                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                            UNITED STATES COURT OF APPEALS
                                                                                         March 17, 2004
                                 FOR THE FIFTH CIRCUIT
                                                                                     Charles R. Fulbruge III
                                     _________________________                               Clerk
                                           No. 03 - 60195
                                       SUMMARY CALENDAR
                                     _________________________

ANDREW JAMES,

                       Petitioner,

   v.

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                       Respondent.

______________________________________________________________________________

                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                BIA No. A78-553-395
______________________________________________________________________________

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:1

        In this appeal we review the Board of Immigration Appeals’ decision denying Andrew

James’ motion to reopen his removal proceedings. When James failed to attend his removal

hearing, the Immigration Judge issued an in absentia removal order. James claims that his absence

was due to a viral infection, and that the illness constitutes an exceptional circumstance justifying

rescission of the removal order and reopening of his proceedings.


        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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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       The Board of Immigration Appeals affirmed the Immigration Judge’s decision without an

opinion, so we review the Immigration Judge’s decision. See Mikhael v. INS, 115 F.3d 299, 302

(5th Cir. 1997). We review the denial of a motion to reopen for abuse of discretion. De Morales

v. INS, 116 F.3d 145, 147 (5th Cir. 1997).

       An order of removal will be rescinded only if the alien demonstrates that his failure to

appear was due to exceptional circumstances beyond his control. 8 U.S.C. §§ 1229a(b)(5)©) and

1229a(e)(1).

       James has failed to establish that he is entitled to rescission of the Immigration Judge’s

order based upon exceptional circumstances because he delayed almost six weeks in contacting

the court regarding his absence due to illness. See De Morales, 116 F.3d at 149. The petition for

review is denied.




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