                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-1988
                                   ___________

Santos Armonda Avelar-Portillo,         *
                                        *
            Petitioner,                 *
                                        * Petition for Review of
      v.                                * an Order of the Immigration
                                        * and Naturalization Service.
Immigration and Naturalization          *
Service,                                *       [UNPUBLISHED]
                                        *
            Respondent.                 *
                                   ___________

                          Submitted: November 3, 1999
                              Filed: November 8, 1999
                                  ___________

Before BEAM, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

      Santos A. Avelar-Portillo petitions for review of an order of the Board of
Immigration Appeals (BIA) denying his motion to reopen his deportation proceedings.
We affirm.

       Avelar-Portillo, a citizen of El Salvador, entered the United States without
inspection in February 1992. He filed an application for asylum in June 1996. On
September 3, the INS served him with an Order to Show Cause and Notice of Hearing,
notifying him to appear for his deportation hearing on October 3. The order included
a Certificate of Service, which bears Avelar-Portillo’s signature and thumb print.
Avelar-Portillo failed to appear at his deportation hearing, and on October 3, 1996, the
immigration judge ordered him deported.

       On August 15, 1997, Avelar-Portillo filed a motion to reopen or reconsider his
case, alleging that he was eligible for adjustment of status on the basis of his marriage
to a U.S. citizen, that he was eligible for asylum, that he had not received notice of his
deportation hearing, and that he failed to appear at his hearing because of “exceptional
circumstances.”

       The immigration judge denied the motion to reopen, and Avelar-Portillo appealed
to the BIA. The BIA dismissed the appeal, finding that the portion of the motion to
reopen based on exceptional circumstances was untimely, and that Avelar-Portillo
failed to establish that he did not receive proper notice of the hearing. In addition, the
BIA found that Avelar-Portillo failed to comply with the regulatory requirements for
filing a motion to reopen for new forms of relief.

       We review for abuse of discretion the BIA’s refusal to reopen an alien’s
deportation proceedings. See INS v. Doherty, 502 U.S. 314, 323-24 (1992); Feleke
v. INS, 118 F.3d 594, 597-98 (8th Cir. 1997). We conclude that the BIA did not abuse
its discretion in this case. Avelar-Portillo’s motion to reopen based on exceptional
circumstances was time-barred, as it was filed more than ten months after the order of
deportation. See 8 U.S.C. § 1229a(b)(5)(C)(i) (such motion must be filed within 180
days after date of order of deportation). As for the alleged failure to receive notice, we
note the Certificate of Service indicating that Avelar-Portillo in fact received personal
notice of the hearing. See Giday v. INS, 113 F.3d 230, 233 (D.C. Cir. 1997) (burden
on alien to demonstrate he did not receive notice; regulations require that alien file
affidavits or other evidence). To the extent Avelar-Portillo sought adjustment of status
based on his marriage, the request was time-barred. See 8 C.F.R. § 3.23(b) (motion


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to reopen for new forms of relief must be filed within 90 days of entry of order of
deportation).

      Accordingly, we affirm the decision of the BIA.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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