                                                                [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                   FILED
                                                           U.S. COURT OF APPEALS
                                No. 08-14342                 ELEVENTH CIRCUIT
                                                                 MARCH 3, 2009
                            Non-Argument Calendar
                                                              THOMAS K. KAHN
                          ________________________
                                                                   CLERK

                            Agency No. A88-160-049

GIOVANNI VICENTE CHIA,


                                                                         Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.


                          ________________________

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

                               (March 3, 2009)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Giovanni Vicente Chia, a citizen of Peru, petitions for review of the denial
of his motion to reopen his removal proceedings. After review, we deny Chia’s

petition.

                                 I. BACKGROUND

       On June 7, 2007, the Department of Homeland Security (“DHS”) issued a

Notice to Appear, charging Chia with removability as a nonimmigrant who

remained in the United States longer than permitted, pursuant to INA §

237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). On June 20, 2007, notice of the

September 11, 2007 removal hearing was mailed to Chia. The notice warned Chia

that his failure to appear would lead to a removal order being entered in his

absence. Chia did not appear at the hearing. The Immigration Judge (“IJ”) entered

in absentia a final removal order.

       On September 17, 2008, Chia filed a motion to reopen, arguing that he had

shown exceptional circumstances justifying his failure to appear. Chia’s motion

also requested reopening based on his eligibility to file an application for a

marriage-based status adjustment. Chia stated that he had married a United States

citizen and intended to file such an adjustment application. Chia attached a copy

of a receipt for his marriage license filing fee. In an attached affidavit, Chia did

not dispute that he had received notice of the hearing. Instead, Chia stated that he

missed the hearing because he was required to report to work. Once Chia was at

work, he obtained permission from his supervisor to attend the hearing. By the
                                           2
time Chia commuted from his work to the courthouse, the hearing was over.

       The IJ denied Chia’s motion to reopen, concluding he had not shown

exceptional circumstances. During his BIA appeal, Chia supplemented the record

with a copy of the receipt of his wife’s I-130 petition filed on his behalf. The BIA

dismissed Chia’s appeal because (1) Chia had notice of the September 2007

hearing in June 2007 and (2) his failure to obtain advance permission from his

supervisor to attend his removal hearing did not constitute exceptional

circumstances. As to Chia’s claim that he was eligible for a marriage-based

adjustment of status, the BIA found that Chia had not presented evidence showing

a strong likelihood that his marriage was bona fide and had not submitted the

required I-485 application for adjustment of status.

                                     II. DISCUSSION

       On appeal, Chia argues that the BIA abused its discretion in denying his

motion to reopen because he showed exceptional circumstances justifying his

failure to appear at the removal hearing.1



       1
         “We review the denial of a motion to reopen for an abuse of discretion.” Lonyem v.
U.S. Att’y Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). “Our review is limited to determining
whether there has been an exercise of administrative discretion and whether the matter of
exercise has been arbitrary and capricious.” Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir.
2006) (quotation marks omitted). We apply deferential review “regardless of the underlying
basis of the alien’s request for relief.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.
2001) (quotation marks omitted). We review only the BIA’s decision unless the BIA expressly
adopts the IJ’s opinion or reasoning. Id. at 1284. Here, the BIA issued its own opinion, and,
thus, we review only the BIA’s decision.
                                                   3
       An alien who, after receiving written notice, does not attend a proceeding

shall be ordered removed in absentia if the DHS establishes that it gave written

notice and the alien was removable. INA § 240(b)(5)(A), 8 U.S.C.

§ 1229a(b)(5)(A). An in absentia removal order may be rescinded if the alien

moves to reopen within 180 days of the order and demonstrates that the failure to

appear was because of “exceptional circumstances.” INA § 240(b)(5)(C)(i), 8

U.S.C. § 1229a(b)(5)(C)(i). Exceptional circumstances include circumstances

beyond the control of the alien, “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.” INA § 240(e)(1), 8 U.S.C. § 1229a(e)(1). “Giving . . . notice of

one’s unavailability is a minimal and logical step that, if not taken, is a factor

which tends to undermine a claim of exceptional circumstances.” Lonyem v. U.S.

Att’y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003) (concluding that BIA did not

abuse its discretion in determining alien had not shown exceptional circumstances

where alien missed the hearing because he was ill, but did not make any effort to

contact the immigration court on the day of his removal hearing).

       We easily conclude that Chia has not shown the required exceptional

circumstances. Chia does not dispute that he had almost three months’ notice of

the hearing and does not offer any explanation for why he could not have pre-
                                             4
arranged time off from work to attend the hearing. Furthermore, Chia did not

contact immigration court personnel to advise them of his unavailability or late

arrival. Thus, the BIA did not abuse its discretion in denying Chia’s motion to

reopen based on exceptional circumstances beyond his control.

      Alternatively, Chia argues that his motion to reopen should have been

granted because his wife has filed an I-130 Petition for Alien Relative seeking a

visa for him, which is the first step in seeking adjustment of his status. When

filing a motion to reopen, an alien is required to attach “the appropriate application

for relief and all supporting documentation.” 8 C.F.R. §§ 1003.2(c)(1) (before

BIA), 1003.23(b)(3) (before IJ). Form I-485 is the appropriate form for applying

for adjustment of status. See Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1362 (11th

Cir. 2006); see also 8 C.F.R. § 245.2(a)(3)(ii). Here, the record shows that Chia

failed to attach an I-485 form to his motion to reopen as required by agency

regulation.

      Moreover, apart from the fee receipt for his marriage license, Chia presented

no evidence that his marriage was bona fide, which also is required to grant a

motion to reopen to pursue an application for adjustment of status. See In re

Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002) (stating alien’s motion to

reopen to pursue adjustment-of-status application must present “clear and

convincing evidence indicating a strong likelihood that the respondent’s marriage
                                           5
is bona fide”); see also 8 C.F.R. § 204.2(a)(1)(iii) (requiring alien married while in

removal proceedings to show by clear and convincing evidence that his marriage is

bona fide and listing types of documents alien may submit). For these reasons, the

BIA did not abuse its discretion in denying the motion to reopen based on his

failure to comply with applicable regulations.

      PETITION DENIED.




                                           6
