Afrasiabi

MEMORANDUM **

Petitioner-Appellant Fatolah Afrasiabi (“Afrasiabi”) appeals the denial of his habeas corpus petition challenging the deportation order entered against him in absentia when he failed to appear at a deportation hearing in San Francisco. Afrasiabi claims his due process rights were violated when the Board of Immigration Appeals (“BIA”) failed to find that new evidence Afrasiabi presented in his BIA appeal demonstrated “exceptional circumstances” such that the proceedings should be reopened. See 8 U.S.C. § 1252b(c)(3) (1995).

A BIA decision violates due process “if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Ramirez-Alejandre v. Ashcroft, 276 F.3d 517, 519 (9th Cir.2002). Here, Afrasiabi sought to present evidence to the BIA that he was prevented from attending the removal hearing because his wife was seriously ill and because Afrasiabi’s brother, a non-lawyer, had assured him that he did not have to attend the hearing and could simply file a motion for change of venue instead.

This new evidence was insufficient to warrant a finding of exceptional circumstances. The BIA addressed Afrasiabi’s claim that…