Adamu v. INS

Court of Appeals for the First Circuit·Decided August 5, 1994·No. 93-2384·Published

Opinion

USCA1 Opinion

August 5, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 93-2384

ISMAILA ABDULLAH ADAMU,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

____________________

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

____________________

Before

Torruella, Selya and Cyr,
Circuit Judges.
______________

____________________

Ismaila A. Adamu on brief pro se.
________________
Frank W. Hunger, Assistant Attorney General, Robert Kendall, Jr.,
_______________ ____________________
Assistant Director, and Karen Fletcher Torstenson, 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 two
__________

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.
__ ________

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.
___

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
__ ________ ___

petitioner deported as charged.

-2-

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.
___________

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.

-3-
-3-

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

-4-
-4-

date of April 26, 1991.

Free access — add to your briefcase to read the full text and ask questions with AI

USCA1 Opinion



August 5, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-2384

                               ISMAILA ABDULLAH ADAMU,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

                                 ____________________

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

                                 ____________________

                                        Before

                               Torruella, Selya and Cyr,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Ismaila A. Adamu on brief pro se.
            ________________
            Frank W. Hunger, Assistant Attorney General, Robert Kendall,  Jr.,
            _______________                              ____________________
        Assistant Director, and Karen Fletcher Torstenson, 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 two
                      __________

            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.
            __ ________

                                          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.   
                                                         ___

            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
               __ ________           ___

            petitioner deported as charged.

-2-

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.
                                  ___________

            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.

-3-
                                         -3-

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

-4-
                                         -4-

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,

-5-
                                         -5-

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.
                                         __

                      We review  denials of motions to reopen such as the

            ones before  us under the abuse-of-discretion  standard.  See
                                                                      ___

            INS v.  Abudu, 485  U.S. 94, 104-05  (1988); Gando-Coello  v.
            ___     _____                                ____________

            INS, 888 F.2d 197, 199 (1st Cir. 1989) (per curiam).  We will
            ___

            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.
                           ___ ______    ___

-6-
                                         -6-

1992)  (per curiam); LeBlanc v.  INS, 715 F.2d  685, 693 (1st
                                 _______     ___

            Cir. 1983).

A.  The BIA's October 20, 1993 Decision.
                          ___________________________________

                      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
                      ___ ______________

            basis  of motion to reopen is that an immigration judge erred

            in holding an in absentia  hearing, alien must establish that
                          __ ________

            he or she had "reasonable cause" for the failure to appear).

                      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.

            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
                                                  ___ ______

-7-
                                         -7-

789 (where petitioner received  notice over five months prior

            to hearing date,    1252(b) is satisfied); Maldonado-Perez v.
                                                       _______________

            INS,  865 F.2d 328, 333  (D.C. Cir. 1989)  (two months notice
            ___

            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,
                   ___

            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
            ___ ______

            deportation  order  entered  in  absentia  upheld  where  the
                                         __  ________

            immigration judge stated that petitioner had not attempted to

            notify his  chambers of a mix-up  concerning where petitioner

-8-
                                         -8-

was  to  meet his  attorney).   Finally, petitioner's  pro se
                                                                   ___ __

            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
                                 ___  ____________

            (where  petitioner, proceeding  pro  se,  had appeared  three
                                            ___  __

            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.
                          ____________________________________

                      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,
                                      ___ ___    _______

            725 (1992); Abudu, 485 U.S. at 105.
                        _____

                      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

-9-
                                         -9-

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
                      ___  ____________

            presented in motion  to reopen  was available at  time of  in
                                                                       __

            absentia deportation  and at time of  appeal from deportation
            ________

            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
                                    __ ________

            process rights.  The  Supreme Court has approved  in absentia
                                                              __ ________

            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-
                               ___    _____________

            39 (1984).  Courts of appeals have held that if this standard

            is met, there is  no due process violation.   See Reyes-Arias
                                                          ___ ___________

            v.  INS, 866 F.2d  500, 503-04  (D.C. Cir.  1989); Maldonado-
                ___                                            __________

            Perez, 865  F.2d  at 333.    We agree  with  these cases  and
            _____

            therefore reject petitioner's constitutional claim.

                                         III.
                                         ___

                      For the foregoing reasons, the decisions of the BIA

            are therefore affirmed.
                          ________

-10-
                                         -10-