IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 2, 2009

                                     No. 08-60351                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


VILMA YESENIA HERNANDEZ-GONZALEZ

                                                  Petitioner
v.

MARK FILIP, ACTING U.S. ATTORNEY GENERAL

                                                  Respondent



                        Petition for Review of an Order of the
                           Board of immigration Appeals
                                 BIA No. A94 772 031


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Vilma Yesenia Hernandez-Gonzalez was ordered removed at a hearing in
absentia on August 24, 2006. She moved to reopen the removal proceedings on
March 19, 2007, but the immigration judge denied the motion, and the Board of
Immigration Appeals affirmed.            Hernandez-Gonzalez petitions for review.
Finding no abuse of discretion, we deny the petition for review.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                            No. 08-60351

         We review decisions of the BIA regarding motions to reopen for abuse of
discretion.1 Because the BIA summarily affirmed the ruling of the IJ, it is the
IJ decision that we review.2 An IJ does not abuse his discretion in denying a
motion to reopen unless his decision is “capricious, racially invidious, utterly
without foundation in the evidence, or otherwise so irrational that it is arbitrary
rather than the result of any perceptible rational approach.”3
         Liberally construed, Hernandez-Gonzalez’s pro se brief argues that her
failure to appear at the hearing was because of exceptional circumstances. She
does not contest that she had notice of the hearing. The notice to appear that
she received comported with the statutory and constitutional requirements and
informed her of her duty to provide the immigration court with her address and
phone number.4 Because she refused to provide an address or phone number
to the immigration court, she was not entitled to notice of the date of her
removal hearing.
         Instead, Hernandez-Gonzalez contests that she filed a motion for change
of venue before the scheduled date of her removal hearing, to which the
immigration court did not respond until after the hearing.                       Despite this
shortcoming, Hernandez-Gonzalez cannot prevail because, as the IJ held, her
motion to reopen was untimely. The filing of a motion to reopen within 180 days
of a removal order is a condition precedent to considering whether there are
exceptional circumstances that justify recision.5 Hernandez-Gonzalez’s motion



         1
             Zhao v. Gonzales, 

, 304 (5th Cir. 2005).
         2
             Mikhael v. INS, 

, 302 (5th Cir. 1997).
         3
             

.
         4
             See 8 U.S.C. § 1229(a)(1)(F)(i).
         5
             See 8 C.F.R. § 1003.23(b)(4)(ii); Chen v. Gonzales, 157 F. App’x 739, 741 (5th Cir.
2005).

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                                       No. 08-60351

to reopen was filed March 19, 2007, over 180 days after the removal order on
August 24, 2006. To the extent that equitable tolling of the 180-day period
might be possible, this case does not involve “rare and exceptional
circumstances,”6 especially given that Hernandez-Gonzalez stipulates to
knowing as of November 10, 2006 that the removal order had issued.
     The petition for review is DENIED.




     6
         Oliveira v. Gonzales, 127 F. App’x 720, 723 (5th Cir. 2005).

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