Olga Edelmira Zeron, Petitioner, v. Immigration and Naturalization Service, Respondent, 129 F.3d 129 (9th Cir. 1997)

MEMORANDUM^* 

Olga Edelmira Zeron, a native and citizen of Honduras, petitions for review of the decision of the Board of Immigration Appeals ("BIA") dismissing her appeal of the immigration judge's ("IJ") denial of her motion to reopen deportation proceedings. The IJ entered an order of deportation in absentia when Zeron failed to appear at the deportation hearing. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a),¹  and we deny the petition.

Zeron contends that the BIA abused its discretion by finding that exceptional circumstances beyond Zeron's control did not excuse Zeron's failure to appear at her deportation hearing. We disagree.

We review the denial of a motion to reopen for an abuse of discretion. See Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996). An order of deportation entered in absentia may be rescinded only if the petitioner demonstrates that she failed to appear because of exceptional circumstances. See 8 U.S.C. § 1252b(c) (3) (A) Exceptional circumstances are defined as "circumstances (such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien." 8 U.S.C. § 1252b(f) (2).

Zeron, in her declaration, stated that she failed to appear at the hearing because she overslept due to the drowsiness side effect of prescription medication. Based on these facts, the BIA did not abuse its discretion by dismissing Zeron's appeal for failure to establish exceptional circumstances. See 8 U.S.C. § 1252b(c) (3) (A); Sharma, 89 F.3d at 547.

PETITION FOR REVIEW DENIED.