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

                                                FILED
                                                                February 19, 2009
                                No. 08-60138
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

EK HONG DJIE; YOHANA DEWI MULYANI

                                           Petitioners

v.

ERIC H. HOLDER, JR., U S ATTORNEY GENERAL

                                           Respondent


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                              BIA No. A77 736 992
                              BIA No. A77 736 993


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Petitioners Ek Hong Djie and his wife Yohana Dewi Mulyani, natives and
citizens of Indonesia, petition this court for review of the Board of Immigration
Appeals’ (BIA) decision dismissing their appeal of the Immigration Judge’s (IJ)
denial of the motion to reopen their in absentia removal proceedings. The
Petitioners contend that the BIA abused its discretion and erred as a matter of
law when it dismissed their appeal.       Specifically, they contend that the


      *
      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should not be published and is not precedent except under the limited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. 08-60138

Government failed to establish by clear, unequivocal, and convincing evidence
that they were properly notified of the May 8, 2000, hearing and of the
consequences of failing to appear at that hearing.
      Any alien who fails to appear at a removal proceeding shall be ordered
removed in absentia if the Government establishes by clear, unequivocal, and
convincing evidence that the alien is removable and that the alien, or the alien’s
counsel of record, was provided the written notice required by 8 U.S.C.
§ 1229(a)(1) and (a)(2). 8 U.S.C. § 1229a(b)(5)(A). As the BIA noted, sections
1229(a)(1) and (b)(1) do not require notice in the alien’s native language. See
§ 1229(a)(1), (b)(1).   They require only that the Notice to Appear and any
subsequent hearing notices be served on the alien or the alien’s attorney and
that these written notices specify, in relevant part, the date, time, and place of
the removal hearing and the consequences of failing to appear. Id.
      A review of the record shows that the Petitioners were afforded the
requisite notice. The Petitioners were personally served with written Notices to
Appear. The Notices to Appear provided that the date and time of the removal
hearing was “to be set,” and specifically warned that if the Petitioners failed “to
attend the hearing at the time and place designated on [the] notice, or any date
and time later directed by the Immigration Court, a removal order may be made
by the [IJ] in [their] absence, and [they] may be arrested and detained by the
INS.” The Petitioners, along with their attorney Carlos Spector, were also
personally served with written notice of the May 8, 2000, hearing. The notice
specified the new date and time of the hearing and warned that failing to appear
at the hearing, absent exceptional circumstances, could result in their arrest and
detention or in the entry of an in absentia removal order. Further, although
Spector withdrew as the Petitioners’ counsel of record prior to the May 8, 2000,
hearing, he asserted that both Djie and Mulyani had been notified of the
hearing’s date and time. The Petitioners’ unsworn and self-serving assertions
to the contrary are not supported by the record.           Therefore, the BIA’s

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determination that the Petitioners failed to demonstrate that they did not
receive the requisite notice is supported by substantial evidence, and the record
does not compel a contrary conclusion. See Chun v. INS, 40 F.3d 76, 78 (5th Cir.
1994).
      The Petitioners also contend that the Government failed to establish their
removability by clear, unequivocal, and convincing evidence. Specifically, they
argue that because the IJ did not record the hearings, there was no evidence
that they admitted the factual allegations in the Notices to Appear. According
to the Petitioners, they could not have admitted these allegations because they
did not speak English and were not provided with an Indonesian interpreter.
Further, the Petitioners argue that the IJ’s assertion that he relied on a single
Record of Deportable/Inadmissible Alien form (I-213) was erroneous and not
supported by the record. Because these issues were not raised before the BIA,
this court lacks jurisdiction to consider them in the instant petition for review.
See Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
      Finally, the Petitioners contend that their due process right to a competent
translation was violated by the IJ’s failure to provide them with an Indonesian
interpreter at their removal hearings. This court reviews due process challenges
de novo. Anwar v. INS, 116 F.3d 140, 144 (5th Cir. 1997).
      A review of the record shows that Mulyani did not need an interpreter
because she could communicate effectively in English. Although it appears that
Djie needed an interpreter, aside from his unsworn and self-serving declaration,
there is no evidence that an interpreter was not provided at the hearings.
Further, although transcripts of the hearings were not included in the
administrative record, transcripts are not normally prepared for appeals from
denials of motions to reopen in absentia proceedings. B OARD OF I MMIGRATION
A PPEALS P RACTICE M ANUAL 51 (2004).       The record does not show that the
Petitioners submitted a request for transcription or that they sought to review



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the tape recordings.   Therefore, the Petitioners have failed to establish a
violation of their due process right to a competent translation.
      Accordingly, the Petitioners’ petition for review is DENIED IN PART and
DISMISSED IN PART for lack of jurisdiction.




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