Al Jung Ho, Petitioner, v. Immigration and Naturalization Service, Respondent, 114 F.3d 1194 (9th Cir. 1997)

MEMORANDUM^* 

OVERVIEW

Petitioner seeks review of the dismissal by the Board of Immigration Appeals ("Board") of her appeal from an in absentia deportation order on the ground that she presented "exceptional circumstances" that excused her failure to appear. We have jurisdiction under 8 U.S.C. § 1105a(a). We hereby deny the petition.

ISSUE BEFORE THE COURT

Our review of decisions of the Board is limited to three issues, the second of which is before the court in the instant case: (1) the validity of notice provided to the alien; (2) the reasons for the alien's failure to appear at the proceeding; and (3) whether or not clear, convincing, and unequivocal evidence of deportability has been established. 8 U.S.C. § 1252b(c) (4). All other issues raised by the petitioner are not properly before this court and will not be considered.

EXCEPTIONAL CIRCUMSTANCES

The sole issue in a motion to reopen is whether an alien can demonstrate exceptional circumstances that excuse her failure to appear at the deportation hearing. 8 U.S.C. § 1252b(c) (3). The fact that petitioner has two American-born children is certainly compelling, but is not relevant to the sole issue before this court--her failure to appear.

Petitioner received notice of the hearing and failed to communicate with her attorneys about the matter. While her confusion may be understandable, the failure to communicate does not constitute "exceptional circumstances" under 8 U.S.C. § 1252b(f) (2). The Board properly denied petitioner's motion to reopen.

PETITION DENIED.