     Case: 09-60438     Document: 00511154652          Page: 1    Date Filed: 06/25/2010




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

                                                  FILED
                                                                            June 25, 2010

                                     No. 09-60438                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



DONG YANG,

                                                   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. A088 517 361


Before REAVLEY, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Dong Yang, a native and citizen of China, seeks review of an order of the
Board of Immigration Appeals (BIA) dismissing his appeal from the immigration
judge’s (IJ) denial of his motion to reopen. We DENY the petition.
        When Yang failed to appear at a master calendar hearing in San Antonio
the IJ ordered him removed in absentia. Yang moved to reopen the proceedings,
contending that he missed his hearing due to a misunderstanding about his


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                  No. 09-60438

flight from New York City to San Antonio on the day before the hearing. Yang
mistakenly believed that the flight would be nonstop, so when the plane landed
in Memphis for refueling he got off. By the time Yang discovered his error, the
plane had left without him, and Yang was forced to take a flight the next
morning, which resulted in his arriving at the hearing approximately three
hours late.    The IJ determined that Yang failed to show exceptional
circumstances warranting the reopening of the case.         The BIA agreed and
dismissed the appeal. Yang now seeks review in this court.
      We review the denial of a motion to reopen under a highly deferential
abuse of discretion standard. Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th
Cir. 2009). We will affirm the BIA’s decision unless it is “capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so irrational
that it is arbitrary rather than the result of any perceptible rational approach.”
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) (internal quotation and
citation omitted).
      An alien may be ordered removed in absentia if (1) the alien fails to appear
for his scheduled hearing despite receipt of a proper hearing notice, and (2) the
Government establishes that the alien is removable.                See 8 U.S.C.
§ 1229a(b)(5)(A). Such a removal order may be rescinded only upon “a motion
to reopen filed within 180 days after the date of the order of removal if the alien
demonstrates that the failure to appear was because of exceptional
circumstances.” Id. § 1229a(b)(5)(C)(i).
      Yang argues that the only question we need to decide is whether he
actually failed to appear for his hearing. He contends that his arrival at the
courthouse three hours after the scheduled hearing time constitutes mere
tardiness and not a failure to appear. He relies on our decision in Alarcon-
Chavez v. Holder, 403 F.3d 343 (5th Cir. 2005). In that case, the petitioner
missed the proper highway exit during rush hour traffic and arrived a mere

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                                      No. 09-60438

twenty minutes after the scheduled hearing time, and five minutes after the IJ
had issued the removal order. Meanwhile, the IJ had retired to a room across
the hall from the courtroom. Id. at 344–45. The petitioner made every effort to
persuade the IJ to resume the hearing and filed a motion to reopen within five
days. Id. at 346. We held that under those circumstances the petitioner had not
failed to attend his hearing, and it was an abuse of discretion to deny the motion
to reopen. The case is distinguishable from the instant matter, however.
       Unlike Alarcon-Chavez, Yang was three hours late to the hearing. This
was not the same minimal tardiness present in Alarcon-Chavez and similar
sister circuit decisions. See, e.g., Abu Hasirah v. Dep’t of Homeland Sec., 478
F.3d 474, 479 (2d Cir. 2007) (petitioner was 15 minutes late for hearing);
Cabrera-Perez v. Gonzales, 456 F.3d 109, 117 (3d Cir. 2006) (petitioner arrived
15–20 minutes late). Furthermore, Yang asserts that he did appear and arrived
just as the IJ was leaving the courtroom, but there is no evidence that the IJ was
ever made aware that Yang was in the courthouse. See Alarcon-Chavez, 403
F.3d at 346 (finding unacceptable the IJ’s refusal to step back across the hall
into the hearing room to consider petitioner’s case). Yang contends that he
sought assistance from the clerk’s office but was merely given a note with the
name and phone number of his attorney, who he says had filed a motion to
withdraw and was no longer representing him. The record shows, however, that
counsel was still the attorney of record for Yang and was present for the hearing
yet had no explanation for Yang’s whereabouts.1 Finally, Yang waited two
weeks before filing his motion to reopen after the removal order and therefore
failed to demonstrate the same alacrity in seeking reopening as the petitioner



       1
        Yang’s current appellate counsel contends that he had also filed an appearance and
had attempted to contact the clerk about Yang’s delayed arrival. This argument was not
raised before the BIA, however, and is not properly before us. See Wang v. Ashcroft, 260 F.3d
448, 452–53 (5th Cir. 2004).

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                                    No. 09-60438

in Alarcon-Chavez. The BIA did not abuse its discretion in concluding that Yang
failed to appear for his hearing.
      Yang next devotes several pages of his brief to a discussion of the evidence
showing that he justifiably believed his flight was nonstop and whether the
airline offered a nonstop flight at the time of his hearing. To the extent that
Yang is arguing his failure to appear was due to exceptional circumstances, the
argument is unavailing. Exceptional circumstances justifying the reopening of
the removal order must be “beyond the control of the alien.”                 8 U.S.C.
§ 1229a(e)(1). Typically, these circumstances are “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[.]” Id.
      According to Yang, he was supposed to take an early morning flight to San
Antonio and ended up on the afternoon flight that landed in Memphis because
he did not have the proper identification to board the earlier flight and had to re-
book his travel. We agree with the Government that the fact that Yang was able
to secure proper identification and then board the later flight on the same day
seriously undermines Yang’s argument. Yang was forced to take the ill-fated
later flight only because he lacked proper identification earlier. His experience
on the afternoon flight is regrettable, but his ability to obtain proper
identification for later travel on the same day shows that Yang’s travel
difficulties were not exceptional circumstances beyond his control. The BIA did
not abuse its discretion in denying the motion to reopen.
      The petition for review is DENIED.




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