                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                                No. 10-14232        ELEVENTH CIRCUIT
                          ________________________ DECEMBER 16, 2011
                                                         JOHN LEY
                                                          CLERK
                           Agency No. A099-704-895


WEI BIAO ZHENG,

                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          ________________________

                              (December 16, 2011)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

      Wei Biao Zheng, a citizen of China, petitions for review of the Board of

Immigration Appeals’ (“BIA”) order denying his motion to reopen his removal
proceedings. After review and oral argument, we deny the petition for review.

                         I. FACTUAL BACKGROUND

A.    2006 Arrest

      In December 2006, Zheng was arrested in Charlotte, North Carolina during

a raid on a Chinese restaurant where Zheng worked. Zheng told immigration

officials that a smuggler had transported him over the U.S./Mexico border in the

trunk of a car for $10,000. Zheng was taken into Immigration and Customs

Enforcement custody and held at a detention facility in Atlanta.

      On December 19, 2006, the Department of Homeland Security (“DHS”)

issued a Notice to Appear (“NTA”) charging Zheng with being removable as an

alien present in the United States without being lawfully admitted or paroled,

pursuant to the Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8

U.S.C. § 1182(a)(6)(A)(i). The NTA was personally served on Zheng and warned

him that his failure to appear at his removal hearing at the date and place directed

by the Immigration Court could result in a removal order being entered in his

absence.

B.    January 16, 2007 Hearing in Atlanta

      On January 16, 2007, Zheng (still in custody) appeared at a master calendar

hearing in Atlanta, Georgia, where he was represented by a New York attorney,

                                          2
K.C. Huang. The Immigration Judge (“IJ”) granted Zheng’s request for release on

a $20,000 bond. Upon release, Zheng reported to immigration officials that his

address would be in Charlotte, North Carolina.

       At the hearing, the IJ set a master calendar hearing in Atlanta for February

1, 2007. The hearing notice advised Zheng, among other things, that if he failed to

appear at his removal hearing, the hearing may proceed in his absence and a

removal order may be entered against him. Immigration Court staff personally

served the written notice on attorney Huang, and the IJ orally advised Zheng of the

contents of the notice in his native language.

C.     February 1, 2007 Hearing in Atlanta

       On February 1, 2007, Zheng and attorney Huang appeared at the second

master calendar hearing in Atlanta.1 At that hearing, the IJ set a third master

calendar hearing for February 20, 2007 and issued a written notice of that hearing.

The written notice advised Zheng that if he failed to appear, the hearing might be

held in his absence and a removal order might be entered. The IJ orally advised

Zheng of the contents of the written notice in his native language.

       On the same day, attorney Huang filed a written motion for change of venue



       1
       Zheng’s motion to reopen alleges that he paid Huang for his expenses to travel to the
February 1, 2007 hearing.

                                               3
from Atlanta, Georgia to New York City, Zheng’s new place of residence. The

motion stated that Zheng was living in New York City and that “trips between

Atlanta and New York City” would “strain[] his financial sources, if there is any.”

In an affidavit in support of the motion for a change of venue, Zheng advised that

he currently resided in Brooklyn, New York. Zheng’s affidavit admitted the

charges of removability in the NTA and stated that Zheng was seeking political

asylum, withholding of removal and relief under the Convention Against Torture.

Zheng also filed a change of address form stating that his new address was in

Brooklyn, New York.

      Also on February 1, 2007, Zheng filed a bare-bones application for asylum,

withholding of removal and relief under the Convention Against Torture based on

nationality, political opinion and Convention Against Torture. Zheng merely

checked the “Yes” boxes for the questions asking if: (1) he, his family or close

friends or colleagues had experienced harm or mistreatment or threats in the past;

(2) he feared harm or mistreatment if he was returned to China; (3) he or his

family members had been accused, charged, arrested, detained, interrogated,

convicted and sentenced, or imprisoned in another country; and (4) he feared he

would be tortured in China. However, Zheng did not complete any sections of the

application asking him to provide details if he had answered yes to these

                                         4
questions.



D.    February 20, 2007 Hearing in Atlanta

      On February 20, 2007, during a third master calendar hearing in Atlanta, the

IJ set Zheng’s final removal hearing for April 5, 2007 in Atlanta, Georgia. Zheng

was present at the February 20 hearing, but his attorney was not.

      The IJ issued a written notice of the April 5 second hearing that advised

Zheng that his failure to appear at the hearing may result in a removal order being

entered in his absence if the government established that Zheng or his attorney

was provided with notice of the April 5 hearing and Zheng was removable. The IJ

orally advised Zheng of the contents of the notice in his native language. In this

appeal, Zheng does not dispute that he knew the date and place of his removal

hearing and has never claimed that he did not understand the possible

consequences he faced if he failed to appear.

      Also on February 20, 2007, attorney Huang filed a motion for a telephonic

hearing on Zheng’s motion to change venue. The motion argued that both Huang

and Zheng resided in New York City and that Zheng could not afford to pay for

attorney Huang to fly to Atlanta for the hearing. The motion admitted the charges

of removability in the NTA and stated that Zheng was seeking asylum and

                                         5
withholding of removal. During February and March 2007, there was no ruling on

Zheng’s motion to change venue or request for telephonic hearing on the motion.

E.    April 2-4, 2007

      On April 2, 2007, attorney Huang renewed his request for a telephone

hearing on Zheng’s motion to change venue. Huang stated that he could not be

present at Zheng’s April 5 removal hearing because he would be in court in San

Antonio, Texas on that date.

      On April 4, 2007, the IJ denied Zheng’s motion to change venue, stating no

good cause had been shown. In a separate order, the IJ denied Zheng’s request for

a telephonic hearing on the motion and stated that the removal hearing was set for

April 5, 2007 at 1:00 p.m.

      On April 5, neither Zheng nor his attorney appeared at the removal hearing

in Atlanta. The IJ entered a final order of removal in absentia.

F.    October 1, 2007 Motion to Reopen

      Zheng retained new counsel and, on October 1, 2007, moved to reopen his

removal proceedings based on attorney Huang’s alleged ineffective assistance of

counsel.

      In a supporting affidavit, Zheng alleged that “in the weeks and days

approaching the April 5th, 2007 hearing in Atlanta I asked Attorney Huang what

                                          6
we should be doing to prepare for the hearing, and that he repeatedly told me not

to worry about the hearing because he expected that venue in the matter would be

changed[.]” According to Zheng’s affidavit, attorney Huang “continued to make

such assurances right up until a day or two before the hearing on April 5th, 2007.”

      Then, on April 4, “while at Attorney Huang’s office [Zheng] spoke with

Attorney Huang over the phone and that together with [Huang’s] staff we found

out that in fact the venue in the matter had not been changed.” At that point,

Huang’s staff informed Zheng that Huang needed $5,000 to appear at the April 5

hearing and that Zheng “shouldn’t worry about his [attorney] appearing or not

appearing.” “[B]y the end of the meeting [Zheng] was quite diswrought [sic], and

fearful that [his] case was in trouble.” When Zheng complained at the exorbitant

fee, Huang’s staff advised Zheng “that it didn’t matter if Attorney Huang went to

the hearing or not.” Negotiations “broke off,” and Zheng left Huang’s office

“feeling . . . deceived and victimized.”

      Zheng’s October 1 motion to reopen admitted that Zheng did not go to the

April 5 hearing in Atlanta “because he was without guidance from his attorney as

to how to proceed in his immigration action, and because he was fearful.” And

Zheng does not dispute that he knew that he still needed to attend the April 5

hearing. The IJ denied Zheng’s motion to reopen. The BIA remanded for the IJ to

                                           7
make more particularized findings. The IJ entered a second order denying

Zheng’s motion to reopen.

      Subsequently, the BIA dismissed Zheng’s appeal. The BIA found that

Zheng had notice of the removal hearing and does not challenge that proper notice

was given of the April 5 hearing. The BIA also found that Zheng was informed by

his attorney that venue had not changed and that Zheng needed to appear at the

hearing. The BIA further found that Zheng’s former attorney had not prevented

Zheng from attending the hearing and had correctly advised Zheng that he should

appear at the hearing. The BIA concluded Zheng had not shown that his former

attorney prejudiced him. Zheng timely petitioned for review of the denial of his

motion to reopen.

                                II. DISCUSSION

      An alien who seeks to reopen removal proceedings following the entry of an

in absentia removal order must demonstrate that the alien’s failure to appear was

due to “exceptional circumstances.” INA § 240(b)(5)(C)(i), 8 U.S.C.

§ 1229a(b)(5)(C)(i). Exceptional circumstances are only those “beyond the

control of the alien,” such as serious illness or death of a family member. INA

§ 240(e)(1), 8 U.S.C. § 1229a(e)(1) (emphasis added).

      Ineffective assistance of counsel may be an exceptional circumstance only if

                                         8
the alien shows prejudice. Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1274 (11th

Cir. 2005). A claim of ineffective assistance of counsel may amount to

exceptional circumstances “when an applicant’s failure to appear is due to his

attorney’s errant instruction.” Montano Cisneros v. U.S. Att’y Gen., 514 F.3d

1224, 1226 (11th Cir. 2008) (concluding that alien showed prejudice where his

attorney told him he did not need to appear at hearing and that case had been

transferred to Tennessee); see also In re Grijalva-Barrera, 21 I.&N. Dec. 472, 473-

74 (BIA 1996) (concluding an alien showed prejudice where the alien failed to

appear because he was incorrectly informed by his attorney’s staff that there had

been a continuance and he did not need to appear at the hearing).

       We review for abuse of discretion the denial of a motion to reopen in

absentia removal proceedings based on exceptional circumstances. Montano

Cisneros, 514 F.3d at 1226. “In this particular area, the BIA’s discretion is quite

broad.” Anin v. Reno, 188 F.3d 1273, 1276 (11th Cir. 1999) (internal quotation

marks omitted). Our review is limited to whether the exercise of discretion was

“arbitrary or capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.

2005).2


       2
        Where, as here, the BIA issued its own decision and did not expressly adopt the IJ’s
decision or reasoning, we review only the BIA’s ruling. See Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001).

                                                9
       Here, the BIA did not abuse its discretion in denying Zheng’s motion to

reopen because Zheng did not show that his own failure to appear at the hearing

was the result of his attorney’s errant instructions.

       As recounted above, on February 20, 2007, Zheng’s removal hearing was

set for April 5, 2007 in Atlanta, Georgia. Zheng’s attorney moved to change the

venue to New York City, where both Zheng and his attorney reside. Although

Zheng’s attorney several times told Zheng he expected the motion to be granted,

there was undisputedly no ruling forthcoming on the motion during February and

March, 2007.

       Rather, on April 4, 2007, the IJ denied the motion, and the attorney

immediately informed Zheng the motion was denied, the hearing would occur in

Atlanta the next day, and Zheng needed to attend. Although Zheng’s attorney

would not attend without an additional $5,000 fee, and Zheng balked at the

“exorbitant cost,” the attorney’s staff advised Zheng he “shouldn’t worry about his

[attorney] appearing or not appearing” and that it did not matter if his attorney

went to the hearing or not.3

       Before this Court, Zheng admits that he knew he needed to attend. Yet



       3
        In his motion to reopen, Zheng stated that his attorney did not attend the hearing because
he “had an obligation to another client in California on the same day.”

                                                10
Zheng did not appear at the hearing. Zheng also admits that he did not appear

because “he was fearful” and did not have guidance from his attorney how to

conduct his immigration action.

       Unlike the aliens in Montano Cisneros and In re Grijalva-Barrera, Zheng

has not alleged that his attorney told him that the motion for a change of venue

was granted or that Zheng did not have to attend the hearing. Just the opposite

occurred here. Both Zheng’s attorney on April 4, as well as the IJ at three prior

hearings, told Zheng he needed to appear.4 In fact, Zheng’s brief on appeal admits

that his attorney told him he had to attend and that he shouldn’t worry about his

attorney not being present as follows:

       At the time that Mr. Zheng’s counsel had informed him of the fact
       that venue had not been changed in his case, and that Mr. Zheng had
       to attend a hearing in Atlanta, Georgia two days later, Mr. Zheng
       attached an affidavit to his motion to reopen. . . . The affidavit further
       states that Mr. Zheng was at his lawyer’s office, which was located
       in New York, one day before the hearing, when his attorney
       informed him that venue had not been changed and that Mr.
       Zheng would have to appear at the hearing in Atlanta. Mr.
       Zheng’s counsel then informed Mr. Zheng that ‘. . . it didn’t matter if
       Attorney Huang went to the hearing or not[,]’ and that he
       ‘. . . shouldn’t worry about his appearing or not appearing[ ] . . . .”
       (AR at 187).

       The BIA concluded that, even assuming his attorney’s performance was


       4
        Zheng had attended hearings in Atlanta thrice before and he has not alleged, much less
submitted evidence, that he did not have funds to travel to Atlanta.

                                               11
“deficient in certain respects,” it did not prevent Zheng from appearing at his

hearing. In other words, Zheng did not show the kind of prejudice that constitutes

exceptional circumstances beyond Zheng’s control. Given the record and Zheng’s

brief on appeal, we also cannot say the BIA’s determination was arbitrary or

capricious.5

       PETITION DENIED.




       5
        We do not address Zheng’s argument that the IJ failed to make particularized findings on
remand from the BIA. Zheng failed to exhaust this issue before the BIA in his second BIA
appeal. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
Furthermore, because the BIA issued its own decision and did not adopt the IJ’s order, our
review is limited to the BIA’s decision. See Al Najjar, 257 F.3d at 1284.

                                              12
