October 22, 1993      [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

Nos. 91-2113
     93-1420

                       GILBERTO E. GARCIA,

                           Petitioner,

                                v.

             IMMIGRATION AND NATURALIZATION SERVICE,

                           Respondent.

                                           

                 PETITION FOR REVIEW OF ORDERS OF

                 THE BOARD OF IMMIGRATION APPEALS

                                           

                              Before

                    Torruella, Circuit Judge,
                                            

                  Bownes, Senior Circuit Judge,
                                              

                    and Stahl, Circuit Judge.
                                            

                                           

     Carl Krueger, with whom the International Institute of Rhode
                                                                 
Island, Inc., was on brief for petitioner.
            
     Charles   E.   Pazar,   Attorney,   Office   of  Immigration
                         
Litigation,  Civil Division,  Department  of  Justice, with  whom
Frank W. Hunger, Assistant  Attorney General, and Robert Kendall,
                                                                 
Jr., Assistant Director, were on brief for respondent.
   

                                           

                                           

          Per   Curiam.    Petitioner  Gilberto  Garc a  contests
                      

decisions  of  the Board  of  Immigration  Appeals (the  "Board")

ordering deportation  and refusing  to reopen and  reconsider his

case.

          Petitioner  is a  native and  citizen of  the Dominican

Republic.  He has been a lawful permanent resident  in the United

States  since  1979.   On August  19,  1988, the  Immigration and

Naturalization Service ("INS") commenced  deportation proceedings

against  petitioner,  alleging  his deportability  under  section

241(a)(11) of  the Immigration  and Nationality Act  (the "Act"),

8 U.S.C.    1251(a)(11), as  an alien  convicted of  a controlled

substance  violation  (cocaine).   At  a  deportation hearing  on

February 27,  1989,1 petitioner  conceded that he  was deportable

as  charged and requested  an opportunity to  file an application

for a waiver of deportation under section 212(c) of the Act.  See
                                                                 

8 U.S.C.    1182(c).  The immigration judge assigned the case for

a hearing  on the merits  on June 26, and  directed petitioner to

file his  waiver application by June  16.  On  June 6, petitioner

received  notice  that  his   hearing  had  been  rescheduled  to

September  27.  The notice did not mention the application filing

deadline.

          On  September   14,  petitioner  filed  his      212(c)

application  by paying  the  application fee  at the  Providence,

Rhode Island office of the INS.  The application was delivered to

the Office of the  Immigration Judge in Boston,  Massachusetts on

                    

1  Unless otherwise specified, all dates are during 1989.

                               -2-

September 15.

          On   September  18,   the  immigration   judge  ordered

petitioner's deportation because petitioner failed to timely file

his  written  application for  relief.   The  Board  affirmed the

decision and denied a subsequent motion to reopen.

                                I

          Petitioner asks that we  remand the case for  a hearing

on  the merits.   He asserts that  his attorney did  not file the

application  on  June 16  because  the  immigration judge  stated

during  the February  27 hearing that  the application  should be

filed ten days prior to  the hearing.  As a result,  his attorney

allegedly met  the deadline  by sending the  application thirteen

days  prior  to the  postponed  hearing  date  of  September  28.

Because  the record clearly states that the application was to be

filed  by June 16,  petitioner's attorney contends that the judge

must have made  the statement on which he relies  off the record.

Moreover, he  pleads that  the immigration judge  stated that  no

application  had  been  filed  when  he  ordered  deportation  on

September 18.   From this, petitioner's attorney  infers that the

immigration  judge also  believed  the relevant  filing date  was

September 18 and that the judge only ordered  deportation because

he had not received, through some error, the application filed on

September  14.     Petitioner   finally  urges  that   remand  is

appropriate  because the  application was  filed late due  to the

attorney's error  (not  petitioner's) and  because  no  prejudice

occurred as a result of the tardy submission.

                               -3-

          Board  regulations  authorize an  immigration  judge to

"set  and extend time limits for the  filing of applications."  8

C.F.R.    3.31(c)  (1993).   Applications  not  timely filed  are

deemed waived or abandoned.  Id.  The Board found,  and we agree,
                                

that the record  clearly states  that the application  was to  be

filed by June 16.2   Since  the application was  not filed  until

September 14, the Board found the application waived and affirmed

the immigration judge's deportation order.  

          Petitioner proposes no substantial argument against the

Board's decision.   Petitioner first emphasizes  that his counsel

recalls that the time  limit specified was ten days prior  to the

hearing and that the immigration judge waited until  September 18

to order deportation.  We cannot draw the inference he desires --

i.e., that the immigration judge also thought the application due

only ten days before  the rescheduled hearing -- in  light of the

plain  evidence  in the  record that  the  deadline was  June 16.

Perhaps, for  example, the  immigration judge did  not issue  the

order until September 18 because he reviewed his calendar on that

day;  we can  only speculate, a  procedure contrary  to appellate

review.  Second, failure to comply with time limitations is often

the  fault of  counsel rather  than the  client, and  clients are

bound  by the conduct of  their attorneys.  See Magallanes-Dami n
                                                                 

v. INS, 783  F.2d 931, 934 (9th Cir. 1986).  Time limits would be
      

                    

2  The immigration judge stated at the February 27 hearing:  "I'd
ask that you  file that [application  for section 212(c)  relief]
not  later  than  June  16,  1989,  along  with   any  supporting
documents.  And we'll be adjourned then to June 26 at 8:00 in the
morning."

                               -4-

meaningless if we excused counsel's mistakes every time the error

prejudiced  the client.   Finally,  while petitioner  contends no

prejudice   has  occurred,   these  appellate   proceedings  have

substantially  delayed  petitioner's   deportation  despite   his

eligibility  for  deportation  under    241(a)(11).    Since  the

Board's  factual finding  that  petitioner untimely  filed his   

212(c) application  is supported  by substantial evidence  in the

record, we affirm  its decision to affirm the  deportation order.

See Gouveia v. INS, 980 F.2d 814, 818 (1st Cir. 1992) ("[A] court
                  

must accept the  Board's factual determinations  so long as  they

are  supported  by substantial  evidence  .  . .  .")  (citations

omitted).

                                II

          The authority of the Board  or the Attorney General  to

reopen   a   deportation   proceeding  "derive[s]   solely   from

regulations  promulgated  by  the  Attorney  General."    INS  v.
                                                             

Doherty,  112 S. Ct. 719,  724 (1992) (citing  INS v. R o-Pineda,
                                                                

471 U.S.  444, 446 (1985)).   A motion to reopen  or reconsider a

final decision will not be granted unless petitioner presents new

material evidence previously  unavailable or identifies  a change

in the  applicable statutory or case  law.  See 8  C.F.R.   3.2;3
                                               

Matter of Cerna, Int. Dec. 3161 (BIA Oct. 7, 1991).  As a general
               

matter,  motions to reopen are  disfavored.  See  Doherty, 112 S.
                                                         

                    

3  8 C.F.R.   3.2 specifies that "[m]otions to reopen 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."  Id.
                     

                               -5-

Ct.  at  724.   The  decision  whether  to  reopen a  deportation

proceeding lies within the Board's discretion.  See id.; Williams
                                                                 

v. INS, 773 F.2d 8, 9 (1st Cir. 1985).  In the past we  have held
      

that "'[t]he denial [of a motion to reopen] will be upheld unless

it was made without a rational explanation, inexplicably departed

from established  policies, or  rested on an  impermissible basis

such  as invidious  discrimination against  a particular  race or

group.'"   Williams, 773 F.2d at  9 (quoting Leblanc v.  INS, 715
                                                            

F.2d  685, 693 (1st Cir.  1983)).  This  standard is particularly

appropriate where  waiver of  deportation  under    212(c) is  in

issue  because whether  waiver is  granted is  firmly within  the

Board's discretion  and  depends  on  a balance  of  "social  and

humane" factors.  See Gouveia, 980 F.2d at 816.
                             

          Under  the above  standard,  the  Board's  decision  is

unassailable.  The only new evidence that petitioner offered is a

detailed affidavit from his attorney concerning the circumstances

of  his misunderstanding.4   As the Board  explained, however, it

considered counsel's error and found  that even if the proceeding

were reopened, the attorney's affidavit was not likely to  change

its  finding  that the  waiver  application  had been  abandoned.

Petitioner has not cited any change in the applicable law.

          We therefore affirm the decisions of the Board.

                    

4   Incidentally,  appellant  points out  that  the INS  has  not
opposed reopening the case  and hearing the merits of  the 212(c)
application.    We fail  to  see why  the  Board must  sanction a
violation  of an immigration  judge's order because  the INS does
not specifically oppose reopening the case.

                               -6-
