                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                  In the                              December 13, 2005
                         United States Court of Appeals                             Charles R. Fulbruge III
                                       for the Fifth Circuit                                Clerk
                                            _______________

                                              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,                        than four years later, he moved to reopen the
  Circuit Judges.                                      removal proceeding, but the immigration judge
                                                       (“IJ”) denied the motion, and the Board of
PER CURIAM:*                                           Immigration Appeals (“BIA”) affirmed. Chen
                                                       petitions for review. Finding no abuse of
   Shan Chen was ordered removed at a hear-            discretion, we deny the petition for review.
ing in absentia on August 27, 1999. More
                                                                              I.
                                                          Chen, a citizen of the People’s Republic of
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    China, was charged with entering the United
termined that this opinion should not be published     States without permission on May 24, 1999,
and is not precedent except under the limited cir-     and was ordered to appear at a removal hear-
cumstances set forth in 5TH CIR. R. 47.5.4.
ing on August 27, 1999. Because neither                  ing. The BIA affirmed without opinion.1
Chen nor his counsel appeared, the IJ con-
ducted the hearing in absentia. The IJ found                                    II.
that the Immigration and Naturalization Ser-                 We have jurisdiction to review the BIA’s
vice had presented sufficient evidence to estab-         order, because the Attorney General’s discre-
lish Chen’s removability and that Chen had               tion to reopen removal proceedings in circum-
abandoned any claims for relief by failing to            stances such as these is not specified under the
appear. The IJ therefore ordered Chen re-                subsection of title 8 that governs immigration
moved.                                                   proceedings. Absent such a statutory grant of
                                                         authority, the Attorney General’s discretionary
    Chen filed a motion to reopen his removal            decision does not fall within the jurisdiction-
proceedings on November 19, 2003, request-               stripping provisions of the Immigration Re-
ing that the IJ rescind the removal order.               form and Immigrant Responsibility Act of
Chen claimed he was unable to attend the                 1996. See Zhao v. Gonzales, 404 F.3d 295,
1999 hearing because of a gastric illness. He            302-03 (5th Cir. 2005).
further asserted that he had mailed motions to
reopen on September 13, 1999, and June 14,                  We review decisions of the BIA regarding
2001, but those motions were never delivered             motions to reopen for abuse of discretion. See
to the IJ. He stated that he had attached to the         id. at 304. Although we generally have au-
September 13 motion a letter from his physi-             thority to review only the order of the BIA,
cian verifying his illness.                              where, as in this case, the BIA summarily af-
                                                         firms the ruling of the IJ without opinion, we
    The IJ declined to rescind the removal or-           review the IJ’s decision for abuse of discre-
der, noting that a motion to reopen must be              tion. See Mikhael v. INS, 115 F.3d 299, 302
filed within 180 days and that an order will be          (5th Cir. 1997). An IJ does not abuse his dis-
rescinded only if the alien demonstrates that            cretion in denying a motion to reopen unless
exceptional circumstances prevented his ap-              his decision is “capricious, racially invidious,
pearance. See 8 C.F.R. § 1003.23(b)(4)(ii).              utterly without foundation in the evidence, or
The IJ found that Chen’s motion to reopen                otherwise so irrational that it is arbitrary rather
was untimely and that he had failed to establish         than the result of any perceptible rational ap-
the necessary exceptional circumstances. In              proach.” Zhao, 404 F.3d at 304.
particular, the IJ stated that Chen’s claim of
illness was unsubstantiated and that his failure                              III.
to contact his attorney or the IJ regarding his             Chen argues that the IJ “made a mistake” in
illness militated against a finding of exceptional
circumstances.
                                                            1
                                                               After filing his petition for review, Chen sent
   In his appeal to the BIA, Chen submitted as           a letter to this court submitting additional evidence
additional evidence a letter from his older              in support of his underlying request for asylum and
brother confirming that he was ill and could             requesting a remand to the BIA for consideration of
                                                         the evidence. Chen’s request for remand is al-
not walk steadily at the time of the 1999 hear-
                                                         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.

                                                     2
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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