision,

except to the extent that the BIA expressly adopts the IJ’s opinion. Reyes-Sanchez

v. United States Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004). Here, the BIA

expressly adopted the IJ’s opinion, and made additional findings that Yari’s failure

to appear at his removal hearing was the result of a scheduling error on his part,

and that Yari had failed to present a proper claim of ineffective assistance of

counsel.

      Yari argues that his original removal order was defective because it was

based solely on information provided by his spouse, who had subjected him to

extreme cruelty, in violation of 8 U.S.C. § 1367(a)(1). Under 8 U. S.C. § 1367,

the government may not make an adverse deportability determination solely on the

basis of information furnished solely by a spouse who has subjected the alien to

extreme cruelty. 8 U.S.C. § 1367(a)(1).
                                           2
      The record here demonstrates that the IJ and the BIA did not rely on

information provided by Yari’s spouse in determining his removability. Yari was

removed on the basis of his violation of the terms of his student visa. His wife’s

withdrawal of her petition for adjustment of status on his behalf merely terminated

a procedural stay that had prevented him from being removed on a separate

ground. Therefore, we conclude that 8 U.S.C. § 1367(a)(1) was not violated.

                                          II.

      Yari further argues that his motion to reopen should have been granted

because his failure to attend his removal hearing was due to exceptional

circumstances. He argues that his removal hearing was scheduled at the same time

as a state court hearing, and his attendance at the state court hearing was necessary

to protect his child from the extreme cruelty from his wife’s family.

      We review the denial of a motion to reopen for an abuse of discretion.

Lonyem v. United States Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003).

“[A]dministrative findings of fact are conclusive unless a reasonable factfinder

would be compelled to conclude to the contrary.” Id. “An in absentia removal

order may be rescinded if the alien demonstrates that the failure to appear was

because of exceptional circumstances beyond the control of the alien . . . . ” Id. at

1340-41.



                                           3
      In his motion to reopen, Yari asserted that his failure to attend his removal

hearing was due to a conflict with a state family court hearing. However, in a prior

motion, Yari had ascribed his failure to attend the hearing to a record-keeping error

on his part. Confronted with these two conflicting accounts, the BIA made a

factual finding that Yari’s failure to attend had been the result of his own error.

The evidence indicates that Yari did have a state court hearing at the same time as

his removal hearing. However, it also shows that Yari was at neither of these

hearings at the appointed time. Therefore, it cannot be said that the evidence

would compel a finding contrary to the BIA’s conclusion that Yari failed to appear

at his removal hearing due to his own record-keeping error.

      Moreover, an exceptional circumstance must be a situation beyond the

alien’s control. Yari’s own scheduling error was within his control. We conclude

that it was not an abuse of discretion for the BIA to determine that this was not an

exceptional circumstance justifying that absence.

                                           III.

      Yari also argues that he was denied due process by the ineffective assistance

of his counsel in failing to timely file a motion to reopen in the correct office.

      A petitioner claiming ineffective assistance of counsel in a motion to reopen

must show prejudice and substantial compliance with the procedural requirements

set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Dakane v. United
                                            4
States Att’y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005). Under Lozada, a motion

to reopen based upon a claim of ineffective assistance of counsel requires (1) that

the motion be supported by an affidavit setting forth in detail the agreement that

was entered into with counsel with respect to the actions to be taken and what

representations counsel did or did not make to the respondent in this regard, (2)

that counsel be informed of the allegations leveled against him and be given an

opportunity to respond, and (3) that the motion reflect whether a complaint has

been filed with disciplinary authorities with respect to any violation of counsel's

responsibilities, and if not, why not. Lozada, 19 I. & N. Dec. at 639.

      The record here gives no indication that Yari informed his attorney that he

was making allegations of wrongdoing against her, nor does it contain any

explanation for why he had not filed a grievance against her. Therefore, the BIA

did not abuse its discretion in determining that Yari had failed to comply with the

procedural requirements of Lozada.

                                          IV.

      Yari additionally argues that his motion to reopen should not have been

considered untimely because he qualifies for the one-year time limit available to

aliens who have been subject to abuse by their American citizen spouses, pursuant

to the INA § 240(c)(7)(C)(iv), 8 U.S.C. § 1229a(c)(7)(C)(iv) (2004).



                                           5
      When an order of removal is issued in absentia, there is generally a 180-day

time limit for filing a motion to reopen if the alien can demonstrate exceptional

circumstances justifying the alien’s failure to appear at the original removal

hearing. INA § 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i). However, the

version of 8 U.S.C. § 1229a(c)(7)(C)(iv) in effect at the time of Yari’s immigration

proceedings contained an extended one-year time limit for motions to reopen for

aliens who have been abused by their citizen spouses. Section 1229a(c)(7)(C)(iv)

provided that “[t]he deadline specified in subsection (b)(5)(C) of this section for

filing a motion to reopen does not apply” where (1) the basis for the motion to

reopen was to apply for, inter alia, relief on the basis of a self-petition of an alien

who has been subjected to abuse or extreme cruelty by a citizen-spouse or whose

child has been subjected to such; (2) the motion was accompanied by a

cancellation of removal application or a self-petition which has been filed or will

be filed upon the grant of the motion to reopen; and (3) the motion was made

within one year of the removal order. 8 U.S.C. § 1229a(c)(7)(C)(iv).

      Yari’s motion to reopen comported with the requirements of

§ 1229a(c)(7)(C)(iv). His motion alleged extreme cruelty by his American citizen

spouse, was accompanied by a self-petition to be filed if the motion was granted,

and was filed within one year of the order of removal. Therefore, the IJ erred in

determining that Yari’s motion to reopen was untimely filed. However, this does
                                            6
not mean that the IJ abused his discretion in denying the motion. Section

1229a(b)(5)(C)(i) requires both a timely filing and a showing of exceptional

circumstances justifying the failure to appear. The IJ found that Yari’s motion was

both untimely and failed to show exceptional circumstances. Thus, even with the

one-year time limit, Yari, as discussed above, failed to show exceptional

circumstances, and was not be entitled to reopen his case.

                                          V.

      Yari argues that the BIA acted unconstitutionally in “simply adopting” the

IJ’s decision, without considering his appeal on the merits, because the IJ failed to

adjudicate his ineffective assistance of counsel claim and failed to consider his

self-petition as an abused alien spouse of an American citizen.

      Even a summary affirmance, by a single member of the BIA, without

opinion, of an IJ’s decision is not a due process violation. Mendoza v. United

States Att’y Gen., 327 F.3d 1283, 1288-89 (11th Cir. 2003).

      Here, the record demonstrates that the BIA panel did issue an opinion and

specifically noted that its adoption and affirmance of the IJ’s opinion signified that

“the Board’s conclusions upon review of the record coincide with those the

Immigration Judge articulated in his or her decision.” Contrary to Yari’s assertion,

the BIA did review the merits of his case, including the two claims he singles out

in his appeal. The BIA not only adopted and affirmed the IJ’s decision, but made
                                           7
additional findings as to Yari’s ineffective assistance of counsel claim. As to

Yari’s abused spouse claim, the IJ found, and the BIA affirmed, that Yari had

failed to show exceptional circumstances justifying his failure to appear, and as

discussed above, this failure was fatal to Yari’s motion to reopen irrespective of the

applicability of § 1229a(c)(7)(C)(iv). No due process violation occurred.

                                         VI.

      Finally, Yari argues that his removal on August 11, 2005, was invalid,

because the Department of Homeland Security (“DHS”) had made a preliminary

determination that he had established a prima facie case for a self-petition under

the Violence Against Women Act. Yari contends that this preliminary

determination, which granted him permission to remain in the country, controlled

over the order of removal.

      Assuming that Yari was provided with notice of this preliminary

determination by a field office of DHS, such a determination does not operate as an

invalidation or stay of a prior, final order of removal. The existing order of

removal remained valid, and its execution was not improper.

      For the above-stated reasons, we deny the petition for review.

      PETITION DENIED.




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