                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 11-4237
                                     ___________

                                MD RAZAUL KARIM,
                                           Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A079-120-170 )
                   Immigration Judge: Honorable Alberto J. Riefkohl
                     ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  June 1, 2012
   Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: June 06, 2012)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      MD Razaul Karim, a citizen of Bangladesh, entered the United States in May 1999

as a visitor. In October 2009, he was charged as removable for being in the United States

in violation of the law. On February 18, 2011, an IJ ordered Karim removed in absentia

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after he and his attorney missed a hearing. He filed a motion to reopen and rescind the

order which the government opposed. The IJ denied the motion. On appeal, the BIA

agreed that Karim had not shown exceptional circumstances and dismissed the appeal.

Karim, now proceeding pro se, filed a petition for review.

       We have jurisdiction under 8 U.S.C. § 1252. Our review of the in absentia

removal order is limited to the validity of the notice, the reasons Karim did not attend the

hearing, and whether he is removable. 8 U.S.C. § 1229a(b)(5)(D). Before the BIA,

Karim did not challenge the validity of the notice to appear or his removability. Thus, the

only issue before us is why Karim did not attend the hearing.

       A removal order entered in absentia may be rescinded by filing a motion to reopen

within 180 days if the alien demonstrates that he failed to appear because of exceptional

circumstances. 8 U.S.C. § 1229a(b)(5)(C)(i). The term “exceptional circumstances”

refers to “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.” 8 U.S.C. § 1229a(e)(1). We review the denial of a

motion to reopen a removal order entered in absentia for an abuse of discretion. Cabrera-

Perez v. Gonzales, 456 F.3d 109, 115 (3d Cir. 2006).

        Karim states that he was at the courthouse on the morning of his hearing but did

not attend because his counsel did not show up due to illness. He explains that he was

paralyzed with fear and did not know whether he could attend his hearing without his
                                               2
attorney. He asserts that he has limited English language skills and believed that aliens

who appear without counsel lose their cases.

       The IJ noted that Karim could have come to the courtroom on his own and the

hearing could have been adjourned. The BIA agreed that he had not shown exceptional

circumstances. This was not an abuse of discretion. There were no exceptional

circumstances beyond Karim’s control that kept him from attending his hearing. While

Karim claims that there was no Bengali interpreter in the court, it is not clear how he

would know that if he did not go to the courtroom. While we do not conclude that the

denial of the motion to reopen was an abuse of discretion, we are disturbed by the

conduct of Karim’s former attorney.1

       Given counsel’s unacceptable conduct, Karim may wish to consider filing a

motion to reopen based on ineffective assistance of counsel, complying with the

requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988).2 We note that


1
  The motion to reopen was filed on Karim’s behalf by the same attorney who had missed
the hearing. Counsel submitted an unsworn letter from his doctor stating that counsel had
called him on the morning of February 18, 2011, complaining of slight dizziness. The
doctor advised him to take water pills and rest. It was unacceptable for counsel to fail to
notify the Immigration Court or his client that he would be unable to make it to the
hearing. His condition of “slight dizziness” did not require any medical treatment beyond
water pills and rest. Counsel was physically able to call his doctor’s office. Thus, he
should have been able to call the Immigration Court and his client. Moreover, it is not
clear why counsel waited a month before filing the motion to reopen. Counsel did not
admit to any ineffectiveness in the motion to reopen. This attorney also represented
Karim before the BIA.
2
  The BIA noted that Karim had not raised a claim of ineffective assistance of counsel as
a basis for exceptional circumstances. It is not clear whether the BIA realized that Karim
was still represented by the same counsel who had missed the hearing.
                                              3
the BIA recently clarified that it does not consider an alien’s leaving the country under a

grant of advance parole as a “departure” triggering inadmissibility under 8 U.S.C.

§ 1182(a)(9)(B)(i)(II). See Matter of Arrabally and Yerrabelly, 25 I. & N. Dec. 771 (BIA

2012). Karim’s travels under a grant of advanced parole were the basis for the denial of

his application to adjust his status. The denial of his application led to his being placed in

removal proceedings. Given that this change in law appears favorable to Karim and may

affect his removability, we strongly encourage the Government to join in any motion to

reopen.

       For the reasons above, we will deny the petition for review.




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