Case: 12-15309   Date Filed: 12/31/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 12-15309
                          Non-Argument Calendar
                         _____________________

                        Agency No. A097-959-627


CHRISTOPHER HARRISON,
                                                      Petitioner,


                                   versus


U.S. ATTORNEY GENERAL,

                                                      Respondent.


                       ________________________

                      Petition for Review of a Decision
                    of the Board of Immigration Appeals
                        ________________________
                             (December 31, 2013)



Before HULL, MARCUS, and HILL, Circuit Judges.
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HILL, Circuit Judge:

      Appellant Christopher Harrison petitions for review of the November 18,

2011, decision of the Immigration Judge (IJ), denying his motion to reopen to

rescind his in absentia order of removal which was affirmed without opinion by

the Board of Immigration Appeals (BIA), on September 21, 2012. He also claims

that the IJ did not give reasoned consideration to his affidavit.

      We find that the IJ did not abuse her discretion in concluding that Harrison’s

motion was untimely, and denying his motion to reopen. Also, as Harrison never

argued in his notice of appeal to the BIA that the IJ failed to consider his affidavit,

and did not file a brief with the BIA, this claim has not been administratively

exhausted. We have no jurisdiction to consider it. We deny Harrison’s petition in

part, and dismiss in part.

                                           I.

      Harrison, a native and citizen of Jamaica, was admitted into the United

States on or about November 4, 1999, as a nonimmigrant B1 visitor, with

permission to remain in the United States until December 3, 1999. On October 20,

2004, the Department of Homeland Security (DHS) served Harrison in person with

a Notice to Appear (NTA) charging him as removable pursuant to the Immigration

and Nationality Act (INA) § 237(a)(1)(B), as an alien who remained in the United




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States for a time longer than permitted. Harrison was ordered to appear before an

IJ in the Miami Immigration Court at 9:00 a.m. on February 2, 2005.1

       Harrison signed the NTA, acknowledging that he had been personally

served, and that he was given oral notice in English of the time and place of his

hearing and the consequences for failing to appear. He failed to appear at his

hearing. The government submitted evidence that he was removable. At the

hearing the IJ ordered Harrison removed in absentia to Jamaica, concluding that no

exceptional circumstances existed to excuse his failure to appear at his removal

hearing.

       Six years later, Harrison filed with the immigration court a motion to reopen

to rescind the in absentia order of removal. He claimed he never received notice

of the hearing. The IJ found this argument meritless as the certificate of service

indicated that he was personally served with the NTA on October 20, 2004, that he

signed the NTA, and was provided in English with oral notice of the time and

place of his hearing, and the consequences of failing to appear. The IJ found his

motion to reopen untimely.

       Harrison filed a notice of appeal, but no brief, with the BIA. The BIA

affirmed the decision of the IJ without an opinion. 8 C.F.R. § 1003.1(e)(4).

       1
          The NTA also stated that if Harrison failed to attend the hearing at the time and date
listed on the NTA, or any date later directed by the immigration court, a removal order could be
issued by the IJ in Harrison’s absence.

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                                               II.

       We review the denial of a motion to reopen for abuse of discretion. Jiang v.

U.S. Att’y Gen., 

, 1256 (11th Cir. 2009). Our review is limited to

whether the BIA’s determination was “arbitrary or capricious.” 

not

have jurisdiction to review a claim unless the petitioner has exhausted his

administrative remedies with respect to that claim. INA § 242(d)(1), 8 U.S.C. §

1252(d)(1). As the BIA summarily affirmed the IJ’s order without an opinion, we

review the IJ’s decision as the agency’s final order. See 8 C.F.R. § 1003.1(e)(4).2

                                               III.

       We find that the IJ did not abuse her discretion in denying Harrison’s motion

to reopen. See 

. The record is clear that Harrison signed

the NTA’s certificate of service, indicating that he was personally served on

October 20, 2004. Further, Harrison acknowledges on the signed NTA that he was

provided oral notice in English of the time and place of his hearing and of the

consequences for failing to appear. As Harrison received written notice of the

proceeding, the IJ did not abuse her discretion in determining that his motion to

reopen was untimely. As to this part of the appeal, we deny the petition.



       2
         A single BIA member may affirm an IJ’s decision without opinion, if the BIA member
determines the IIJ’s decision was correct, and that (1) the issues on appeal fall squarely within
existing BIA precedent, or (2) the issues raised on appeal are not so substantial that the case
warrants a written opinion. See 8 C.F.R. § 1003.1(e)(4).

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      As to Harrison’s argument that the IJ did not give reasoned consideration to

all of his evidence, in particular his affidavit, we dismiss that part of the petition as

Harrison failed to exhaust this argument before the BIA, and we have no

jurisdiction to consider it. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1).

      DENIED IN PART; DISMISSED IN PART.




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