     Case: 09-60910     Document: 00511250827          Page: 1    Date Filed: 10/01/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 1, 2010
                                     No. 09-60910
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ALMA DEYANIRA GUILLEN,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A096 785 211


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Alma Deyanira Guillen, a native and citizen of Mexico, petitions this court
for review of the Board of Immigration Appeals’ (BIA) decision dismissing her
appeal of the Immigration Judge’s (IJ) denial of the motion to reopen her in
absentia removal proceedings. Guillen does not dispute that she was removable
as charged, and she has abandoned any challenge to the BIA’s determination
that she received the required statutory notice. See Soadjede v. Ashcroft, 324
F.3d 830, 833 (5th Cir. 2003).

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-60910

      Instead, she contends that her attorney mistakenly informed her that the
hearing was scheduled for 1:30 p.m., rather than 9:00 a.m.           Because she
appeared at the time her attorney told her to appear, Guillen argues that her
late appearance should not have been considered a failure to appear.
Alternatively, Guillen argues that she demonstrated exceptional circumstances
for her failure to appear.
      The BIA determined that Guillen had not provided any details of the
circumstances surrounding her late arrival, including whether she spoke with
immigration court personnel, whether the IJ was still on the bench, or what, if
any, efforts were made to contact the IJ. Thus, the BIA concluded that Guillen
had failed to demonstrate that her late appearance should be excused.
      For the first time in her petition for review, Guillen contends that upon
her arrival at the courthouse, she informed immigration court personnel that she
had understood the IJ to say that the hearing was scheduled for 1:30 p.m, rather
than 9:00 a.m. An immigration court employee advised Guillen that the IJ was
still available and asked that she wait a moment. When the immigration court
employee returned, she advised Guillen to file a motion to reopen. Because
review is limited to the administrative record, this court may not consider facts
raised for the first time on appeal. Miranda-Lores v. INS, 17 F.3d 84, 85 (5th
Cir. 1994). Further, although Guillen arrived at the courthouse during business
hours and had diligently appeared at all prior hearings, she arrived four and
one-half hours late and waited 77 days to file a motion to reopen. Therefore, the
BIA did not abuse its discretion in treating Guillen’s late arrival as a failure to
appear. Cf. Alarcon-Chavez v. Gonzales, 403 F.3d 343, 345-46 (5th Cir. 2005)
(concluding that it was legal error, and therefore an abuse of discretion, to hold
that the petitioner’s 20-minute tardiness constituted a failure to appear where
he had been on time to all prior hearings, made every effort to get the IJ to
resume the hearing, and upon learning that the IJ steadfastly refused to conduct
the hearing, filed a motion to reopen five days later).

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                                No. 09-60910

      Likewise, the BIA did not abuse its discretion in concluding that Guillen
failed to demonstrate exceptional circumstances for her failure to appear.
Although Guillen contends that her attorney mistakenly informed her that the
hearing was scheduled for 1:30 p.m, counsel did not execute an affidavit in
support of Guillen’s motion to reopen and counsel’s statements in the motion and
subsequent briefs are not evidence. See INS v. Phinpathya, 464 U.S. 183, 188
n.6 (1984). Further, the record is silent as to whether or when counsel arrived
at the courthouse and what steps, if any, she took upon her arrival. While this
court has held that erroneous advice from counsel can constitute exceptional
circumstances warranting rescission of an in absentia removal order, Galvez-
Vergara v. Gonzales, 484 F.3d 798, 801-02 (5th Cir. 2007), Guillen neither
alleged ineffective assistance of counsel nor attempted to comply with the
requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
Therefore, she has not shown that the BIA’s decision was capricious, racially
invidious, without foundation in the evidence, or otherwise so irrational that it
was arbitrary. See Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006).
      Finally, Guillen contends that the denial of her motion to reopen was
unconscionable and a violation of her due process rights because she is eligible
for cancellation of removal. As previously stated, Guillen has abandoned any
challenge to the BIA’s determination that she received the required statutory
notice. Further, the denial of a motion to reopen cannot violate an alien’s due
process rights because the relief sought in such a motion is discretionary in
nature. Gomez-Palacios v. Holder, 560 F.3d 354, 361 n.2 (5th Cir. 2009); Assaad
v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). Therefore, Guillen’s due process
claim is without merit.
      Accordingly, Guillen’s petition for review is DENIED.




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