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

                                                                   FILED
                                                                January 30, 2009
                                No. 08-60253
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

JANAISA DAIANA BARBOSA

                                            Petitioner
v.

MARK FILIP, ACTING U S ATTORNEY GENERAL

                                            Respondent


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                             BIA No. A98 402 137


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Janaisa Daiana Barbosa, a native and citizen of Brazil, petitions this court
for review of the Board of Immigration Appeal’s (BIA) order affirming the
immigration judge’s (IJ) order denying her motion to reopen removal
proceedings. When, as here, the BIA adopts the IJ’s decision, we may review the
IJ’s decision. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). A “highly
deferential abuse of discretion standard” applies in reviewing the BIA’s denial
of a motion to reopen. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000). We
will affirm the BIA’s decision as long as it is not capricious, without foundation



      *
      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should not be published and is not precedent except under the limited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.
                                  No. 08-60253

in the evidence, or otherwise so irrational that it is arbitrary, rather than the
result of any perceptible rational approach. See Singh v. Gonzalez, 436 F.3d 484,
487 (5th Cir. 2006).
      Barbosa, who was ordered removed in absentia after she failed to appear
for her removal hearing, maintains that her motion to reopen should have been
granted because the notice to appear (NTA), with which she was personally
served, was not translated in her native language of Portugese and that, as a
result, her due process rights were violated. Barbosa specifically complains that
she was not properly advised of her duty to provide the immigration court with
an address. Barbosa’s arguments regarding the NTA are without merit.
      Due process requires that notice be “‘reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the [removal]
action and afford them an opportunity to present their objections.’” Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). The requirements
regarding the notice at issue in the instant case, the NTA, are detailed at
8 U.S.C. § 1229(a)(1). Section 1229(a)(1) does not explicitly require that the NTA
be in any language other that English.
      The NTA in the instant case comported with the statutory and
constitutional requirements. The record reflects that Barbosa received oral
notice in Spanish of the time and place of the hearing as well as the
consequences of her failure to appear for the hearing. The record further
indicates that Barbosa acknowledged her receipt and understanding of the NTA
by signature. Furthermore, Form I-213, Record of Deportable/Inadmissible
Alien, indicates that Barbosa spoke and understood the Spanish language.
Based on these facts, the BIA found that Barbosa understood the warnings she
received. The BIA’s factual finding is supported by substantial evidence. See
Girma v. INS, 283 F.3d 664, 666 (5th Cir. 2002). As Barbosa was informed of
her duty to provide the immigration court with her address and failed to do so,
she was not entitled to notice of the removal hearing. 8 U.S.C. § 1229a(b)(5)(B).

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                                 No. 08-60253

      Barbosa further challenges the NTA was defective because it did not
specify the date and time of the hearing. Barbosa did not present this issue to
the BIA. She therefore has failed to exhaust administrative remedies and we
lack jurisdiction to consider her argument. See Wang v. Ashcroft, 260 F.3d 448,
452 (5th Cir. 2001).
      Barbosa additionally argues that the BIA and IJ abused their discretion
by not reopening her removal proceedings on the ground that she had shown
exceptional circumstances for not attending the hearing.            While she
acknowledges that her motion to reopen was not filed within the 180-day time
limit for filing a motion to reopen on this ground, she maintains that this time
limit should have been equitably tolled. Barbosa alternatively argues that the
time limit should be waived since she never receive a notice of hearing.
      Barbosa has not shown the exceptional circumstances necessary to be
entitled to reopen her removal proceedings.       Moreover, Barbosa has not
demonstrated rare and exceptional circumstances that might entitle her to
equitable tolling. See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) ;
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).         Nor has Barbosa
established that the time-limit should be waived based on her argument that she
never received notice of the hearing; Barbosa did not receive notice because she
did not provide the immigration court with her address as required.
Accordingly, Barbosa has not shown that the BIA abused its discretion by
denying her motion to reopen. See Lara, 216 F.3d at 496.
      Accordingly, Barbosa’s petition for review is DENIED.




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