          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 April 15, 2009
                               No. 08-60141
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

XIAN SHUN SHEN

                                           Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                           Respondent


                    Petition for Review of an Order of the
                       Board of Immigration Appeals
                             BIA No. A94 798 045


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Xian Shun Shen, a native and citizen of the People’s Republic of China,
petitions this court for review of the Board of Immigration Appeals’ (BIA)
decision dismissing her appeal of the Immigration Judge’s (IJ) denial of the
motion to reopen her in absentia removal proceedings. Shen does not dispute
that she was provided written notice of the August 30, 2006, hearing as required
by 8 U.S.C. § 1229(a)(1) and (a)(2), nor does she dispute that she was removable



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                    No. 08-60141

as charged in the Notice to Appear. Instead, Shen argues that she did not attend
the hearing because she received erroneous advice from a law office’s non-
attorney employee 1 and she was unable to fully understand the immigration
officer’s instructions.
      An order of removal entered in absentia may be rescinded upon a motion
to reopen filed within 180 days of the removal order if the alien demonstrates
that her failure to appear at the hearing was due to exceptional circumstances.
8 U.S.C. § 1229a(b)(5)(C)(i). The term “exceptional circumstances” is defined as
“exceptional 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.” § 1229a(e)(1).
      The BIA determined that Shen failed to comply with the requirements set
forth in In re Lozada, 19 I. & N. Dec. 637 (BIA 1988), overruled in part by In re
Compean, 24 I. & N. Dec. 710 (BIA 2009), because she failed to identify the non-
attorney employee in question, show that the “American-looking man” who gave
the advice or any attorney affiliated with the law office actually agreed to
represent her, and establish that an agreement was entered into with respect to
actions to be taken on her behalf. The BIA concluded that the IJ correctly
determined that Shen’s decision to rely upon the alleged instructions to not
attend the August 30, 2006, hearing was not an exceptional circumstance.
      Although Shen filed an affidavit in support of her motion to reopen, she
did not sufficiently detail the relevant facts. Aside from identifying the law
office and stating that she went there to hire an attorney, Shen did not state
whether she ever met with an attorney, whether anyone at the law office agreed
to represent her, or whether it was the “Korean-speaking lady” or the


      1
         Shen refers to the two people she met at the attorney’s office as the “American-
looking man” and the “Korean-speaking lady.” Lacking any other identification for these
individuals, we use Shen’s descriptions.

                                           2
                                  No. 08-60141

“American-looking man” who told her that she should not attend the hearing.
The affidavit did not include sufficient facts from which to evaluate whether it
was reasonable for Shen to rely on the non-attorney employee’s advice. See
Lozada, 19 I. & N. Dec. at 639. Therefore, the BIA did not abuse its discretion
when it rejected Shen’s ineffective assistance of counsel claim based on her
failure to comply with Lozada’s procedural requirements.            See Lara v.
Trominski, 216 F.3d 487, 498-99 (5th Cir. 2000).
      Further, although Shen asserts that she did not fully understand the
immigration officer’s instructions, she admittedly understood the officer’s advice
to hire an attorney and attempted to follow this advice when she went to the law
office 11 days after being released from custody. Shen also admitted that prior
to being advised not to attend the hearing, the non-attorney employee told her
that the documents given to her by the Department of Homeland Security meant
that she should go to court in Texas. Shen deliberately chose not to attend the
hearing based on the non-attorney employee’s erroneous advice. Therefore, the
BIA did not abuse its discretion when it determined that Shen failed to
demonstrate that her failure to appear at the hearing was due to exceptional
circumstances beyond her control.
      Accordingly, Shen’s petition for review is DENIED.




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