
    Dong Thanh NGUYEN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
    No. 03-70027.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 15, 2004.
    Decided July 29, 2004.
    James Todd Bennett, Esq., El Cerrito, CA, for Petitioner.
    Regional Counsel, Western Region, Immigration & Naturalization Service, Lagu-na Niguel, CA, Thomas K. Ragland, U.S. Department of Justice, Washington, DC, for Respondent.
    Before B. FLETCHER, LEAVY, and BERZON, Circuit Judges.
   MEMORANDUM

Dong Thanh Nguyen (“Nguyen”), a native and citizen of Vietnam, petitions for review of dismissal of his appeal by the Board of Immigration Appeals (“BIA”) following the denial by the immigration judge (“IJ”) of his motion to reopen deportation proceedings conducted in absentia. We review for an abuse of discretion the denial of a motion to reopen, Celis-Castellano v. Ashcroft, 298 F.3d 888, 890-91 (9th Cir. 2002), and we deny the petition.

The facts and prior proceedings are known to the parties. The government concedes that Nguyen’s appeal to the BIA was timely. Nguyen’s bare assertion that he was “detained in the course of [drug] testing” at the probation office is insufficient to establish that he was in “State custody” within the meaning of 8 U.S.C. § 1252b(c)(3)(B) (1994). The statute requires a showing that the alien “did not appear through no fault of the alien.” Id. Nguyen failed to make such a showing.

Furthermore, we reject Nguyen’s argument that he has established “exceptional circumstances” within the meaning of 8 U.S.C. § 1252b(f)(2) (1994), now codified at 8 U.S.C. § 1229a(e)(l). The evidence does not establish that the circumstances that prevented Nguyen from appearing at his scheduled hearing in the Immigration Court were exceptional and beyond his control. See Celis-Castellano, 298 F.3d at 892.

PETITION FOR REVIEW DENIED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     