[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-14991         ELEVENTH CIRCUIT
                                                    SEPTEMBER 29, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                          Agency No. A099-158-878

FRANKLIN NEWMAN GRANT,


                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                         ________________________

                    Petition for Review of a Decision of the
                         Board of Immigration Appeals
                         _________________________

                             (September 29, 2010)

Before CARNES, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Petitioner Franklin Newman Grant, through counsel, petitions this Court to
review the decision of the Board of Immigration Appeals. After Grant failed to

appear at his removal hearing, the Immigration Judge entered an order of removal

in his absence. Grant filed a motion to reopen his removal proceedings before the

IJ, arguing that that he could show exceptional circumstances for his failure to

appear. The IJ denied that motion, and the BIA affirmed. In his appeal to the BIA,

Grant also filed a motion to reopen his proceedings in order to allow him to pursue

an adjustment of status, and the BIA denied that motion as well. In this Court,

Grant contends (1) that the IJ and the BIA erred in finding that he failed to show

exceptional circumstances that would excuse his failure to appear at his removal

hearing and warrant the reopening of his removal proceedings; and, alternatively,

that (2) the BIA abused its discretion in declining to reopen his proceedings to

allow him to pursue adjustment of status.

      We review only the BIA’s decision, except to the extent that it expressly

adopts the IJ’s opinion. Al Najjar v. Ashcroft, 

, 1284 (11th Cir.

2001). Although the BIA in this case did not expressly adopt the IJ’s decision or

reasoning, it affirmed and agreed with the IJ’s decision that Grant did not show

exceptional circumstances, so we review the decisions of both the BIA and the IJ

on this point. See Prado-Gonzalez v. INS, 

, 632 (11th Cir. 1996).




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                                          I.

      We review the denial of a motion to reopen a removal order only for an

abuse of discretion. Montano Cisneros v. United States Att’y Gen., 

,

1226 (11th Cir. 2008). Our review is limited to determining whether there has

been an exercise of administrative discretion and whether that discretion has been

exercised in an arbitrary or capricious manner. 

      An alien who seeks to reopen a removal order that was entered in his

absence must show that his failure to appear was due to “exceptional

circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). “Exceptional circumstances” are

circumstances beyond the control of the alien, such as his own serious illness, or

the serious illness or death of his spouse, child, or parent. 8 U.S.C. § 1229a(e)(1).

Less compelling circumstances do not qualify. 

to reopen must be

“supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B).

      The BIA did not abuse its discretion in denying Grant’s motion to reopen his

removal proceedings. Despite Grant’s insistence that he honestly relied on the

assurances of an immigration officer that he should not leave Connecticut and that

his hearing would be relocated there, he failed to establish that such reliance

constituted an “exceptional circumstance” as defined by regulation. Although

Grant testified through his own affidavit that he relied on the immigration officer


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in not attending the hearing, the BIA did not act arbitrarily or capriciously in

rejecting that testimony, without more, in light of Grant’s past willful

misrepresenation to immigration officials when he entered the United States using

a passport with the name of another person. Grant also failed to submit any other

evidentiary support such as an affidavit from the immigration officer despite

having that officer’s phone number. Therefore, neither the IJ nor the BIA abused

its discretion in denying Grant’s motion to reopen because Grant could not show

that he failed to appear to due to exceptional circumstances.

                                           II.

      When filing a motion to reopen proceedings for the purpose of submitting an

application for relief, an alien is required to attach “the appropriate application for

relief and all supporting documentation.” 8 C.F.R. §§ 1003.2(c)(1), 1003.23(b)(3).

“A motion to reopen proceedings shall not be granted unless it appears to the

[BIA] that evidence sought to be offered is material and was not available and

could not have been discovered or presented at the former hearing.” 8 C.F.R. §

1003.2(c)(1).

      The BIA did not abuse its discretion in denying Grant’s motion to reopen his

proceedings because Grant did not establish a prima facie eligibility for adjustment

of status. He neither attached his application for adjustment of status nor presented


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evidence that was previously unavailable.

      DENIED.




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