                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JUAN ANTONIO PEREZ,                   
                        Petitioner,        No. 04-73029
               v.
                                           Agency No.
                                           A95-302-681
MICHAEL B. MUKASEY, Attorney
General,                                     OPINION
                    Respondent.
                                      
        On Petition for Review of an Order of the
             Board of Immigration Appeals

               Argued and Submitted
        November 6, 2007—Pasadena, California

                 Filed February 14, 2008

     Before: Betty B. Fletcher, Stephen Reinhardt, and
            Pamela Ann Rymer, Circuit Judges.

               Opinion by Judge Reinhardt;
                Dissent by Judge Rymer




                           1357
                      PEREZ v. MUKASEY                   1359


                         COUNSEL

Evan L. Murri, Esq., Law Offices of Evan L. Murri, San
Gabriel, California, for the petitioner.

Peter D. Keisler, Esq., Michelle Gordon Latour, Esq., P.
Michael Truman, Esq., Office of Immigration Litigation,
Civil Division, United States Department of Justice, Washing-
ton, D.C., for the respondent.


                         OPINION

REINHARDT, Circuit Judge:

   On March 12, 2003, Petitioner Juan Antonio Perez was
ordered removed in absentia. The immigration judge (“IJ”)
denied his motion to reopen the immigration proceedings, a
decision that was summarily affirmed by the Board of Immi-
gration Appeals (“BIA”). Perez argues on appeal that the
agency erred in entering an in absentia removal order against
him—and then denying his motion to reopen for lack of
exceptional circumstances—because he did not fail to appear
at his removal hearing. Although Perez was late to the hearing
1360                       PEREZ v. MUKASEY
due to his car’s mechanical failure, he arrived while the IJ was
still in the courtroom. We agree that under these circum-
stances, the agency erred in finding that Perez failed to
appear. We have jurisdiction pursuant to 8 U.S.C. § 1252 and
grant the petition for review.

           I.   Factual and Procedural Background

   Perez, a thirty-year-old native and citizen of Mexico,
entered the United States without inspection on June 12,
2000. He filed an application for asylum and withholding of
removal on May 13, 2002. On July 1, 2002, the former Immi-
gration and Naturalization Service (“INS”) initiated removal
proceedings against him.1 Perez was personally served with
notice that he was to appear for a removal hearing scheduled
for December 4, 2002 at 9:00 AM. The notice contained a
warning that failure to appear at the hearing, absent “excep-
tional circumstances[,]” could result in a removal order being
entered in absentia. He appeared promptly at his scheduled
hearing. At that time, Perez was served with notice of his next
scheduled hearing, set for March 12, 2003 at 9:00 AM. This
notice again contained a warning that failure to appear, absent
“exceptional circumstances[,]” could result in a removal order
being entered in absentia.

   On the morning of March 12, 2003, Perez was making his
way to the courthouse when his car overheated in the middle
of rush hour traffic. He pulled the car off of the freeway and
waited for it to cool. When he restarted it and tried to drive
on the surface streets, the car overheated again. He left his car
and found a bus that would get him to the courthouse. As a
result of his car’s mechanical failure, Perez arrived at the
courthouse approximately two hours after his scheduled hear-
ing time.
  1
    On March 1, 2003, the INS ceased to exist and its functions were trans-
ferred to the Department of Homeland Security. See Homeland Security
Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135.
                        PEREZ v. MUKASEY                   1361
   When Perez entered the courtroom, around 11:00 AM, the
IJ was still on the bench. Perez approached the IJ’s assistant
and handed her his notice of the removal hearing. At that
moment, the IJ stood and left the courtroom. The assistant
informed Perez that “[I]t is too late. The Judge is done for the
day.” The IJ issued a decision that same day ordering Perez
removed in absentia.

   Perez, proceeding pro se, filed a timely motion to reopen.
The IJ denied the motion reasoning that Perez “failed to show
that his failure to appear was due to exceptional circum-
stances” as required by 8 U.S.C. § 1229a(b)(5)(C). The BIA
summarily affirmed the IJ’s decision. Perez, now represented
by counsel, seeks review of the BIA’s adverse decision.

                  II.   Standard of Review

   Where, as here, the BIA uses its summary affirmance pro-
cedure, “the IJ’s decision becomes the BIA’s decision and we
evaluate the IJ’s decision as we would that of the Board.”
Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004) (internal
citation and quotation marks omitted). Although the BIA’s
summary affirmance “ ‘only means that the BIA deemed any
errors by the IJ to be harmless,’ as a practical matter, we may
review only the reasoning presented by the IJ.” Reyes-Reyes
v. Ashcroft, 384 F.3d 782, 786 (9th Cir. 2004) (internal cita-
tions omitted).

   We review the denial of a motion to reopen for abuse of
discretion. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098
(9th Cir. 2005); Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.
2000). The agency’s decision is only reversed if it is “ ‘arbi-
trary, irrational, or contrary to law.’ ” Singh v. INS, 295 F.3d
1037, 1039 (9th Cir. 2002) (quoting Ahwazi v. INS, 751 F.2d
1120, 1122 (9th Cir. 1985)).

                        III.   Discussion

   [1] The Immigration and Nationality Act (“INA”) provides
that an alien who fails to appear at an immigration proceeding
1362                       PEREZ v. MUKASEY
“shall be ordered removed in absentia if the Service estab-
lishes by clear, unequivocal, and convincing evidence that . . .
written notice was . . . provided and that the alien is remov-
able . . . .” 8 U.S.C. § 1229a(b)(5)(A). An in absentia removal
order “may be rescinded only upon a motion to reopen filed
within 180 days after the date of the order of removal if the
alien demonstrates that the failure to appear was because of
exceptional circumstances (as defined in subsection (e)(1) of
this section).” 8 U.S.C. § 1229a(b)(5)(C)(i). “Exceptional cir-
cumstances” are defined as “circumstances (such as battery or
extreme cruelty to the alien or any child or parent of the alien,
serious illness of the alien, or serious illness or death of the
spouse, child, or parent of the alien, but not including less
compelling circumstances) beyond the control of the alien.” 8
U.S.C. § 1229a(e)(1).

   [2] Under the INA’s statutory framework, then, a failure to
appear is a prerequisite for the entry of an in absentia removal
order. If an alien appears at his hearing, an in absentia
removal order may not be entered against him and, it follows,
the statute’s provisions requiring an alien to demonstrate
exceptional circumstances in order to reopen proceedings are
inapplicable. See, e.g., Jerezano v. INS, 169 F.3d 613, 615
(9th Cir. 1999); Romani v. INS, 146 F.3d 737, 738-39 (9th
Cir. 1998). In his briefing before this court, Perez conceded
that a two-hour delay due to mechanical problems would not
constitute exceptional circumstances.2 Rather, Perez argues
  2
   Because Perez conceded this argument in his brief, we do not consider
whether the overheating of a vehicle which causes a delay in reaching the
courthouse constitutes exceptional circumstances. We do note, however,
that this argument is not foreclosed by our decision in Sharma v. INS, 89
F.3d 545, 547 (9th Cir. 1996). In Sharma, we held that a forty-five minute
to one hour delay due to traffic congestion and parking trouble did not
qualify as exceptional circumstances. Id. at 547. Traffic and parking trou-
ble are circumstances that an alien may fairly be expected to anticipate. By
contrast, a car’s mechanical failure is generally an unanticipated occur-
rence which is “beyond the control of the alien.” 8 U.S.C. § 1229a(e)(1).
We nevertheless leave the resolution of whether such a circumstance is
“exceptional” within the meaning of the INA for a time when that argu-
ment is properly before us.
                           PEREZ v. MUKASEY                           1363
that the IJ abused his discretion in requiring Perez to demon-
strate exceptional circumstances in order to reopen his pro-
ceedings because he did not, in fact, fail to appear. We agree.

    [3] In determining whether a petitioner failed to appear, we
have placed particular emphasis on whether the IJ was still in
the courtroom when the petitioner arrived at the courthouse.
For example, in Romani, we held that petitioners did not fail
to appear when they failed to enter the courtroom because
their attorney’s assistant erroneously told them that their case
had already been decided. 146 F.3d at 739. In Jerezano, a
case closely analogous to the one before us today, we held
that a petitioner, who arrived fifteen to twenty minutes late to
his removal hearing due to a stomach ailment that had kept
him up the previous night, did not fail to appear despite his
tardiness because the “IJ was still on the bench” when he
arrived in the courtroom. 169 F.3d at 615 (explaining that
“[w]hile an IJ need not linger in the courtroom awaiting tardy
litigants, so long as he is there on other business . . . it is an
abuse of discretion to treat a slightly late appearance as a nonap-
pearance”).3 By contrast, in Valencia-Fragoso v. INS, we held
that a petitioner failed to appear where she arrived four and
one-half hours late and made no “showing that the IJ was still
on the bench hearing cases” when she arrived in the court-
room. 321 F.3d 1204, 1205 (9th Cir. 2003).

   [4] Applying this precedent, we hold that a petitioner who
arrives late for his immigration hearing, but while the IJ is
  3
   The Fifth Circuit, relying on our decision in Jerezano, has held that,
under some circumstances, it is an abuse of discretion to treat tardiness as
a failure to appear even where the IJ has already left the bench. See
Alarcon-Chavez v. Gonzales, 403 F.3d 343, 346 (5th Cir. 2005). In
Alarcon-Chavez, the IJ had already left the bench and was across the hall
from the courtroom when the petitioner arrived twenty minutes late for his
hearing. Id. at 345. Nevertheless, the Fifth Circuit concluded that the IJ’s
refusal to “step back across the hall and into the hearing room to consider
Petitioner’s case [was] unacceptable.” Id. at 346. We need not consider
here whether we should follow the Fifth Circuit in this regard.
1364                       PEREZ v. MUKASEY
still in the courtroom, has not failed to appear for that hearing.
Accordingly, he is not required to demonstrate exceptional
circumstances in order to reopen proceedings.4 In the present
case, Perez arrived in the courtroom when the IJ was still on
the bench. Thus, he did not fail to appear for his immigration
hearing. The IJ’s failure to reopen or continue his case, even
in the absence of exceptional circumstances, was an abuse of
discretion.5 See, e.g., Jerezano, 169 F.3d at 615.6 Because we
  4
     For this reason, the dissent’s arguments that rest on cases considering
whether petitioners who failed to appear demonstrated exceptional circum-
stances in support of their motions to reopen are not relevant. See Sharma,
89 F.3d at 547 (holding that a forty-five minute to one hour delay due to
traffic congestion and parking trouble does not constitute exceptional cir-
cumstances); Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (holding
exceptional circumstances were present where petitioner was two hours
late for a hearing, but had timely appeared at all prior hearings and was
eligible for adjustment of status as the spouse of a U.S. citizen). Where,
as here, a petitioner does not fail to appear for his hearing, he need not
demonstrate exceptional circumstances in order to reopen proceedings.
Cases addressing what constitutes “exceptional circumstances” are there-
fore not pertinent.
   5
     We recognize that Perez’s lawyer had already left. He could, of course,
have been instructed to return to the courtroom.
   6
     The dissent argues that our holding is inconsistent with precedent and
unworkable. The dissent is wrong on both counts. We have never held that
a petitioner who arrived while the IJ was still in the courtroom failed to
appear. We refuse to do so now. The dissent would prefer a different rule
that would define “failure to appear as not being present at the time
noticed for hearing, if only one matter is scheduled, or as not being present
when the particular matter is called, if more than one matter is on calendar
for the same time.” Under the dissent’s rule, whether or not a petitioner
fails to appear would depend on the fortuity of when his case is called. We
see nothing more workable about that rule than ours.
   The circumstances of the present case illustrate why the dissent’s rule
would lead to unduly harsh results. Even assuming that a car’s mechanical
failure does not constitute exceptional circumstances, the reality is that
cars break down and overheat. Under the dissent’s view, removal could be
required under these circumstances. This would be so even where, as here,
a petitioner makes a good faith attempt to (and does in fact) appear in
immigration court despite the occurrence of an unforseen event and
                           PEREZ v. MUKASEY                            1365
conclude that a remand is warranted on the ground that Perez
did not fail to appear, we do not address his remaining two
challenges to the BIA’s denial of his motion to reopen.

                           IV.    Conclusion

   For the reasons set forth above, we GRANT the petition for
review and REMAND to the BIA with instructions to remand
to the IJ in order to permit Perez to present his claims for asy-
lum and withholding of removal or, in the alternative, volun-
tary departure.

   GRANTED AND REMANDED.



RYMER, Circuit Judge, dissenting:

  Juan Antonio Perez was two hours late for his immigration
hearing — so late that even his lawyer had given up and gone
home. Perez concedes there were no exceptional circum-

despite the fact that the IJ is present in the courtroom and able to hear his
case. Under the dissent’s view, removal would be justified under these cir-
cumstances even though a petitioner might be eligible for some form of
relief. For example, in the present case, even if the dissent is correct that
Perez would lose on the merits, he might well be eligible for voluntary
departure. See 8 U.S.C. § 1229c(b)(1). There is a significant difference
between a removal order and a grant of voluntary departure. A removal
order bars a petitioner from reentering the United States for up to ten years
(or twenty years in the case of a second or subsequent removal or in the
case of an alien convicted of an aggravated felony). See 8 U.S.C.
§ 1182(a)(9)(A). Generally, these severe bars do not attach where a peti-
tioner is granted, and timely complies with, an order of voluntary depar-
ture. But see 8 U.S.C. § 1182(a)(9)(B) (creating three and ten year bars to
returning to the United States where an individual granted voluntary
departure has lived in the United States illegally for certain periods of
time). We see no reason for so harsh a result as would flow from the dis-
sent’s rule.
1366                       PEREZ v. MUKASEY
stances. Nevertheless, the majority holds, he did not “fail to
appear” because, apparently,1 the judge was leaving the bench
but hadn’t yet left the courtroom when Perez arrived. This
stretches Romani v. INS, 146 F.3d 737, 739-39 (9th Cir.
1998), and Jerezano v. INS, 169 F.3d 613, 615 (9th Cir.
1999), to the breaking point, and stuffs Sharma v. INS, 89
F.3d 545, 547 (9th Cir. 1996), into a teapot. It also creates an
unworkable construct. I must, therefore, part company.

   In Jerezano, we invalidated an in absentia order of deporta-
tion when the delay was short — 15 or 20 minutes — and the
IJ was still hearing cases when the alien arrived.2 169 F.3d at
614-15. Here, the delay was not short nor was the IJ hearing
cases. In Romani, the aliens were at the courtroom on time but
were erroneously told by counsel’s assistant not to go in
because their case had been decided. Romani was not a “fail-
ure to appear” case because the Romanis were where they
were supposed to be on time. 146 F.3d at 738. Perez was not,
nor was he misdirected.

   This case is far closer to Sharma, where the aliens arrived
at the hearing between 45 minutes and 1 hour late due to traf-
fic congestion and trouble finding a place to park. We con-
cluded that these were not “exceptional circumstances” under
8 U.S.C. § 1252b(c)(3). Although we did not explicitly con-
sider whether delay of this order of magnitude was a “failure
  1
     I say “apparently” because there are no declarations of any sort in the
record about what actually happened. As the immigration judge (IJ) found
in denying Perez’s motion to reopen, there is no evidence showing when
Perez arrived at court, or what was going on when he got there. Not sur-
prisingly, the regulations require motions to reopen to be supported by
statements under oath and by other evidentiary material. 8 C.F.R.
§ 1003.23(b)(3). On this ground alone, the petition should be denied.
   2
     The delay in the Fifth Circuit case upon which the majority relies was
likewise short — 20 minutes. Alarcon-Chavez v. Gonzales, 403 F.3d 343,
346 (5th Cir. 2005). In holding that there was no failure to appear but only
“a slight tardiness,” the court made a point of noting that “[o]ur holding
today will not require IJs to tolerate substantially tardy litigants.” Id.
                           PEREZ v. MUKASEY                           1367
to appear,” implicitly it was, for otherwise we would not have
reached the issue of exceptional circumstances. See also
Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003)
(holding that a four and one-half hour tardy appearance was
a failure to appear).

   Assuming that a little wiggle room is appropriate,3 the
majority abandons Jerezano’s tether to short delay and
instead founds its new rule on a “late” arrival for an immigra-
tion hearing “while the IJ is still in the courtroom.” In this, it
also jettisons the other lynchpin in Jerezano, that the IJ be still
in the courtroom hearing cases when the alien arrives. And it
takes no account of the fact that Perez’s late appearance was
in form only; by then, Perez was in no position to respond on
the merits because he was so late even his lawyer was no lon-
ger there.

  Actually, Perez had no evident hope of succeeding on the
merits. His papers suggest no reason why he should not be
deported. So the decision here also departs from Singh v. INS,
295 F.3d 1037 (9th Cir. 2002). There, we held that the BIA
abused its discretion in refusing to reopen a case where the
petitioner was two hours late, missed his hearing, and “denial
[would have led] to the unconscionable result of deporting an
individual eligible for relief from deportation.” Id. at 1039-40.
We found Singh’s case exceptional because the petitioner
“had no possible reason to try to delay the hearing.” Id. at
1040. Petitioners without a shot at success, on the other hand,
have every reason to try for delay.

   In sum, the majority opinion overrides Sharma and effec-
  3
   The cleanest rule would be to define failure to appear as not being
present at the time noticed for hearing, if only one matter is scheduled, or
as not being present when the particular matter is called, if more than one
matter is on calendar for the same time. Of course, this would not mean
that an IJ in a particular case, depending upon the circumstances presented
to him, could not exercise his discretion to cut the late-comer slack.
1368                  PEREZ v. MUKASEY
tively overrides Jerezano and Romani as well. It ignores the
ingredient found critical in Singh — that the petitioner was
eligible for relief — in favor of an approach that allows the
system to be gamed. Finally, it burdens the immigration
courts with an uncertain obligation to hear “late” arrivals so
long as the judge is in the courtroom.

   I wouldn’t go down any of these paths. Those facing
removal should show up on time and be ready to go forward
when their case is called. At the very least, they should be in
court within a few minutes of the scheduled time, or call in
to explain that they will be late.

   In any event, I do not believe the IJ abused his discretion
in declining to reopen Perez’s in absentia order. Without
exceptional circumstances to explain it, Perez arrived two
hours, not just a few minutes, beyond the scheduled time for
his appearance, and there is no evidence that Perez was in
court, ready to go, while the judge was on the bench. Conse-
quently, I would deny the petition.
