Abasiri v. INS

Opinion

USCA1 Opinion

March 25, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1633 

                                EUGENE HENRY ABASIRI,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

                                 ____________________

                          ON PETITION FOR REVIEW OF AN ORDER
                         OF THE BOARD OF IMMIGRATION APPEALS

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Maurice P. Mason, Jr. on brief for petitioner.
            _____________________
            Frank W.  Hunger, Assistant  Attorney General,  Richard M.  Evans,
            ________________                                _________________
        Assistant  Director, and  C.  William Lengacher,  Attorney, Office  of
                                  _____________________
        Immigration Litigation, Civil Division, U.S. Department of Justice, on
        brief for respondent.

____________________

____________________

Per Curiam.   This is  a petition for  review of  a
                      __________

            decision  of the  Board of  Immigration  Appeals.   The Board

            affirmed  the  decision  of  an  immigration  judge  ordering

            deportation made during an in absentia hearing.
                                       ___________

                                          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
                                                             ____________

            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.
                                         __

                 The  law concerning in absentia hearings is 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.

          We review a  decision of  the Board which  affirms a  deportation

          order made during an in absentia hearing for abuse of discretion.
                               ___________

          See  Thomas  v. INS,  976  F.2d  786, 789  (1st  Cir. 1992)  (per
          ___  ______     ___

          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)
                      ___ _______    ___

          (citation omitted).

                      We  believe  that  the  outcome  of  this  appeal  is

          controlled  by Thomas.   In Thomas,  petitioner and  his attorney
                         ______       ______

          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
                                                         ___________

          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
                                                   ___

          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
                    ___ ______                    _______     ___

          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,
                                                                    ______

          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
                           ______

          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
                         __ ________

          had  a reasonable opportunity to be present and failed to provide

          reasonable  cause for his absence."   Maldonado-Perez v. INS, 865
                                                _______________    ___

          F.2d 328, 333 (D.C. Cir.  1989); Sewak v. INS, 900 F.2d  667, 672
                                           _____    ___

          (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
                                              _______       ___

          27.1.

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