                          UNPUBLISHED ORDER
                       Not to be cited per Circuit Rule 53




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                             Argued February 15, 2006
                              Decided June 26, 2006

                                      Before

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. DIANE S. SYKES, Circuit Judge

No. 05-2928

FARHAN KHAN,                                 Petition for Review of an Order of the
    Petitioner,                              Board of Immigration Appeals

      v.                                     No. A78-643-234

ALBERTO R. GONZALES,
    Respondent


                                    ORDER

       Farhan Khan, a Pakistani citizen, was ordered removed in absentia after
failing to respond to a Notice to Appear that charged him with overstaying his
visitor’s visa. More than two years later, Khan filed a motion to reopen the removal
proceedings. The IJ denied the motion, and the BIA dismissed Khan’s appeal.
Because the motion to reopen was untimely, we deny his petition for review.

                                 I. Background

      Khan entered the United States in 1999 as a nonimmigrant visitor for
pleasure, authorized to remain until June 2000. In July 2000 the INS received his
application for asylum and withholding of removal based on persecution he
No. 05-2928                                                                  Page 2

allegedly suffered as a member of the Mohjir Qomi Movement (MQM) political
party. In September 2000 the INS mailed Khan a Notice to Appear, which
instructed him to appear before an IJ on October 11, 2000. Khan apparently
received oral notice through an interpreter, as well as separate written notice, to
appear on January 26, 2001. He failed to appear at the January hearing, and the IJ
entered an in absentia order of removal directing his repatriation to Pakistan.

        Khan did not appeal that order to the BIA or take any other action until
September 2003 when he filed through counsel a motion with the IJ to reopen his
case and rescind the removal order. The general rule is that a motion to reopen
must be filed within 90 days, see 8 U.S.C. § 1229a(c)(7)(C)(i). Khan’s motion
claimed an exemption under 8 C.F.R. § 3.23(b)(4) (2000), which allows an alien to
file at any time based on materially changed conditions in the country to which he
will be removed. (Id.) (That regulation, later renumbered as 8 C.F.R.
§ 1003.23(b)(4), implements the statutory filing deadlines set out in 8 U.S.C.
§ 1229a(b)(5)(C)(i) and (ii).)

        All Khan said in his motion was that unspecified evidence of changed
conditions “is material and could not have been discovered or presented at the
previous proceeding due to the political developments that have occurred in
Pakistan in recent months.” Included with the motion was Khan’s own affidavit,
which is silent about changes in Pakistan, and an unsworn statement from his
sister, Almas Wasim Rizvi, a naturalized American citizen. Rizvi described Khan’s
political activity, his arrest on March 24, 1996, and the subsequent torture and
other abuse that he allegedly suffered at the hands of Pakistani police. She also
gave facts that purportedly show how Pakistan has become more dangerous for
Khan, such as the allegedly ongoing murders of MQM party members.

       Khan’s motion to reopen is silent about why he failed to appear at the
January 2000 hearing. He asserts in the accompanying affidavit that “a serious
illness” he thought was influenza prevented him from attending his hearing.
Because he could not afford medical treatment, he continues, “I remained in bed
and nursed myself back to health.” Khan further explains in his affidavit that he
did not know that he was required to contact the immigration court, and that he did
not have a phone number with which to do so. Khan does not specify in his affidavit
when he learned of the removal order, and says only that he first heard about it
when he consulted an attorney about how to obtain a visa based on his November
2002 marriage to a United States citizen. The attorney, Khan said, told him that he
should leave the United States and re-enter legally in order to obtain a valid visa.
According to his affidavit, Khan entered Canada in March 2003 and was
immediately detained. He asserts that he was expelled to the United States and
detained in August 2003, at which time he prepared his motion to reopen his case
No. 05-2928                                                                    Page 3

and rescind the order of removal. He offers no explanation for his failure to contact
the immigration court after he recovered from his illness and learned of the order.

      The IJ denied Khan’s motion, reasoning that he failed to meet the
requirements for reopening his case under 8 U.S.C. § 1229a(b)(5)(C). The IJ found
that Khan had been advised orally and in writing of the consequences of failing to
appear, that his proffered reason for not appearing did not qualify as an
“exceptional circumstance” that would excuse his failure to attend, and that his
motion was filed outside the 180-day period allowed for motions to reopen where
removal has been ordered in absentia, see 8 U.S.C. § 1229a(b)(5)(C)(i). The IJ also
noted that Khan’s motion presented no evidence “that could not have been
discovered or presented at his previously scheduled asylum hearing.”

       Khan appealed this decision to the BIA. In his brief, he alleged that he never
received notice of the in absentia order of removal, and argued that consequently
the time period for filing his motion to reopen should have been equitably tolled.
Khan conceded that he did receive notice that he must appear at his January 2001
hearing and of the consequences of failing to appear, but he argued that he was
never instructed what to do if extraordinary circumstances prevented him from
attending. He asserted that he became aware of the order in “mid-November of
2002,” and that the running of the 180-day period in which to file the motion to
reopen should have begun then.

       The BIA adopted the IJ’s reasoning and affirmed in a February 2004 order.
It specifically rejected Khan’s argument that the 180-day period was equitably
tolled since, according to the BIA, the record showed that a copy of the in absentia
removal order had been mailed to Khan’s address. And even if the motion had been
timely, the BIA held, he did not show that the illness he claimed to have suffered
was severe enough to constitute an “exceptional circumstance.” See 8 U.S.C.
§ 1229a(e)(1) (listing “serious illness” as an exceptional circumstance that allows an
applicant to apply under § 1229a(b)(5)(C) for rescission of an in absentia order of
removal). The BIA thus deemed Khan to have abandoned his claims to relief,
including his asylum application, as a consequence of failing to demonstrate
exceptional circumstances that could excuse skipping the January 2001 hearing.
The BIA added that Khan had not shown that conditions in Pakistan had changed
“such that he now has a new basis for that relief.” Finally, the BIA held that Khan
had missed the 90-day limitations period for seeking an adjustment of status based
on his marriage to a United States citizen, see 8 C.F.R. § 1003.23(b)(3), and that
because he was informed of the consequences of failing to appear he was not eligible
to have his case reopened in order to pursue that relief.
No. 05-2928                                                                      Page 4

                                     II. Analysis

       Khan’s argument has shifted several times over the history of this case. His
motion before the IJ focused on allegedly changed country conditions in Pakistan
and argued that they exempted him from the normal 180-day filing deadline, citing
8 C.F.R. § 3.23(b)(4) (2000). He alleged only in passing that he had not been given
notice of the in absentia order of removal. His brief on appeal to the BIA argued
that the lack of notice entitled him to equitable tolling of the 180-day period. His
brief before this court abandons the request for tolling, and frivolously contends
that a lack of notice exempts him from the deadline.

        Khan’s only basis here for characterizing his motion to reopen as timely is
the purported absence of proof in the record that he was properly served with the in
absentia order of removal. That omission, he says, should exempt him from the
filing deadline under 8 U.S.C. § 1229a(b)(5). But Khan’s point is irrelevant. Even
assuming that the in absentia order of removal was never mailed, Khan’s motion
was untimely. He argues that “any use of time limits to deny a motion to reopen an
in absentia order of removal [is] inappropriate” when the order was not properly
served. But that is incorrect. The statute Khan cites, see 8 U.S.C. § 1229a(b)(5),
gives an alien unlimited time in which to file a motion to reopen only if the alien
“did not receive notice in accordance with [8 U.S.C. § 1229(a)(1) or (2)]”, see 8 U.S.C.
§ 1229a(b)(5)(C)(ii). Section 1229(a) concerns the “notice to appear” used to initiate
removal proceedings. Subsection (a)(1) requires that a notice to appear include,
among other things, the nature, time, and place of the proceedings, the authority
under which they are conducted, and the consequences of failing to appear. That
subsection has nothing to do with an order of removal that might eventually issue
in proceedings triggered by a notice to appear. The same is true of subsection (a)(2),
which concerns only notice of a change in the time or place of a removal hearing.

       Our precedent also considers the sufficiency of notice of the hearing rather
than that of the subsequent order. See, e.g., Sabir v. Gonzales, 421 F.3d 456, 457
(7th Cir. 2005); Nazarova v. I.N.S., 171 F.3d 478, 482 (7th Cir. 1999) (“[D]ue process
requires notice reasonably calculated to provide actual notice of the proceedings and
a meaningful opportunity to be heard.”). Khan cites 8 C.F.R. § 1003.26(d) and
Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001), to support his argument, but he
mischaracterizes them; they also concern notice of the hearing, not of the order.
Khan similarly mischaracterizes Matter of M-S-, 22 I&N Dec. 349 (BIA 1998).
Matter of M-S- concerns the standards for reopening a case where the alien did not
receive notice of the consequences of failing to appear. And there is no dispute that
Khan did receive notice to appear at the hearing and of the consequences of failing
to appear; he conceded in his brief to the BIA that he received oral notification of
the hearing. Moreover, he concedes here that he also received written notice, and
No. 05-2928                                                                      Page 5

that the attached certificate of service acts “as self-authentication in the record to
verify proper service” of that notice. The petition for review is DENIED.
