Hernandez v. INS

• Court: Court of Appeals for the First Circuit
• Decided: March 6, 1996
• Docket: 95-2048
• Status: Published

Opinion

USCA1 Opinion

March 6, 1996         [NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit


____________________


No. 95-2048


JESUS A. HERNANDEZ, a/k/a Tereso Jesus Herndez-Aviles,



                                     Petitioner,



                                          v.



                       IMMIGRATION AND NATURALIZATION SERVICE,



                                     Respondent.



                                 ____________________


ON PETITION FOR REVIEW OF AN ORDER



                        OF THE BOARD OF IMMIGRATION APPEALS



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                            Cyr and Stahl, Circuit Judges.
                                           ______________



                                 ____________________


Raymond E. Gillespie on brief for petitioner.
            ____________________

            Frank  W.  Hunger,  Assistant  Attorney General,  Civil  Division,
            _________________

        Richard  M. Evans, Assistant Director,  and Lorri L. Shealy, Attorney,
        _________________                           _______________

        U.S. Department of Justice, Civil Division, on brief for respondent.


____________________


____________________



Per Curiam.   Petitioner seeks  review of  the Board  of
                 __________



            Immigration Appeals'  (Board) denial of his  motion to reopen



            deportation  proceedings.   We  have carefully  reviewed  the



            record and petitioner's arguments.  



                 We will not  direct the Board to  reopen the proceedings



            to consider petitioner's new  evidence.  Petitioner failed to



            meet the basic requirement  that he present material evidence



            that  was not available and could not have been discovered or



            presented  at   the  former  hearing.     8  C.F.R.      3.2.



            Petitioner's evidence  was available to  him and discoverable



            by him at the time of the hearing.  



                 Petitioner  also failed  to present  a prima  facie case



            showing  that he  is presently entitled  to an  adjustment of



            status.   Accordingly, the Board properly  declined to remand



            the  proceedings to  allow  petitioner to  apply for  such an



            adjustment.  I.N.S. v. Doherty, 502 U.S. 314, 323 (1992). 
                         ______    _______



                 The Board  adequately explained its  reasons for denying



            discretionary  relief, and  we perceive  no basis  to disturb



            that  decision.  Williams v. I.N.S., 773  F.2d 8, 9 (1st Cir.
                             ________    ______



            1985).



                 The  petition for  judicial  review is  denied.   Loc.R.
                                                         ______



            27.1.


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