                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1707 

                   ALBERTO CABRAL DE FARIA,

                         Petitioner,

                              v.

           IMMIGRATION AND NATURALIZATION SERVICE,

                         Respondent.

                                         

              ON PETITION FOR REVIEW OF AN ORDER

             OF THE BOARD OF IMMIGRATION APPEALS

                                         

                            Before

                     Breyer, Chief Judge,
                                        
                Selya and Cyr, Circuit Judges.
                                             

                                         

Joseph S. Callahan on brief for petitioner.
                  
Frank  W. Hunger, Assistant Attorney General, Robert Kendall, Jr.,
                                                                 
Assistant Director, and  Philemina McNeill Jones, Attorney,  Office of
                                            
Immigration  Litigation, Civil  Division,  Department of  Justice,  on
brief for respondent.

                                         

                      November 16, 1993
                                         

     Per  Curiam.  Petitioner  Alberto Cabral de  Faria seeks
                

review  of  an order  of  the  Board of  Immigration  Appeals

requiring that  he be  deported to Canada.   Finding  that no

substantial  question  is   presented,  we  summarily  affirm

pursuant to Loc. R. 27.1. 

                              I.

     Petitioner, a  Canadian native and citizen,  has resided

in  this country  for  27 of  his  34 years.    In 1991,  the

Immigration and Naturalization Service (INS) charged him with

being deportable  under 8  U.S.C.    1251(a)(2)(A)(ii) as  an

alien who  had been convicted  of two crimes  involving moral

turpitude.  The two crimes cited in the show cause order were

a 1990 larceny conviction and  a 1991 assault conviction.  At

a  hearing   in  September  1992,  petitioner   conceded  his

deportability and  requested a  discretionary waiver  under 8

U.S.C.   1182(c).  A hearing to address this request was held

on October  13, 1992.   The INS there introduced  evidence of

various other  criminal offenses  petitioner had  committed--

including a 1985  conviction for breaking and  entering (b&amp;e)

and  a  1990   conviction  for  possession  with   intent  to

distribute a  controlled substance.  Based on  this and other

evidence, the Immigration Judge (IJ) denied the request for  

212(c) relief at the close  of the hearing.  Petitioner filed

no appeal to the Board from this decision.

                             -2-

     Instead,  on October 27,  he filed an  application for a

stay of deportation with the  District Director, representing

that the state court had vacated the larceny conviction  that

very day.1   The INS  responded six days  later by moving  to

reopen the  deportation proceedings  pursuant to  8 C.F.R.   

242.22.   Pointing to  petitioner's contention regarding  the

larceny  offense,  it  requested  reopening  (1)  so  that  a

separate  conviction   (the  1985   b&amp;e  offense)   could  be

"substituted"  for  the   larceny  conviction  in  order   to

"reestablish deportability,"  and (2)  so that  the IJ  could

consider whether the vacation of the larceny conviction might

affect the earlier denial of   212(c) relief.  The IJ  agreed

to reopen  the proceedings.   The INS amended the  show cause

order  to substitute  the  b&amp;e  conviction  for  the  larceny

conviction.   A subsequent amendment  set forth the 1990 drug

conviction as  a separate basis  for deportability.  At  a de

novo hearing held  in March 1993, the IJ  found petitioner to

be deportable on both grounds:  as one who had been convicted

of two  crimes of moral  turpitude (based on the  assault and

b&amp;e convictions),  and as  one who had  been convicted  of an

                    

1.  While the stay  application and the state  court decision
are  not in  the record before  us, the INS  does not dispute
that the  larceny conviction was  vacated.  Neither  side has
identified  the  basis  for such  action.    We presume  that
petitioner gained  relief pursuant to  Mass. G.L.  c. 278,   
29D,  which requires  a court  to inform  a defendant  of the
immigration  consequences of a  guilty plea.   Petitioner has
challenged  at least  one other  of his  convictions on  this
ground.  

                             -3-

aggravated  felony (based  on the  drug  conviction).   See 8
                                                           

U.S.C.   1251(a)(2)(A)(ii)-(iii).   The request for    212(c)

relief was again denied.  The BIA on appeal affirmed the IJ's

decision, and petitioner has now sought review in this court.

                             II.

     Petitioner  does not  challenge  the  substance  of  the

agency's findings concerning  deportability and discretionary

relief.      Instead,   he   advances   several    procedural

objections.2  His  principal contention is that  the decision

to reopen the deportation proceedings was in contravention of

the governing  regulations.  For  example, 8 C.F.R.    242.22

provides in  relevant part: "A  motion to reopen will  not be

granted  unless  the  immigration  judge  is  satisfied  that

evidence  sought  to  be  offered  is  material  and was  not

available and could  not have been discovered or presented at

the  hearing."  Similarly, 8 C.F.R.   103.5(a)(2)(i) provides

that a  motion to reopen  must "[s]tate the  new facts  to be

proved at  the reopened proceeding."   See also id.    3.8(a)
                                                   

(same).   Petitioner argues  that the  allegedly "new"  facts

                    

2.  One of petitioner's central arguments to the BIA was that
the IJ had neglected to consider his opposition to the motion
to  reopen.   Indeed,  the  IJ  stated  that the  motion  was
"unopposed,"  even though  petitioner's  opposition had  been
filed in timely fashion the previous  day.  The BIA on appeal
addressed this complaint  by considering the matter  de novo.
Any error that  might have attended the IJ's  action was thus
harmless.  See, e.g., Ravindran v. INS, 976 F.2d 754, 762 n.6
                                      
(1st Cir.  1992).   Petitioner has not  pursued the  point in
this court.     

                             -4-

proffered by  the INS--the  evidence concerning  his b&amp;e  and

drug convictions--were not  newly discovered at all  and thus

provided no basis for reopening.  

     This  argument  misconstrues  the  INS'  motion.    What

prompted the request to reopen  was not the evidence of other

crimes but rather  the fact that,  subsequent to the  initial

hearing, the larceny conviction was vacated.  This occurrence

was not  only "new"  but "material" as  well, given  that the

validity of the  original deportation order was  dependent on

that  conviction.   Numerous courts  have  observed that  the

overturning  of a  conviction  upon which  deportability  was

premised is an appropriate basis for reopening administrative

proceedings.   See, e.g., Escobar  v. INS, 935 F.2d  650, 652
                                         

(4th Cir. 1991) (noting that INS had requested BIA to "reopen

and terminate" deportation  proceedings following expungement

of  conviction); Wiedersperg v.  INS, 896 F.2d  1179, 1182-83
                                    

(9th  Cir. 1990)  (abuse of  discretion to deny  reopening in

such  context); Becerra-Jimenez v. INS, 829 F.2d 996, 1000-02
                                      

(10th Cir.  1987) (due  to expunction  of convictions,  court

remands  for agency consideration of motion to reopen); Haghi
                                                             

v. Russell, 744 F. Supp. 249, 251-52 (D. Col. 1990) (vacation
          

of conviction is "new and  material evidence" within 8 C.F.R.

  3.2).  We thus find  no abuse of discretion in the  Board's

ruling that  the  procedural prerequisites  to reopening  had

been satisfied.  See, e.g.,  INS v. Doherty, 112 S. Ct.  719,
                                           

                             -5-

724-25  (1992) (ruling on motion to reopen reviewed for abuse

of discretion);  INS v.  Abudu, 485 U.S.  94, 99  n.3, 104-05
                              

(1988) (same).3

     Petitioner's  real complaint, of course, is not with the

allowance of  the motion to  reopen per se,4 but  rather with

the purpose for which the INS sought reopening--i.e., to file

substitute   charges   in    order   to   "reestablish"   his

deportability.   Before this court, petitioner has advanced a

separate argument in this vein,  contending that introduction

of the  drug offense  was impermissible because  the INS  had

made  no reference  thereto in  its motion  to reopen.   This

contention  stumbles  over  an   initial  hurdle:  petitioner

neither objected to such evidence at the reopened hearing nor

raised  this issue in  his appeal  to the  BIA.   "Issues not

raised  before the Board may not be raised for the first time

upon judicial review of the Board's decisions."  Ravindran v.
                                                          

                    

3.  Petitioner  also  argues  that the  INS'  motion  was not
"supported by  affidavits or other documentary  evidence," as
required by 8 C.F.R.    3.8(a), 103.5(a)(2)(ii).   See, e.g.,
                                                            
INS v. Jong Ha Wang, 450  U.S. 139, 143 (1981) (per  curiam).
                   
Even assuming this contention was adequately presented below,
we  are unpersuaded that  the motion's format  was deficient.
An affidavit was unnecessary where the new evidence proffered
by the  INS consisted of an assertion  advanced by petitioner
himself in an earlier filing with the agency.  

4.  For  example,   if  the  original  larceny   and  assault
convictions  had been the  only ones in  petitioner's record,
there is little doubt that he would have been the one seeking
                             
reopening  in  October   1992  in  order  to  set  aside  his
deportation order.   Indeed, in  a number of the  cases cited
above, it is the alien who sought such relief.

                             -6-

INS, 976 F.2d 754, 761  (1st Cir. 1992); accord, e.g., Thomas
                                                             

v.  INS, 976  F.2d 786,  789  (1st Cir.  1992) (per  curiam);
       

Alvarez-Flores v. INS, 909 F.2d 1, 8 (1st Cir. 1990).
                     

     We  perceive no  procedural  impropriety in  any  event.

Pursuant to  8 C.F.R.   242.16(d),  the INS "may at  any time

during a hearing lodge  additional charges of  deportability,

including factual  allegations, against the respondent."   We

find  no basis  for petitioner's  unsupported assertion  that

this  provision is inapplicable  to reopened hearings.5   Nor

can we  conclude that  the INS was  guilty of "piling  on" or

other  heavy-handed  tactics.    To  be  sure,  both  of  the

"substitute"  convictions here could have been charged at the

outset.   Yet there  is no requirement  that the  INS advance

every  conceivable basis  for deportability  in the  original

show cause  order.  As  the IJ explained,  such a rule  would

needlessly  complicate  proceedings in  the vast  majority of

cases.     Moreover,  each  of  the  substitutions  here  was

prompted, not by  dereliction on the part of  the agency, but

by action on the part  of petitioner.  As noted, introduction

of the b&amp;e offense was  occasioned by his success in vacating

the   larceny  conviction.    And  the  drug  conviction  was

                    

5.  In Rosenberg  v. Fleuti, 374  U.S. 449 (1963),  a similar
                           
series of events  occurred.  A  summary order of  deportation
was issued.  It was later discovered that such conviction was
not one  for  which  deportation  could  be  ordered.    "The
deportation  proceedings were  thereupon reopened  and  a new
charge  [of deportability]  was  lodged against  respondent."
Id. at 450.
   

                             -7-

proffered  as  a  separate basis  for  deportability  only in

response  to  petitioner's  suggestion,  during   a  pair  of

hearings in December 1992, that the b&amp;e conviction, in  turn,
                                       

had   been    vacated   (a   suggestion    that   was   never

substantiated).6   Under these  circumstances,  we think  the

Board  acted within its  "broad discretion," Doherty,  112 S.
                                                    

Ct. at 722, in agreeing to reopen the deportation proceedings

to consider the substitute charges.

     The petition for review is  denied.  The motion for stay
                                                             

of deportation pending review is denied as moot. 
                                                

                    

6.  By means of  a motion dated December 1,  1992, petitioner
asked  the state court to  vacate this conviction pursuant to
G.L. c.  278,    29D.   See note 1  supra.   At the  reopened
                                         
deportation hearing, he introduced a copy of this motion with
the  handwritten  inscription  "mot  all"  appearing  in  the
margin,  followed  by a  set  of  initials.   The  IJ,  while
inferring  that  the   inscription  meant  "motion  allowed,"
rejected this evidence  because of its  improper format.   He
explained  that an  official docket  entry  was necessary  to
prove that the  conviction had been vacated.   Petitioner has
not challenged  this ruling,  either before  the BIA or  this
court, and has not otherwise  pursued the contention that the
b&amp;e conviction has been overturned.     

                             -8-
