USCA1 Opinion
August 5, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2384
ISMAILA ABDULLAH ADAMU,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
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Before
Torruella, Selya and Cyr,
Circuit Judges.
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Ismaila A. Adamu on brief pro se.
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Frank W. Hunger, Assistant Attorney General, Robert Kendall, Jr.,
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Assistant Director, and Karen Fletcher Torstenson, Attorney, Office of
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Immigration Litigation, Civil Division, U.S. Department of Justice, on
brief for respondent.
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Per Curiam. This is a petition for review of two
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decisions of Board of Immigration Appeals (BIA). The first
decision affirmed the decision of the immigration judge
denying petitioner's motion to reopen the proceedings. The
BIA's second decision denied an application for reopening
filed directly with it. Both motions for reopening concerned
the immigration judge's order of deportation entered after an
in absentia hearing.
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I.
_
Petitioner Ismaila Abdullah Adamu, a native of
Ghana and a citizen of Nigeria, was admitted to the United
States as a visitor for pleasure for six months. After
overstaying this time-limit, the Immigration and
Naturalization Service (INS) issued an order to show cause
why petitioner should not be deported. See 8 U.S.C.
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1251(a)(2) (current version at 8 U.S.C. 1251(a)(1)(B)). An
initial deportation hearing took place on December 18, 1990;
at this time, petitioner denied deportability. As a result,
the immigration judge continued the hearing until February
22, 1991, orally notifying petitioner of this date. When
petitioner failed to appear at the hearing without indicating
any reason for his nonappearance, the immigration judge held
an in absentia hearing, see 8 U.S.C. 1252(b), and ordered
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petitioner deported as charged.
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Almost two years later, on April 2, 1993,
petitioner filed a motion to reopen. He stated that on the
way to the INS office in Boston, on April 26, 1991 (the date
set for petitioner's deportation), his car had broken down.
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By the time he reached Boston, the INS office was closed for
the day. He also asserted that the notice to surrender for
deportation had been sent to the wrong address and that he
never had received it. He then requested permission to file
applications for political asylum and withholding of
deportation.
The immigration judge denied the motion to reopen
on April 20, 1993. He determined that petitioner had failed
to establish reasonable cause for his absence. Specifically,
the judge found that car trouble on April 26, 1991 did not
relate to, or provide cause for, petitioner's absence from
the deportation hearing scheduled for February 22, 1991.
Petitioner filed a notice of appeal with the BIA on July 12,
1993.
In his brief on appeal, petitioner amplified the
allegations contained in the April 2, 1993 motion to reopen.
He averred that he had attended the December 18, 1990 hearing
with an official -- Reverend Harley -- from the Tabernacle
Baptist Church in Providence. However, Reverend Harley could
not accompany him to the February 22nd hearing. Instead,
petitioner was given $5.00 for gas to attend this hearing.
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In an affidavit appended to the brief, Reverend Harley
confirms this last statement. Petitioner further asserted
that his car engine had "seized" while enroute to Boston and
that after it cooled down, he had proceeded on his way. When
he arrived, the INS offices were closed.
According to petitioner, nothing further happened
until March 1993 when police stopped him during a traffic
check and informed him of an immigration warrant for his
arrest. Once in the custody of the INS, petitioner stated
that he was given the April 26, 1991 letter concerning his
deportation date. His erroneous referral to April 26th
(instead of February 22nd), he averred, was the result of
having been handed this letter. He reiterated his claim that
all correspondence from the INS had been mailed to the wrong
address.
The BIA affirmed the decision of the immigration
judge on October 20, 1993. It first pointed out that
petitioner had not provided an affidavit sworn under the
penalties of perjury but rather had made only vague
statements concerning the breakdown of his car. As a result,
the BIA concluded that petitioner had not submitted
"probative evidence establishing reasonable cause for his
absence." The BIA also stated that petitioner had failed to
present documentary evidence to explain how he had come to
mistakenly refer, in his motion to reopen, to the deportation
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date of April 26, 1991. Further, the BIA described as
irrelevant Reverend Harley's affidavit referring to the money
for gas. Finally, the BIA expressed doubt concerning
petitioner's involvement with a Baptist Church when he had
stated in his asylum application that he was a Moslem. It
then dismissed the appeal.
In response, petitioner filed a motion for
reconsideration. In it, he explained his involvement in the
Baptist Church. He then recited that he had timely appeared
at four other hearings with the help of Reverend Harley. As
for his failure to attend the February 22, 1991 hearing,
petitioner gave the following account. On the way to Boston,
petitioner drove first to Providence to obtain money for gas
from Reverend Harley. Once on the highway, petitioner
noticed smoke coming from under the hood of his car. At this
time, it was approximately 2:00 p.m. He stopped and
discovered that there was no water in the radiator. A
passerby offered to help; he drove petitioner to a gas
station to get water and returned with petitioner to his car.
By this time, it was 3:15 p.m.
Due to traffic, petitioner did not arrive at the
INS office until 4:50 p.m. Petitioner stated that he had
tried to gain access to the INS offices but was stopped by
security guards from entering the building. Finally,
petitioner averred that he had returned to Boston on Monday,
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February 25, 1991 and was informed that he would be receiving
a letter with instructions. As he had stated in his brief,
nothing happened until about two years later, when petitioner
was stopped at a traffic check and told that there was an
outstanding immigration warrant for his arrest for failure to
surrender for deportation.
The BIA treated petitioner's motion as requesting
reopening. It then stated that it did not find petitioner's
explanation concerning the factual discrepancies in his
account to be persuasive. Further, the BIA noted that
petitioner's account still was not in the form of an
affidavit. Finally, the BIA concluded that the facts recited
by petitioner in the motion could have been presented either
in the motion to reopen filed with the immigration judge or
in the brief filed on appeal to the BIA. It therefore denied
the motion. This petition for review ensued.
II.
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We review denials of motions to reopen such as the
ones before us under the abuse-of-discretion standard. See
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INS v. Abudu, 485 U.S. 94, 104-05 (1988); Gando-Coello v.
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INS, 888 F.2d 197, 199 (1st Cir. 1989) (per curiam). We will
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uphold such discretionary actions unless they were arbitrary,
capricious, had no rational explanation, did not follow
established policies, or were based on impermissible grounds
such as race. See Thomas v. INS, 976 F.2d 786, 789 (1st Cir.
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1992) (per curiam); LeBlanc v. INS, 715 F.2d 685, 693 (1st
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Cir. 1983).
A. The BIA's October 20, 1993 Decision.
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The BIA, in this decision, upheld the denial by the
immigration judge of petitioner's motion to reopen the
proceedings. The BIA determined that petitioner had not
shown cause for his failure to appear at his deportation
hearing. See Matter of Haim, 19 I & N Dec. 641 (1988) (where
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basis of motion to reopen is that an immigration judge erred
in holding an in absentia hearing, alien must establish that
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he or she had "reasonable cause" for the failure to appear).
The law concerning in absentia hearings is
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contained in 8 U.S.C. 1252(b):
If any alien has been given a
reasonable opportunity to be
present at a proceeding under
this section, and without
reasonable cause fails or
refuses to attend . . . such
proceeding, the special inquiry
officer may proceed to a
determination in like manner as
if the alien were present.
Here, the immigration judge orally gave notice to petitioner
of the date and place of the hearing two months before it was
to take place. This is sufficient to satisfy the requirement
that petitioner be given a "reasonable opportunity" to be
present at his deportation hearing. See Thomas, 976 F.2d at
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789 (where petitioner received notice over five months prior
to hearing date, 1252(b) is satisfied); Maldonado-Perez v.
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INS, 865 F.2d 328, 333 (D.C. Cir. 1989) (two months notice
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held sufficient).
We now turn to the question whether petitioner
presented sufficient evidence of "reasonable cause" for his
absence from the February 22, 1991 hearing. In the motion to
reopen filed with the immigration judge, petitioner's reason
for not appearing was only a conclusory statement that his
car had broken down on the date set for deportation -- April
26, 1991. This plainly is not enough to show reasonable
cause for failing to appear at the hearing on February 22,
1991. Further, petitioner's clarifications advanced in his
brief to the BIA do not suffice.
Even assuming that petitioner's erroneous referral
to April 26, 1991 was excusable, his "explanation" that the
engine had "seized" while traveling to Boston on February 22,
1991, is not enough. That is, this statement alone does not
state how this car trouble made him late. Further,
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petitioner does not refer to any attempts to notify the
immigration judge's chambers of the problems he was having.
See Thomas, 976 F.2d at 790 (BIA's dismissal of appeal from a
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deportation order entered in absentia upheld where the
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immigration judge stated that petitioner had not attempted to
notify his chambers of a mix-up concerning where petitioner
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was to meet his attorney). Finally, petitioner's pro se
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status is inadequate by itself to excuse his failure to
appear at the hearing. Petitioner admits that he attended
four other hearings; he therefore was amply familiar with
such proceedings. See Gando-Coello, 888 F.2d at 199-200
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(where petitioner, proceeding pro se, had appeared three
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times before the immigration judge, the BIA did not abuse its
discretion in denying motion to reopen).
B. The BIA's December 12, 1993 Decision.
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In denying the motion to reopen that petitioner
filed directly with the BIA, it relied, in part, on 8 C.F.R.
3.2. This section, so far as is relevant, provides:
Motions to reopen in
deportation proceedings shall
not be granted unless it
appears to the Board that
evidence sought to be offered
is material and was not
available and could not have
been discovered or presented at
the former hearing. . . .
We review a denial of a motion to reopen based on this ground
for abuse of discretion. See INS v. Doherty, 112 S. Ct. 719,
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725 (1992); Abudu, 485 U.S. at 105.
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Viewed under this standard, it is plain that the
evidence petitioner presented in support of his motion to
reopen -- the specifics of how his car broke down, how it was
fixed and the attempts he made to gain access to the INS
offices when he finally arrived in Boston -- were available
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in April 1993 when he filed the first motion to reopen with
the immigration judge and in July 1993 when he appealed to
the BIA. See Gando-Coello, 888 F.2d at 199 (where evidence
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presented in motion to reopen was available at time of in
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absentia deportation and at time of appeal from deportation
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order, BIA's denial of motion to reopen upheld).
Petitioner adds a last argument, raised for the
first time in his brief on appeal to this court. He claims
that the holding of an in absentia hearing violated his due
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process rights. The Supreme Court has approved in absentia
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hearings: An alien "must be given `a reasonable opportunity
to be present at [the] proceeding,' but if the [alien] fails
to avail himself of that opportunity, the hearing may proceed
in his absence." INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-
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39 (1984). Courts of appeals have held that if this standard
is met, there is no due process violation. See Reyes-Arias
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v. INS, 866 F.2d 500, 503-04 (D.C. Cir. 1989); Maldonado-
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Perez, 865 F.2d at 333. We agree with these cases and
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therefore reject petitioner's constitutional claim.
III.
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For the foregoing reasons, the decisions of the BIA
are therefore affirmed.
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