
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          August 5, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
