
USCA1 Opinion

	




          May 25, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1055                                ENRIQUE WILLIAMS CELIS,                                     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.                                   ______________                                 ____________________            Richard  L.  Iandoli  and  Iandoli  &  Associates,  on  brief  for            ____________________       ______________________        petitioner.            Frank W.  Hunger, Assistant  Attorney General,  Richard M.  Evans,            ________________                                _________________        Assistant  Director,  and  Joseph  F.  Ciolino,  Attorney,  Office  of                                   ___________________        Immigration Litigation, Department of Justice,  on Respondent's Motion        to Lift Stay of Deportation.                                 ____________________                                 ____________________                      Per Curiam.  We grant the government's motion, lift                      __________            the stay  of deportation, and summarily  dismiss the petition            for review for three reasons.                      1.  The Board of Immigration Appeals (BIA) was  not            required  to  believe  petitioner's late  proffered  claim of            inability  to prepare for, or  proceed at, the  June 11, 1991            hearing  because   of  an  earlier  heart   attack.    First,            petitioner, a college graduate, indicated at the hearing only            that   his  heart   attack   had  delayed   his  mailing   of            documentation  "a  little."    Neither  in  response  to  the            Immigration  and  Naturalization   Service's  argument   that            petitioner had adequate time to  prepare and should be denied            a continuance nor in his administrative appeal did petitioner            claim  physical  distress  or  inability  to  concentrate  or            prepare.  While petitioner now claims that he did not mention            problems related to  his health because he did not appreciate            their  relevance, the BIA  was not  required to  believe that            explanation.   Second, the medical reports  did not establish            that   petitioner's  heart   condition  precluded   him  from            contacting a  lawyer, preparing for the  hearing, or thinking            clearly during  the hearing.   Indeed,  according to  his own            account, petitioner  had been active in  the months following            the attack contacting every lawyer  on the list and obtaining            documents.   Having  implicitly discounted  petitioner's late            claim of  severe  disability,  the BIA  did  not  exceed  its            authority  in refusing  to excuse  claimant's lack  of candor            during the June  11 hearing, in concluding petitioner  had an            adequate  opportunity  to  obtain  counsel,  or  in   denying            petitioner's motion for reconsideration.                      2.    Petitioner  contends  the  Immigration  Judge            (I.J.) should have inquired  further into petitioner's health            and expressly considered the cardiac condition in determining            whether to grant discretionary relief.  Regardless whether or            not  the I.J.'s  inquiries were  adequate, the BIA  has since            expressly  considered  petitioner's  medical   condition  and            concluded  that adverse  factors (e.g.,  petitioner's serious                                              ____            trafficking  conviction  and  lack of  remorse)  outweigh any            demonstrated  equities.   The  BIA's  determination was  well            within its broad range of discretion.                      3.  Petitioner failed to argue below that  8 C.F.R.              242.1(c) was violated and therefore may not raise the issue            now.  See Cabral de Faria v. INS, 13 F.3d 422 (1st Cir. 1993)                  ___ _______________    ___            (issues not raised before the Board may not be raised for the            first time upon judicial review).                      The  petition  for  judicial  review  is  summarily            denied and this court's February  1, 1994 stay of deportation            is vacated.  Loc. R. 27.1.                                         -3-
