USCA1 Opinion
March 25, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1633
EUGENE HENRY ABASIRI,
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
Breyer, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Maurice P. Mason, Jr. on brief for petitioner.
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Frank W. Hunger, Assistant Attorney General, Richard M. Evans,
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Assistant Director, and C. William Lengacher, 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 a
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decision of the Board of Immigration Appeals. The Board
affirmed the decision of an immigration judge ordering
deportation made during an in absentia hearing.
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I.
_
Petitioner, Eugene Henry Abasiri, entered the
United States in 1981 on a student visa. In 1984, he agreed
to his removal from this country after being charged with
violating the conditions of his student visa (he had ended up
going to school part-time and working part-time). The form
he signed specified that he was prohibited from re-entering
the United States for five years absent permission from the
Attorney General. Nonetheless, Abasiri obtained a visa and
returned in 1985.
He then married a United States citizen and applied
for an adjustment of his status to that of a permanent
resident under 245 of the Immigration and Nationality Act,
8 U.S.C. 1255. This request for permanent residence was
denied and, in December 1987, the INS issued an order to show
cause why Abasiri should not be deported under 241(a)(1), 8
U.S.C. 1251(a)(1), based on the fact that when he re-
entered the United States in 1985 he was among the class of
aliens excludable as a matter of law. His excludability, in
turn, was based on 212(a)(17), 8 U.S.C. 1182(a)(17), as
an alien who had failed to obtain permission to return from
the Attorney General.
At the first hearing in May 1988, Abasiri's
attorney admitted the allegations in the show cause order and
conceded Abasiri's deportability. Counsel then withdrew and
Abasiri appeared pro se at a hearing in May 1989. At this
time, an extension of time was granted and the immigration
judge warned Abasiri that Abasiri would have to obtain a new
lawyer or appear at the next hearing prepared to go forward
on his own. After securing new counsel, a hearing was held
in December 1989 at which counsel stated that she would
pursue applications for adjustment of status and for advanced
permission to return to an unrelinquished domicile. To
enable counsel to present evidence about Abasiri's family and
his moral character, the hearing was adjourned until 1:00
p.m. on November 19, 1990.
However, on November 8, 1990, counsel filed a
motion to withdraw based on the breakdown of the attorney-
client relationship. In her motion, counsel stated that, in
a June 1990 conversation and in a letter dated September
1990, she had informed Abasiri that she wanted to withdraw
from the case and that she had conveyed to Abasiri the
serious consequences that might follow should he not show up
at the November 19th hearing. She also stated that Abasiri
had spoken to another attorney regarding representation.
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The hearing began at 1:00 p.m. on November 19th.
At 1:35 p.m., the immigration judge noted Abasiri's absence.
He also stated that Abasiri could not be found in the waiting
room or in the adjoining hall and that no one had heard from
Abasiri or anyone else on his behalf. On request of the INS,
and after noting that Abasiri had been provided with adequate
notice of the hearing, the judge agreed to an in absentia
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hearing. He then found Abasiri deportable under 241(a)(1)
and 212(a)(17) -- the original charges on which Abasiri had
conceded deportability. The judge stated that he viewed
Abasiri's "failure to appear as an abandonment of any
applications for relief that were before this Court."
Abasiri then secured a third attorney who filed an
appeal from the decision of the immigration judge ordering
him deported. According to the INS, no briefs were filed.
Thus, the only reason given was stated on the notice of
appeal form: "Appellant was under the mistaken impression
that he was represented by prior Counsel on 11/19/90 and as a
result he did not appear at that hearing." The Board
dismissed the appeal. It held that Abasiri's "mistaken
impression" concerning continuing representation by prior
counsel did not provide "reasonable cause" for his failure to
appear at the November 19th hearing.
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II.
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The law concerning in absentia hearings is contained in 8
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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.
We review a decision of the Board which affirms a deportation
order made during an in absentia hearing for abuse of discretion.
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See Thomas v. INS, 976 F.2d 786, 789 (1st Cir. 1992) (per
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curiam). That is, only if the decision "`was made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis,'" will we reverse
the Board. See Leblanc v. INS, 715 F.2d 685, 693 (1st Cir. 1983)
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(citation omitted).
We believe that the outcome of this appeal is
controlled by Thomas. In Thomas, petitioner and his attorney
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appeared thirty minutes late for a deportation hearing. This
occurred due to confusion over where they were to meet prior to
the hearing. The immigration judge, after waiting twenty
minutes, ordered the deportation of petitioner in absentia. When
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Thomas and his attorney appeared ten minutes later, the judge
refused to hear the matter even though he had scheduled two hours
for the hearing.
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We held that the Board's decision was not "arbitrary,
capricious, or an abuse of discretion." See 976 F.2d at 789. We
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emphasized that both petitioner and his counsel had received
notice of the hearing over five months prior to its scheduled
date. Further, there was no evidence that counsel had notified
the judge's chambers that they would be late, nor had petitioner,
who was waiting at the courthouse, entered the courtroom to
announce his presence.
Abasiri argues on appeal that "reasonable cause" for
his failure to appear exists based on "miscommunication" with his
prior lawyer. In an affidavit, appended to Abasiri's brief, he
first admits that he received a letter from counsel on September
12, 1990 informing him that she would no longer represent him.
However, he then states that he called her and during the course
of the phone call he "believed" that she would continue as his
lawyer. He represents that he did appear for the hearing but
left before it commenced because counsel was not there. Had he
known that she was not coming, he concludes, he would have
retained a lawyer to represent him at the hearing.
The first problem with this argument is that most of
these facts were not presented to the Board. As such, they are
waived. See Thomas, 976 F.2d at 789; Alleyne v. INS, 879 F.2d
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1177, 1182 (3d Cir. 1989) (issues not presented to the Board may
not be raised for first time in petition for review). Thus, the
only question is whether his "mistaken impression" concerning the
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status of his attorney-client relationship meets the "reasonable
cause" standard.
We do not think that, under our decision in Thomas,
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Abasiri has demonstrated reasonable cause. According to
counsel's motion to withdraw, she apprised Abasiri of the date
and time of the next hearing and "fully informed [him] of the
importance of appearing at this hearing and the consequence of
his failure to do so." Further, as Abasiri had appeared pro se
at an earlier hearing when he was "between" counsel, it is
reasonable to have expected him to do likewise on November 19th.
Finally, unlike Thomas, where counsel and petitioner actually
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appeared at the hearing albeit late, Abasiri made no effort to
even notify the judge's chambers concerning the reason for his
absence. "An in absentia deportation is legitimate if the alien
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had a reasonable opportunity to be present and failed to provide
reasonable cause for his absence." Maldonado-Perez v. INS, 865
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F.2d 328, 333 (D.C. Cir. 1989); Sewak v. INS, 900 F.2d 667, 672
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(3d Cir. 1990) (alien may not complain if he has notice of the
hearing and voluntarily fails to appear). Here, Abasiri received
adequate notice and his failure to appear was without reasonable
cause. Thus, the Board did not abuse its discretion in
dismissing Abasiri's appeal.
Because this petition for review does not present a
substantial question, we summarily dismiss it. See Local Rule
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27.1.
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