                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 04-2431

                              XIE YUN CHEN,

                                Petitioner,

                                      v.

               ALBERTO GONZALES, ATTORNEY GENERAL,

                                Respondent.


              ON PETITION FOR REVIEW OF AN ORDER OF

                 THE BOARD OF IMMIGRATION APPEALS


                                   Before

                          Boudin, Chief Judge,

                Lipez and Howard, Circuit Judges.


     Robert F. Sacchetti on brief for petitioner.
     John Andre, Senior Litigation Counsel, Department of Justice,
Civil Division, Office of Immigration Litigation, Peter D. Keisler,
Assistant Attorney General, Civil Division, and Donald E. Keener,
Deputy Director, on brief for respondent.



                               May 20, 2005
          Per Curiam. Xie Yun Chen ("Chen"), a Chinese citizen who

unlawfully entered the United States in July 1989, applied for

permanent resident status in June 1994.       The Immigration and

Naturalization Service ("INS"), whose functions have since been

assumed by the Department of Homeland Security, denied Chen's

application on June 29, 1994 and instituted deportation proceedings

against him in November of the same year.

          After two continuances--the first to permit Chen to

obtain counsel, the second to allow his counsel time to adequately

prepare--Chen appeared in immigration court on August 16, 1995. He

conceded deportability but requested relief in the form of an

adjustment of status under the Chinese Student Protection Act of

1992, 106 Stat. 1969, or voluntary departure, and the proceeding

was continued until April 8, 1996.

          At the hearing's close, the immigration judge noted that

there was not an interpreter present to provide Chen (who does not

speak English) with oral notice of his next hearing date.1   Instead

Chen was provided with written notice and a written admonition

citing the consequences of a failure to appear on the April date.

When neither Chen nor his counsel appeared at the April 1996

hearing, the immigration judge entered an order in absentia denying


     1
      Such oral notice, in a language understood by the alien,
forecloses an alien from pursuing further discretionary relief from
an in absentia order of deportation for five years thereafter. See
8 U.S.C. § 1252b(e)(1) (1994 & Supp. I 1996) (current version at 8
U.S.C. § 1229a(b)(7) (2000)).

                               -2-
Chen's requests for relief and ordering that he be deported to

China.

              In September 1996, Chen filed a motion in the immigration

court seeking relief from its deportation order.                    Chen requested

that   the    court   reopen     the   case   to    permit    him     to    apply   for

previously        unconsidered     relief     from        deportation;        in    the

alternative, he sought rescission of the deportation order.                        These

two remedies have different requirements for relief.                   See In Re M-

S-, 22 I. & N. Dec. 349, 353-55 (B.I.A. 1998).

             To reopen and apply for new relief, Chen needed to set

forth, inter alia, a prima facie case of his entitlement to the

requested relief.       In Re Gutierrez-Lopez, 21 I. & N. Dec. 479, 482

(B.I.A. 1996).        To seek rescission, Chen needed either to file a

motion within 180 days of the in absentia order showing that his

failure      to   appear   at    his   hearing      was    due   to    "exceptional

circumstances" beyond his control, or to file a motion at any time

showing that he had not received notice of the hearing or that he

had been in federal or state custody and failed to appear through

no fault of his own.        See 8 U.S.C. § 1252b(c)(3) (1994 & Supp. I

1996) (current version at 8 U.S.C. § 1229a(b)(5)(C)); 8 C.F.R. §

3.23(b)(4)(iii)       (1997);     Motions     and    Appeals     in        Immigration

Proceedings, 61 Fed. Reg. 18,900, 18,908 (April 29, 1996).

             In support of rescission, Chen argued that certain facts

surrounding his failure to appear--he had neglected to write down


                                        -3-
the date of the April hearing in an appointment book and his

attorney's records system had experienced "a serious computer

glitch"--constituted "exceptional circumstances."     In support of

reopening for new relief, Chen claimed that he was eligible for an

adjustment of status under 8 U.S.C. § 1255(i) (1994 & Supp. I

1996).    The INS did not oppose Chen's motion.

            In February 1997, the immigration judge construed Chen's

motion as one solely for rescission and denied it on two grounds:

first, that it had been filed over 180 days after the April

decision and was thus untimely; and second, that the facts alleged

did not constitute "exceptional circumstances."    Chen then sought

review before the Board of Immigration Appeals.

            In a June 2000 decision, the Board dismissed Chen's

appeal.    With regard to rescission, the Board noted that although

the immigration court's timeliness holding might have been error

(Chen's motion was marked with two filing dates--one in September

and another in October), Chen's excuses for missing the April

hearing did not rise to "exceptional circumstances."    With regard

to reopening for previously unconsidered relief, the Board held

that Chen had not established a prima facie entitlement to relief

because he had not provided any evidence that his visa applications

had been approved.

            Almost four years later, in April 2004, Chen moved for

the Board to reopen his deportation proceedings, claiming that a


                                 -4-
subsequent     change   in   the    law    had   made   him   eligible    for   an

adjustment of status (and pointing to his efforts to obtain such an

adjustment).      The Board denied Chen's motion, holding that it was

out of time because it had not been filed within 90 days of the

Board's previous decision in June 2000.             Chen now appeals to this

court to review the Board's refusal to reopen.

              As a preliminary matter, it is somewhat uncertain whether

Chen's 2004 motion sought to reopen the Board's 2000 decision or

the immigration court's initial 1996 decision.                   Regardless, a

motion to reopen ordinarily must be filed within 90 days.                8 C.F.R.

§§    1003.2(c),    1003.23(b)(1)         (2004);   see   also    8    U.S.C.    §

1229a(c)(6)(C)(i).      Chen notes, however, that this deadline does

not apply when an alien seeks to rescind a deportation order that

was issued at an in absentia hearing of which the alien did not

have notice.      See 8 C.F.R. §§ 1003.23(b)(4)(iii) (2004).

              It is quite unclear whether this regulation even applies

to motions before the Board, rather than solely to motions before

the immigration court.       See 61 Fed. Reg. 18,903.         Compare 8 C.F.R.

§    1003.2   ("Reopening    or    reconsideration      before   the   Board    of

Immigration Appeals"), with 8 C.F.R. § 1003.23 ("Reopening or

reconsideration before the Immigration Court").                  But either way

Chen admits that he--or at least his lawyer--received written

notice in English of the April hearing.             He argues on appeal that

this does not suffice for "actual or constructive notice" when his


                                      -5-
lawyer subsequently failed to notify him of the hearing; but Chen

has not claimed ineffective assistance of counsel.       Chen may well

have trusted his lawyer to keep him apprised of the hearing date,

but in this case written notice was provided--whether to Chen

himself or his attorney--which is enough to foreclose relief under

1003.23(b)(4)(iii).     See   8   U.S.C.    §   1229a(b)(5)(C);   id.   §

1229(a)(1); see also 8 C.F.R. §     1292.5 (2004).

          The main case upon which Chen relies, In Re M-S-, 22 I.

& N. Dec. 349, is not to the contrary.      Chen makes much of the fact

that both that case and his involved in absentia hearings without

prior oral notice in the alien's own language, and that M-S- (like

Chen) sought newly available relief.       But M-S- filed her motion to

reopen within the ordinary 90-day period.       Id. at 350.   In Re M-S-

does hold that aliens who are subject to in absentia hearings

without prior oral notice in their own language may move to reopen

deportation proceedings in order to apply for newly available

relief.   Id. at 356.   But the case contains no suggestion that a

lack of oral notice suffices to exempt an alien from the ordinary

time limits on motions to reopen.

          Finally, we have no authority to pass now upon any claim

by Chen that his earlier motion to reopen proceedings satisfied the

exceptional circumstances test or made out a prima facie case for

relief, and thus was denied in error.      To raise those issues, Chen




                                  -6-
had to take a timely appeal from the Board's June 2000 decision

rejecting that argument; he did not do so.

          Affirmed.




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