                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3552
                        ___________________________

                             Vincent Kigada Angaya

                             lllllllllllllllllllllPetitioner

                                           v.

         Jefferson B. Sessions, III, Attorney General of the United States

                            lllllllllllllllllllllRespondent
                                    ____________

                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                                  ____________

                             Submitted: June 8, 2017
                               Filed: July 21, 2017
                                  [Unpublished]
                                 ____________

Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
                          ____________

PER CURIAM.

      Vincent Angaya, a native and citizen of Kenya, was ordered removed in
absentia after he failed to appear at a removal hearing in immigration court. He
subsequently filed a motion to reopen his removal proceedings that was denied by an
immigration judge (IJ). The Board of Immigration Appeals (BIA) dismissed
Angaya's appeal. Angaya then filed a petition for review which we now deny.
                                          I.

       Vincent Angaya was placed in removal proceedings by the Department of
Homeland Security (DHS) in 2010. Angaya conceded his removability but filed an
application seeking asylum, among other things. In May 2013 Angaya and his then
attorney appeared via telephone before an IJ. During that hearing the IJ informed
Angaya that he would have an individual hearing in September 2014. At some point
after this telephonic hearing Angaya moved and failed to notify either his counsel or
the immigration court of his change in address. His counsel eventually asked to
withdraw from Angaya's case, stating that Angaya was uncooperative and had failed
adequately to communicate with him. Angaya's counsel also reported that he had
informed Angaya of his individual hearing "on several occasions via telephone,
Certified Mail/Return Receipt Requested and via E-mail." The IJ granted Angaya's
counsel's motion to withdraw in April 2014.

      Angaya failed to appear at his September 2014 hearing and a removal order
was entered in absentia. He subsequently obtained new counsel and filed a timely
motion to reopen in which he argued that exceptional circumstances prevented his
appearance at the hearing. Angaya's motion to reopen was denied by the IJ and his
appeal was dismissed by the BIA. Angaya petitions for review of the BIA's decision.

                                          II.

       We review the denial of a motion to reopen for abuse of discretion, giving de
novo consideration to questions of law. Diaz v. Lynch, 824 F.3d 758, 760 (8th Cir.
2016) (per curiam). "An abuse of discretion occurs when the BIA's decision is
without rational explanation, departs from established policies, invidiously
discriminates against a particular race or group, or where the agency fails to consider
all factors presented by the alien or distorts important aspects of the claim." Haider
v. Gonzales, 438 F.3d 902, 906 (8th Cir. 2006) (internal quotations and citation

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omitted). In cases like this one where the BIA "essentially adopted the IJ's opinion
while adding some of its own reasoning, we review both decisions." Krasnopivtsev
v. Ashcroft, 382 F.3d 832, 837 (8th Cir. 2004).

       Under the Immigration and Nationality Act (INA), individuals who have been
ordered removed in absentia may file a motion to reopen their removal proceedings.
8 U.S.C. § 1229a(b)(5)(C). The removal order may only be rescinded, however, if the
petitioner demonstrates either (1) "that the failure to appear was because of
exceptional circumstances," or (2) that the petitioner received no notice of the
removal proceedings. Id. The INA defines "exceptional circumstances" as
circumstances "beyond the control of the alien," such as "serious illness of the alien,
or serious illness or death of the spouse, child, or parent of the alien." Id.
§ 1229a(e)(1).

       Angaya concedes that he received notice of the September 2014 hearing which
means that his sole argument is that the BIA erred by concluding that his failure to
appear at his removal hearing was not excused by exceptional circumstances.
Angaya's argument in this regard has two parts. First, he contends that the
government failed to argue that exceptional circumstances were lacking and that the
IJ and BIA should thus have deemed this argument waived. Angaya argues that the
BIA's decision nonetheless to assess whether he had sufficiently proven exceptional
circumstances therefore violated his due process rights. Second, Angaya argues that
the BIA erred by concluding that his failure to appear at his September 2014 hearing
was not excused by exceptional circumstances.

      Neither of Angaya's arguments has merit. With respect to Angaya's first
argument, the government's purported failure to argue that exceptional circumstances
were lacking does not mean that the BIA abused its discretion by denying Angaya's
motion to reopen on that ground. The INA is clear that the burden of demonstrating
exceptional circumstances rests with the petitioner. See 8 U.S.C. § 1229a(b)(5)(C).

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The government's failure to argue a lack of exceptional circumstances thus did not
require the BIA to conclude that Angaya had carried his burden of demonstrating
exceptional circumstances. Cf. United States v. Ellis, 815 F.3d 419, 421 (8th Cir.
2016) (noting that on a question of law even a "government[al] concession is not
conclusive"). This is especially true because the government did not concede that
Angaya had demonstrated exceptional circumstances, but merely neglected to present
a full argument about why Angaya's circumstances were not exceptional before the
immigration court. The BIA therefore did not violate Angaya's due process rights
when it considered whether Angaya had demonstrated that exceptional circumstances
should excuse his failure to appear at his 2014 removal hearing. See Lopez v.
Heinauer, 332 F.3d 507, 512–13 (8th Cir. 2003) (reciting due process standard).

       We also reject Angaya's contention that the BIA erred by concluding that he
had failed to demonstrate that exceptional circumstances kept him from attending his
removal hearing. Angaya suggests that his counsel's decision to withdraw and to
send the hearing notice to his prior address are "exceptional circumstances" that
necessitate the reopening of his case. We disagree. We have previously noted that
"[f]ailure to receive actual notice of [a removal] hearing is not an exceptional
circumstance when . . . the only reason actual notice was not received was the alien's
failure to update his address with his counsel, the immigration court, or DHS."
Kasyupa v. Keisler, 252 F. App'x 106, 108 (8th Cir. 2007) (per curiam). Moreover,
Angaya's counsel's withdrawal and his subsequent sending of the hearing notice to
Angaya's previous address resulted from the fact that Angaya was uncooperative and
uncommunicative over a period of months. Angaya's failure to communicate with his
counsel and the immigration court is not a circumstance "beyond the control of the
alien," and therefore is not exceptional within the meaning of the INA. See 8 U.S.C.
§ 1229a(e)(1). For these reasons, the BIA did not abuse its discretion when it
determined that Angaya had not demonstrated that his absence from his September
2014 removal proceedings was excused by exceptional circumstances.



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                            III.

Accordingly, we deny the petition for review.
               ______________________________




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