                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                                                                           April 7, 2003
                  IN THE UNITED STATES COURT OF APPEALS
                                                                     Charles R. Fulbruge III
                            FOR THE FIFTH CIRCUIT                            Clerk



                                   No. 02-60409
                                 Summary Calendar


      OSCAR MANUEL GUZMAN,

                                                    Petitioner,

                                      versus

      IMMIGRATION AND NATURALIZATION SERVICE,

                                                    Respondent.


                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                             (BIA No. A29-896-216 )
          _______________________________________________________


Before REAVLEY, BARKSDALE and CLEMENT, Circuit Judges.

PER CURIAM:*

      Oscar Manuel Guzman, a native and citizen of El Salvador, petitions for

review of a final order of deportation entered by the Board of Immigration Appeals

(BIA). The Immigration Judge (IJ) denied Guzman’s Motion to Reopen


      *
        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should not be published and is not precedent except under the limited circumstances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.
Deportation Proceedings held in absentia when Guzman was 13 years old. The BIA

dismissed Guzman’s appeal from that decision. We affirm the decision of the BIA

and deny the petition for review for the following reasons:

1.    In immigration cases, we review only the decision of the BIA if it conducts a

      de novo review of the administrative record. Carbajal-Gonzalez v. INS, 78

      F.3d 194, 197 (5th Cir. 1996). The BIA’s denial of a motion to reopen is

      usually reviewed for abuse of discretion because of the Attorney General’s

      broad authority to deny such motions. See Ogbemudia v. INS, 988 F.2d 595,

      600 (5th Cir. 1993).

2.    Deportation proceedings against Guzman commenced on January 17, 1990.

      Accordingly, the in absentia proceedings were governed by Section 242(b) of

      the Immigration and Nationality Act, 8 U.S.C. § 1252(b) (1990) (amended

      1996). That section provides, in relevant part:

             If any alien has been given a reasonable opportunity to be
             present at a proceeding under this section, and without
             reasonable cause fails or refuses to attend or remain in
             attendance at such proceedings, the special inquiry officer
             [immigration judge] may proceed to a determination in like
             manner as if the alien were present.

      Id.

3.    An alien who seeks to reopen proceedings held in absentia under this section


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     must demonstrate reasonable cause for his failure to appear. See In re Haim,

     19 I. & N. Dec. 641, 642 (BIA 1988). He must also meet the normal

     standards of a motion to reopen. See Wellington v. INS, 108 F.3d 631, 635

     (5th Cir. 1997).

4.   Motions to reopen must “be supported by affidavits and other evidentiary

     material.” 8 C.F.R. §§ 3.2(c)(1) (2002). In the case of a motion to reopen

     deportations proceedings held in absentia, the filing must be supported by

     affidavits or other evidentiary material that support the existence of a

     reasonable cause for the alien’s failure to appear. The unsupported assertions

     of counsel are not evidence of the facts asserted. See INS v. Phinpathya, 464

     U.S. 183, 188 n.6 (1984), superceded by statute on other grounds as stated by

     INS v. Hector, 479 U.S. 85, 90 n.6 (1986); In re Ramirez-Sanchez, 17 I. &

     N. Dec. 503, 506 (BIA 1980).

5.   Guzman did not submit any affidavits or evidence with his motion to reopen

     explaining his failure to attend the deportation hearing. Counsel’s arguments

     about the difficulties his Spanish-speaking mother faced bringing Guzman to

     the proceedings 320 miles from their home are not evidence of such

     difficulties. Even if these statements were evidence, Guzman’s mother

     traveled to Harlingen, Texas, to obtain Guzman’s release from INS detention

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     a few months before the scheduled hearing. Counsel has not explained what

     difficulties arose in that time period which would have prevented Guzman’s

     mother from making the same trip on the scheduled hearing date. In fact,

     Guzman does not argue that he did not have actual notice or that he or his

     mother made an unsuccessful attempt to attend the hearing. Cf. In re S-A-,

     21 I. & N. Dec. 1050, 1051 (BIA 1997) (“The applicant's affidavit contains

     the general assertion that traffic prevented him from reaching his hearing on

     time. There is no detail that would enable us to meaningfully evaluate his

     claim.”).

6.   The administrative record does demonstrate, however, that Guzman was 13

     years old when the order of deportation was entered. Standing alone, this is

     insufficient evidence of reasonable cause for failure to appear. We find the

     BIA’s recent decision in In re Gomez-Gomez, 23 I. & N. Dec. 522 (BIA

     2002), instructive. In that case, the Board determined that a child’s age

     alone is insufficient to establish exceptional circumstances for her failure to

     appear at a deportation proceeding:

           The Immigration Judge's holding effectively means that no alien
           under the age of 14 could ever be deported in absentia (at least
           absent the assignment of an adult guardian to each such alien).
           Even if the minor alien received proper notice of the hearing, no
           one would bear the responsibility for the alien's subsequent

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           appearance, a burden that could also not be placed upon the
           minor alien. If that were Congress's intent . . . the statute that
           mandates entry of an in absentia order when an alien fails to
           appear[] would presumably contain such an exception.

     Id. at 528 (citations omitted); see also In re Ponce-Hernandez, 22 I. & N.

     Dec. 784 (BIA 1999) (determining that a 15 year-old alien who was properly

     served could be ordered to be deported in absentia). We recognize that,

     unlike Gomez-Gomez, Guzman need not show exceptional circumstances for

     his failure to appear because the statute in effect at the time his order of

     deportation was entered only required a showing of reasonable cause.

     Nevertheless, if Congress intended to provide an exception for in absentia

     proceedings against minor aliens in that prior version of the statute, it could

     have easily done so. Nothing suggests that Congress intended to exempt

     minor aliens from the requirement of showing reasonable cause.

7.   In light of the foregoing, we find that the BIA did not abuse its discretion by

     denying Guzman’s Motion to Reopen. Accordingly, Guzman’s Petition for

     Review is DENIED.




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