Not for Publication in West's Federal Reporter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. 04-1514
ALICE KAGGWA,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.*
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Howard, Circuit Judges.
Emmanuel L. Muwonge and Emmanuel L. Muwonge & Associates, LLC
on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
David V. Bernal, Assistant Director, and Andrew C. MacLachlan,
Attorney, Office of Immigration Litigation, Civil Division,
Department of Justice, on brief for respondent.
June 3, 2005
*
Alberto Gonzales was sworn in as United States Attorney
General on February 3, 2005. We therefore have substituted
Attorney General Gonzales for John Ashcroft as the respondent.
See Fed. R. App. P. 43(c)(2).
Per Curiam. Petitioner Alice Kaggwa seeks review of a
Board of Immigration Appeals (BIA) order summarily affirming the
decision of an immigration judge (IJ) denying her motion to reopen
her asylum case. We deny the petition.
Kaggwa is a citizen of Uganda who came to the United
States on a six-month visa in September 1999. After her visa
expired, she remained in the United States and filed for asylum.
In January 2002, the Immigration and Naturalization Service (INS)
initiated removal proceedings against the petitioner for
overstaying her visa.1
On February 14, 2002, Kaggwa appeared before an IJ in
Boston, Massachusetts, where she was living at the time. She asked
for and received a continuance of the hearing until September 19,
2002. In March 2002, she relocated to Kansas City, Missouri, and
sought a change of venue of the immigration proceeding from Boston
to Kansas City. Her first attempt to change venue failed because
she did not properly serve the INS. She claims that she
subsequently refiled the change of venue request, but there is no
documentary evidence that she did so. In any event, Kaggwa was
never granted a change of venue.
1
On March 1, 2003, the INS ceased to exist as an agency within
the Department of Justice. Its enforcement functions were
transferred to the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).
Because the events at issue predate that reorganization, we refer
to the INS in this opinion.
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On September 15, 2002, the petitioner's sister died of
meningitis in Uganda. In an affidavit filed to accompany the
motion to reopen, the petitioner testified that she planned to
drive from Kansas City to Boston on September 18th to attend the
September 19th hearing which was scheduled to begin at 9:00 a.m.
But on the morning of September 17th, she alleges, she received
word that her sister had died. Kaggwa claims that, because of her
grief, she could not travel to Boston on September 18th as
previously planned. Instead, she asserts that she called the
immigration court on the morning of the hearing to inform it that
she could not attend because of the death in her family. The court
records indicate that the petitioner called to say that she lived
in Kansas City and could not attend court that day; the records do
not indicate whether she mentioned her sister's death. The IJ went
ahead with the hearing and, based on the information presented by
the INS, entered an in absentia order that the petitioner be
removed to Uganda.
After receiving notice of the removal order, the
petitioner filed the motion to reopen the proceedings, on the basis
of exceptional circumstances arising from her sister's death. The
IJ denied the motion because (1) there was insufficient evidence of
the sister's death, and (2) the petitioner should have allowed
herself more than one day of traveling time to drive from Kansas
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City to Boston. Kaggwa appealed to the BIA, which summarily
affirmed the IJ's order.
We review the BIA's denial of a motion to reopen for
abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323-24
(1994). Because the BIA summarily affirmed the IJ's decision, we
consider the IJ's decision directly. See Herbert v. Ashcroft, 325
F.3d 68, 71 (1st Cir. 2003). For a decision to survive the abuse
of discretion standard, the decision must "simply [provide] a
rational explanation" for its conclusion. Zhang v. INS, 348 F.3d
289, 293 (1st Cir. 2003).
An in absentia removal order may be reopened if a motion
to reopen is filed within 180 days after the date of the order and
the alien demonstrates that her failure to appear resulted from
exceptional circumstances. See 8 U.S.C. § 1229a(b)(5)(C). The
statute is directed to "exceptional circumstances (such as 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). The exceptional circumstances standard is a "fairly
tough one," Georceley v. Ashcroft, 375 F.3d 45, 51 (1st Cir. 2004),
and will be met in only "rare cases." Herbert, 325 F.3d at 72.
The government does not dispute that the petitioner's
motion was timely or that, at least in some circumstances, notice
of the death of a sibling just prior to a hearing could constitute
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an exceptional circumstance excusing the failure to appear.
Rather, it contends that the motion was properly denied because the
evidence supports the government's view that the petitioner did not
intend to appear regardless of her sister's death.
On the record before us, we cannot say that the IJ abused
her discretion in denying the motion to reopen. As stated above,
the immigration court records indicate only that, on the morning of
the hearing, Kaggwa called to say that she lived in Kansas City and
would not appearing in court that day. Cf. Georceley, 375 F.3d at
51 (affirming denial of a motion to reopen where the alien
belatedly informed the immigration court of the reason for the
absence); Lonyem v. United States Att'y General, 352 F.3d 1338,
1341 (11th Cir. 2003) (similar). Moreover, the petitioner's
asserted plan to drive from Kansas City to Boston in one day to
attend the 9:00 a.m. hearing was very risky, given the distance
between the cities. Under the strict standard of review that we
must apply, these facts adequately ground the IJ's decision not to
reopen the proceedings.2
Petition denied.
2
The petitioner also filed a motion for reconsideration which
the BIA denied. Some of the arguments in the petitioner's brief
relate to the BIA's ruling on the motion for reconsideration. But
the petitioner did not seek review of this ruling, and we are
therefore without jurisdiction to consider it. See Asaba v.
Ashcroft, 377 F.3d 9, 12 (1st Cir. 2004).
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