dissenting:
Juan Antonio Perez was two hours late for his immigration hearing — so late that even his lawyer had given up and gone home. Perez concedes there were no exceptional circumstances. Nevertheless, the majority holds, he did not “fail to appear” because, apparently,1 the judge *776was leaving the bench but hadn’t yet left the courtroom when Perez arrived. This stretches Romani v. INS, 146 F.3d 737, 739-39 (9th Cir.1998), and Jerezano v. INS, 169 F.3d 613, 615 (9th Cir.1999), to the breaking point, and stuffs Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996), into a teapot. It also creates an unworkable construct. I must, therefore, part company.
In Jerezano, we invalidated an in absen-tia order of deportation when the delay was short — 15 or 20 minutes — and the IJ was still hearing cases when the alien arrived.2 169 F.3d at 614-15. Here, the delay was not short nor was the IJ hearing-cases. In Romani, the aliens were at the courtroom on time but were erroneously told by counsel’s assistant not to go in because their case had been decided. Ro-mani was not a “failure to appear” case because the Romanis were where they were supposed to be on time. 146 F.3d at 738. Perez was not, nor was he misdirected.
This case is far closer to Sharma, where the aliens arrived at the hearing between 45 minutes and 1 hour late due to traffic congestion and trouble finding a place to park. We concluded that these were not “exceptional circumstances” under 8 U.S.C. § 1252b(c)(3). Although we did not explicitly consider whether delay of this order of magnitude was a “failure to appear,” implicitly it was, for otherwise we would not have reached the issue of exceptional circumstances. See also Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir.2003) (holding that a four and one-half hour tardy appearance was a failure to appear).
Assuming that a little wiggle room is appropriate,3 the majority abandons Jere-zano’s tether to short delay and instead founds its new rule on a “late” arrival for an immigration hearing “while the IJ is still in the courtroom.” In this, it also jettisons the other lynchpin in Jerezano, that the IJ be still in the courtroom hearing cases when the alien arrives. And it takes no account of the fact that Perez’s late appearance was in form only; by then, Perez was in no position to respond on the merits because he was so late even his lawyer was no longer there.
Actually, Perez had no evident hope of succeeding on the merits. His papers suggest no reason why he should not be deported. So the decision here also departs from Singh v. INS, 295 F.3d 1037 (9th Cir.2002). There, we held that the BIA abused its discretion in refusing to reopen a case where the petitioner was two hours late, missed his hearing, and “denial [would have led] to the unconscionable result of deporting an individual eligible for relief from deportation.” Id. at 1039-40. We found Singh’s case exceptional because the petitioner “had no possible reason to try to delay the hearing.” Id. at 1040. Petitioners without a shot at success, on *777the other hand, have every reason to try for delay.
In sum, the majority opinion overrides Sharma and effectively overrides Jerezano and Romani as well. It ignores the ingredient found critical in Singh — that the petitioner was eligible for relief — in favor of an approach that allows the system to be gamed. Finally, it burdens the immigration courts with an uncertain obligation to hear “late” arrivals so long as the judge is in the courtroom.
I wouldn’t go down any of these paths. Those facing removal should show up on time and be ready to go forward when their case is called. At the very least, they should be in court within a few minutes of the scheduled time, or call in to explain that they will be late.
In any event, I do not believe the IJ abused his discretion in declining to reopen Perez’s in absentia order. Without exceptional circumstances to explain it, Perez arrived two hours, not just a few minutes, beyond the scheduled time for his appearance, and there is no evidence that Perez was in court, ready to go, while the judge was on the bench. Consequently, I would deny the petition.
. I say "apparently” because there are no declarations of any sort in the record about what actually happened. As the immigration judge (IJ) found in denying Perez’s motion to reopen, there is no evidence showing when Perez arrived at court, or what was going on when he got there. Not surprisingly, the reg*776ulations require motions to reopen to be supported by statements under oath and by other evidentiary material. 8 C.F.R. § 1003.23(b)(3). On this ground alone, the petition should be denied.
. The delay in the Fifth Circuit case upon which the majority relies was likewise short— 20 minutes. Alarcon-Chavez v. Gonzales, 403 F.3d 343, 346 (5th Cir.2005). In holding that there was no failure to appear but only "a slight tardiness,” the court made a point of noting that "[o]ur holding today will not require IJs to tolerate substantially tardy litigants.” Id.
. The cleanest rule would be to define failure to appear as not being present at the time noticed for hearing, if only one matter is scheduled, or as not being present when the particular matter is called, if more than one matter is on calendar for the same time. Of course, this would not mean that an IJ in a particular case, depending upon the circumstances presented to him, could not exercise his discretion to cut the late-comer slack.