USCA1 Opinion
April 2, 1992 [NOT FOR PUBLICATION]
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No. 91-2234
NEVILLE CAMERON,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICES,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Neville E.A. Cameron on Motion in Opposition thereto.
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Stuart M. Gerson, Assistant Attorney General, Robert
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Kendall, Jr., Assistant Director, and Charles E. Pazar, Office of
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Immigration Litigation, Civil Division, Department of Justice, on
Motion to Summarily Dispose of Petition for Review.
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Per Curiam. The I.N.S. has moved for summary
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disposition of this petition for review of a deportation
order entered after petitioner failed to appear for a
hearing. We conclude the deportation order should be
summarily affirmed.
I.
In June 1989, petitioner was served with a notice to
show cause why he should not be deported under 8 U.S.C.
1251(a)(4) (1988) (authorizing deportation of an alien
convicted of a crime of moral turpitude committed within five
years after entry and sentenced to prison for a year or
more). The notice alleged that petitioner had been convicted
of burning a dwelling house and had been sentenced to five
years in prison.
Initially, petitioner was represented by Attorney
Stickney, whom he retained in March 1990. After three
months, however, Attorney Stickney moved to withdraw stating
that petitioner had failed to appear for appointments, answer
phone messages, or respond to a certified letter requesting
immediate contact. After several continuances, a hearing was
scheduled for July 10, 1990. On that day, petitioner's
lawyer, Attorney Visram, asked for a further continuance
which was granted. At the next hearing (August 14, 1990),
Attorney Visram appeared (petitioner did not) and moved to
withdraw, stating that petitioner had failed to appear for
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appointments and had failed to appear for the present hearing
despite promising to do so. Consequently, counsel was unable
to represent him. Counsel was allowed to withdraw. The
deportation hearing then proceeded in petitioner's absence.
The government introduced documentation showing that
petitioner had entered the country on October 26, 1982, that
he had been convicted for burning a dwelling on October 17,
1987, and that he had received a five year sentence for the
offense. The immigration judge concluded petitioner was
deportable and ordered him deported to Jamaica.
Petitioner appealed to the Board of Immigration Appeals.
He contended that he had not appeared at the August 14, 1990
hearing because of an ulcer attack, had notified Attorney
Visram's secretary of the problem, had been assured by the
secretary that Attorney Visram would appear and obtain a
continuance, and had later spoken with Visram only to be told
that Visram's refusal to represent petitioner was because of
nonpayment of a bill.
The Board concluded that under the circumstances then
present, the immigration judge had properly conducted the
deportation hearing in absentia when petitioner failed to
appear at the hearing. 8 U.S.C. 1252(b) (if alien fails to
attend a hearing without reasonable cause, the proceeding may
be conducted in his absence). As for petitioner's new
allegations of an ulcer attack and counsel malfeasance, the
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Board noted that petitioner could have moved to reopen the
deportation proceeding in order to establish the alleged
facts. A motion to reopen, however, must be "supported by
affidavits or other documentary evidence." 8 C.F.R.
103.5(a)(2).1 The Board decided not to remand in order to
permit petitioner to attempt to establish the alleged facts
for two reasons. First, petitioner had not supported his
allegations by affidavit or documentary evidence. Second,
petitioner's credibility was suspect. The record disclosed
complaints from not one but two separate counsel of
petitioner's failure to cooperate. Petitioner's account of
having spoken to counsel's secretary prior to the hearing
directly contradicted counsel's statement at the hearing that
counsel had been unable to communicate with petitioner. The
Board dismissed petitioner's appeal.
II.
Petitioner's two fold response in this court to the
I.N.S.'s motion for summary disposition was to state that his
petition for review was timely filed and to ask for more time
for briefing in view of family problems and incarceration.
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1. The regulation reads as follows:
(2) Requirements for motion to reopen. A
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motion to reopen must -
(i) State the new facts to be
proved at the reopened
proceedings, and
(ii) Be supported by affidavits
or other documentary evidence.
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He has failed to even hint, however, at any viable challenge
to the deportation order, and we see none. The statutory and
regulatory provisions are straightforward. The immigration
judge was authorized to hold a deportation hearing in
petitioner's absence, 8 U.S.C. 1252(b), deportation was
authorized under 8 U.S.C. 1251(a)(4) (1988) on the evidence
presented, and petitioner failed adequately to document
reasonable cause for failure to attend the deportation
hearing. Cf. Ghosh v. Attorney General, 629 F.2d 987, 989
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(4th Cir. 1980) ("It is not an abuse of discretion to deny a
motion to reopen deportation proceedings when the motion is
not supported by proper affidavits or other evidentiary
materials."). In these circumstances, we affirm the Board's
order and deny petitioner's request for more time to respond.
Affirmed.
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