                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-1200
                                      ___________

                              ELMER MILIAN DUARTE,
                                               Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                    ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A073-180-251)
                    Immigration Judge: Honorable Frederic G. Leeds
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 13, 2010
           Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges

                           (Opinion filed : October 15, 2010 )

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Elmer Milian Duarte petitions for review of a decision rendered by the Board of

Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision denying

his motion to reopen. For the reasons that follow, we will deny the petition for review.
      Duarte is a native and citizen of Guatemala who entered the United States in 1992

without a valid visa, identity or entry document. A notice to appear (“NTA”) charging

Duarte with removal pursuant to INA § 212(a)(6)(A)(i) was mailed to Duarte (at 3

Edward Court, Apt. 3, Trenton NJ) on September 15, 2007. (A.R. at 116-17.) Ten days

later, the Government sent a hearing notice to the same address, requiring Duarte’s

appearance on October 3, 2007. (Id. at 96.) The Immigration Court mailed a second

NTA to Duarte advising him of a hearing scheduled on November 21, 2007, but the mail,

sent to the 3 Edward Court address, was returned as undeliverable.1 (Id. at 93.) When

Duarte failed to appear at the November 21 hearing, the IJ conducted the removal hearing

in absentia pursuant to INA § 240(b)(5)(A). The IJ ultimately ruled that Duarte be

removed to Guatemala based on the documentary evidence submitted by the Government.

(Id. at 36.) The final order of removal was mailed to the 3 Edward Court address.

      In July 2008, Immigration and Customs Enforcement (“ICE”) apprehended Duarte

but did not detain him. On September 18, 2008, he filed a counseled motion to rescind

the in absentia removal order and reopen the proceedings (“motion to reopen”) under

INA § 240(b)(5)(C)(i), attaching an affidavit and medical documentation showing that he

had been hospitalized on an emergency basis for asthma and bronchitis from November



  1
     The IJ’s decision and the Government’s brief state that Duarte was also served
personally with the second NTA when he appeared at the October 3, 2007 hearing. There
is no transcript of the October 3 hearing in the record. There are, however, two identical
NTA’s indicating that a DHS officer served Duarte personally. (See A.R. at 91-92 & 94-
95.)

                                            2
21 through 29, 2007. (Id. at 42-82.) In his affidavit, Duarte stated that “I was scheduled

to appear before an Immigration Judge in Newark, New Jersey on November 21, 2007,”

and that “[t]o my understanding, my former attorney [], informed the immigration court

that I was in the hospital. . . .” (Id. at 83.) Duarte claimed that his hospitalization

constituted “exceptional circumstances” warranting rescission of the in absentia order

under 8 C.F.R. § 1003.23(b)(4)(ii). (Id.) The IJ denied the unopposed motion, finding

that it was untimely filed well beyond the requisite 180-day filing period. The IJ noted

that Duarte failed to explain why he waited for about eight or nine months from the date

of the removal order (November 21, 2007) before filing his motion to reopen.2 The Board

of Immigration Appeals (“BIA”) affirmed the IJ’s finding that the motion was time-

barred, holding that Duarte did not contest the timeliness issue on appeal and that he

offered no basis for equitable tolling. This timely petition for review followed.

       We have jurisdiction over this petition pursuant to INA § 242(a), 8 U.S.C.

§ 1252(a). We review the agency’s denial of a motion to reopen for abuse of discretion.




  2
     The IJ also ruled that rescission was not otherwise called for under 8 C.F.R.
§ 1003.23(b)(4)(ii) because Duarte did not deny receiving the second NTA for the
November hearing and he did not allege or demonstrate that his failure to appear was due
to circumstances beyond his control while he was in federal or state custody. The IJ also
found that to the extent that Duarte claimed that counsel was ineffective in failing to
notify the immigration court of his hospitalization, he failed to comply with Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988). The IJ found that Duarte submitted no evidence
that he had retained counsel prior to the November 21, 2007 hearing and that the record
lacked any evidence that he diligently attempted to verify his removal status with the
immigration court on his own.

                                               3
Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105 (1988). Under this

deferential standard of review, we will not disturb the agency’s decision unless it is

arbitrary, irrational, or contrary to the law. Santana Gonzalez v. Att’y Gen., 506 F.3d

274, 276 (3d Cir. 2007).

       When an alien seeks reopening to rescind an order of removal in absentia based on

his failure to appear due to exceptional circumstances, he must file the motion within 180

days of the date of the order of removal. 8 U.S.C. § 1229a(b)(5)(C)(i) [INA

§ 240(b)(5)(C)(i)]. An alien may file a motion to reopen an order of removal in absentia

at any time, however, if it is based on a claim that he did not receive proper notice of his

hearing or that he was in federal or state custody and failed to appear through no fault of

his own. 8 U.S.C. § 1229a(b)(5)(C)(ii) [INA § 240(b)(5)(C)(ii)].

       In his brief in support of his petition for review, Duarte alleges that “he did not

receive the Notice of Hearing” for the November 21, 2007 hearing, a claim for relief

under § 1229a(b)(5)(C)(ii). (Pet’r Br. at 7.) The Government counters that we lack

jurisdiction to consider this argument because Duarte failed to raise it on appeal to the

BIA. The Court’s jurisdiction is limited under § 242(d)(1) of the INA to cases where the

petitioner “has exhausted all administrative remedies available to the alien as of right . . .

.” 8 U.S.C. 1252(d)(1); see Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.

2003). A petitioner has exhausted his administrative remedies if he raises all issues

before the BIA. Although the exhaustion principle is not applied “in a draconian



                                               4
fashion,” “[o]ut of respect for the administrative process, we will not require the BIA to

guess which issues have been presented and which have not.” Lin v. Att’y Gen., 543 F.3d

114, 121-22 (3d Cir. 2008). Even if a petitioner does not exhaust a claim, this Court may

still have jurisdiction to consider it, if the BIA sua sponte addressed the issue on its

merits. Id. at 122-23.

       In his Notice of Appeal to the BIA, after setting forth the standard for reopening

due to exceptional circumstances under INA § 240(b)(5)(C)(i), Duarte noted that the

NTA (for the November 21, 2007 hearing) was returned to the Immigration Court labeled

“return to sender, unable to forward,” and that “[c]onsequently, Respondent failed to

appear.” (A.R. at 23.) Duarte immediately followed this statement with an explanation

that “his failure to appear at the scheduled hearing was due to “exceptional

circumstances,” and he claimed that he had established a prima facie case for relief based

on his serious respiratory illness. (Id.) In his brief to the BIA, Duarte again argued that

the exceptional circumstance of his hospitalization prevented him from appearing at the

hearing. In addition, he claimed that his “medical condition” prevented him from filing a

timely motion to reopen. (Id. at 6.) Notably, Duarte did not contest the IJ’s finding that

Duarte “did not deny” that he had received notice. Based on the foregoing, we conclude

that the BIA was not given sufficient notice of Duarte’s lack of notice claim. Moreover,

the BIA did not reach the lack of notice issue on its merits sua sponte in its order. Hence,

we lack jurisdiction to review the unexhausted claim.



                                               5
       Duarte also argues the merits of his claim that he was unable to appear at the

November 21 hearing due to his hospitalization. He does not challenge, however, the

BIA’s conclusion that his motion to reopen was untimely filed. His brief contains no

argument concerning the timeliness of his motion to reopen or the applicability of

equitable tolling, and, thus, it is not sufficient to bring the issue before the Court, and we

deem the issue waived. De Araujo v. Gonzales, 457 F.3d 146, 153 (1st Cir. 2006); Voci

v. Gonzales, 409 F.3d 607, 609 n.1 (3d Cir. 2005).

       For the foregoing reasons, we will deny the petition for review.




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