                                                                [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                   FILED
                                                          U.S. COURT OF APPEALS
                          ________________________          ELEVENTH CIRCUIT
                                                                 July 26, 2005
                                No. 05-12165                 THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                            Agency No. A75-328-027

DONALD SAMEDI,

                                                                         Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________

                                 (July 26, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

      Donald Samedi, a native and citizen of Haiti, through counsel, petitions for

review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) order denying Samedi’s motion to reopen and rescind

an in absentia removal order. Because Samedi’s removal proceedings commenced

after April 1, 1997, the permanent rules of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996)

(“IIRIRA”), apply. On appeal, Samedi argues that the BIA erred in affirming the

IJ’s denial of his motion to reopen because he ordered removed in absentia

without receiving proper notice of the November 13, 1997, hearing.

      When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning,

[this court] review[s] the IJ’s decision as well.” Id. Here, we will review both

decisions because the BIA adopted the IJ’s decision.

      We review the denial of a motion to reopen for an abuse of discretion.

Lonyem v. U.S. Attorney Gen., 352 F.3d 1338, 1340 (11th Cir. 2003). Judicial

review is limited to determining “whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or

capricious.” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985)

(quotation and citation omitted). “The BIA abuses its discretion when its decision

provides no rational explanation, inexplicably departs from established policies, is

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devoid of any reasoning, or contains only summary or conclusory statements.”

Mickeviciute v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003) (persuasive authority)

(quotations and citations omitted).

      Any alien who, after written notice has been provided to the alien or the

alien’s counsel of record, does not attend a proceeding shall be ordered removed

in absentia if the government establishes by “clear, unequivocal, and convincing

evidence” it gave written notice and the alien is removable under the standards set

forth in the INA. INA § 240(b)(5)(A), 8 U.S.C. § 1229a(b)(5)(A). An in absentia

removal order may be rescinded if (1) within 180 days after entry of the order, the

alien moves to reopen and demonstrates that his failure to appear was because of

exceptional circumstances, or (2) the alien moves to reopen at any time and

demonstrates that he did not receive proper notice. INA § 240(b)(5)(C)(i) and (ii),

8 U.S.C. § 1229a(b)(5)(C)(i) and (ii). Exceptional circumstances include

circumstances beyond the control of the alien, such as “serious illness of the

alien,” but do not include “less compelling circumstances.” 8 U.S.C. §

1229a(e)(1).

      To the extent that Samedi argues that his failure to appear at the November

13, 1997, hearing was due to exceptional circumstances, and thus relies on INA §

240(b)(5)(C)(i), the record shows that Samedi’s second motion to reopen was

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time-barred because he filed it more than 180 days after the IJ’s decision.

Additionally, because Samedi did receive proper notice of the November 13, 1997,

hearing, the BIA did not abuse its discretion when it affirmed the IJ’s denial of

Samedi’s motion to reopen pursuant to INA § 240(b)(5)(C)(ii).

      After a careful review of the entire record, as well as the parties’ respective

briefs, we find no discernable error and hold that the BIA’s decision affirming the

IJ’s ruling was not an abuse of discretion.

      PETITION DENIED.




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