
USCA1 Opinion

	




          March 25, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1633                                 EUGENE HENRY ABASIRI,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                          ON PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Maurice P. Mason, Jr. on brief for petitioner.            _____________________            Frank W.  Hunger, Assistant  Attorney General,  Richard M.  Evans,            ________________                                _________________        Assistant  Director, and  C.  William Lengacher,  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  a                      __________            decision  of the  Board of  Immigration  Appeals.   The Board            affirmed  the  decision  of  an  immigration  judge  ordering            deportation made during an in absentia hearing.                                       ___________                                          I.                                          _                      Petitioner,  Eugene  Henry  Abasiri,   entered  the            United States in 1981 on a student visa.  In  1984, he agreed            to  his removal from  this country  after being  charged with            violating the conditions of his student visa (he had ended up            going to school part-time  and working part-time).   The form            he signed  specified that he was  prohibited from re-entering            the United States  for five years absent  permission from the            Attorney General.   Nonetheless, Abasiri obtained  a visa and            returned in 1985.                      He then married a United States citizen and applied            for  an adjustment  of  his status  to  that of  a  permanent            resident under   245 of the Immigration  and Nationality Act,            8  U.S.C.   1255.   This request for  permanent residence was            denied and, in December 1987, the INS issued an order to show            cause why Abasiri should not be deported under   241(a)(1), 8            U.S.C.     1251(a)(1), based  on the  fact  that when  he re-            entered the United  States in 1985 he was among  the class of            aliens  excludable as a matter of law.  His excludability, in            turn, was based on    212(a)(17), 8 U.S.C.    1182(a)(17), as            an alien who had  failed to obtain permission to  return from            the Attorney General.                      At  the  first  hearing  in  May  1988,   Abasiri's            attorney admitted the allegations in the show cause order and            conceded Abasiri's  deportability.  Counsel then withdrew and            Abasiri appeared  pro se at a  hearing in May 1989.   At this            time, an extension  of time was  granted and the  immigration            judge  warned Abasiri that Abasiri would have to obtain a new            lawyer or appear at  the next hearing prepared to  go forward            on his own.   After securing new counsel, a  hearing was held            in December  1989  at which  counsel  stated that  she  would            pursue applications for adjustment of status and for advanced            permission  to  return to  an  unrelinquished  domicile.   To            enable counsel to present evidence about Abasiri's family and            his  moral character,  the hearing  was adjourned  until 1:00            p.m. on November 19, 1990.                      However,  on  November  8,  1990,  counsel  filed a            motion to  withdraw based on  the breakdown of  the attorney-            client relationship.  In her motion,  counsel stated that, in            a  June 1990  conversation and  in  a letter  dated September            1990, she  had informed Abasiri  that she wanted  to withdraw            from  the case  and  that she  had  conveyed to  Abasiri  the            serious consequences that might follow  should he not show up            at the November 19th  hearing.  She also stated  that Abasiri            had spoken to another attorney regarding representation.                                         -3-                      The hearing  began at  1:00 p.m. on  November 19th.            At 1:35 p.m., the  immigration judge noted Abasiri's absence.            He also stated that Abasiri could not be found in the waiting            room or in the adjoining hall and that no one  had heard from            Abasiri or anyone else on his behalf.  On request of the INS,            and after noting that Abasiri had been provided with adequate            notice of the  hearing, the  judge agreed to  an in  absentia                                                             ____________            hearing.  He then found Abasiri deportable under    241(a)(1)            and 212(a)(17) -- the  original charges on which Abasiri  had            conceded  deportability.   The  judge stated  that he  viewed            Abasiri's  "failure  to  appear  as  an  abandonment  of  any            applications for relief that were before this Court."                      Abasiri then secured a  third attorney who filed an            appeal from  the decision  of the immigration  judge ordering            him  deported.  According to  the INS, no  briefs were filed.            Thus,  the  only reason  given was  stated  on the  notice of            appeal form:   "Appellant  was under the  mistaken impression            that he was represented by prior Counsel on 11/19/90 and as a            result  he  did  not appear  at  that  hearing."   The  Board            dismissed  the  appeal.   It  held  that Abasiri's  "mistaken            impression"  concerning  continuing  representation by  prior            counsel did not provide "reasonable cause" for his failure to            appear at the November 19th hearing.                                         -4-                                         II.                                         __                 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.          We review a  decision of  the Board which  affirms a  deportation          order made during an in absentia hearing for abuse of discretion.                               ___________          See  Thomas  v. INS,  976  F.2d  786, 789  (1st  Cir. 1992)  (per          ___  ______     ___          curiam).  That  is, only  if the  decision "`was  made without  a          rational  explanation,  inexplicably  departed  from  established          policies, or  rested on an impermissible basis,'" will we reverse          the Board.  See Leblanc v. INS, 715 F.2d 685, 693 (1st Cir. 1983)                      ___ _______    ___          (citation omitted).                      We  believe  that  the  outcome  of  this  appeal  is          controlled  by Thomas.   In Thomas,  petitioner and  his attorney                         ______       ______          appeared thirty  minutes late  for a  deportation hearing.   This          occurred due to  confusion over where they were to  meet prior to          the  hearing.    The  immigration  judge,  after  waiting  twenty          minutes, ordered the deportation of petitioner in absentia.  When                                                         ___________          Thomas  and his  attorney appeared  ten minutes later,  the judge          refused to hear the matter even though he had scheduled two hours          for the hearing.                                         -5-                      We held that the Board's decision was not "arbitrary,          capricious, or an abuse of discretion."  See 976 F.2d at 789.  We                                                   ___          emphasized  that both  petitioner  and his  counsel had  received          notice of the  hearing over  five months prior  to its  scheduled          date.  Further, there  was no evidence that counsel  had notified          the judge's chambers that they would be late, nor had petitioner,          who  was  waiting at  the  courthouse, entered  the  courtroom to          announce his presence.                      Abasiri argues on appeal that "reasonable  cause" for          his failure to appear exists based on "miscommunication" with his          prior lawyer.  In  an affidavit, appended to Abasiri's  brief, he          first  admits that he received a letter from counsel on September          12,  1990 informing him that  she would no  longer represent him.          However, he then states that he  called her and during the course          of the phone  call he "believed"  that she would continue  as his          lawyer.   He represents  that he did  appear for the  hearing but          left before it commenced  because counsel was not there.   Had he          known  that she  was  not coming,  he  concludes, he  would  have          retained a lawyer to represent him at the hearing.                      The  first problem with this argument is that most of          these facts were  not presented to the Board.   As such, they are          waived.   See Thomas, 976 F.2d  at 789; Alleyne v.  INS, 879 F.2d                    ___ ______                    _______     ___          1177, 1182 (3d Cir. 1989) (issues not presented to  the Board may          not be raised for first time  in petition for review).  Thus, the          only question is whether his "mistaken impression" concerning the                                         -6-          status of his attorney-client relationship  meets the "reasonable          cause" standard.                      We do not  think that, under our  decision in Thomas,                                                                    ______          Abasiri  has  demonstrated   reasonable  cause.     According  to          counsel's motion  to withdraw, she  apprised Abasiri of  the date          and time of  the next hearing  and "fully  informed [him] of  the          importance of appearing  at this hearing  and the consequence  of          his failure to do so."   Further, as Abasiri had appeared  pro se          at  an earlier  hearing  when he  was  "between" counsel,  it  is          reasonable  to have expected him to do likewise on November 19th.          Finally, unlike  Thomas, where  counsel  and petitioner  actually                           ______          appeared  at the hearing albeit  late, Abasiri made  no effort to          even notify the  judge's chambers concerning  the reason for  his          absence.   "An in absentia deportation is legitimate if the alien                         __ ________          had  a reasonable opportunity to be present and failed to provide          reasonable  cause for his absence."   Maldonado-Perez v. INS, 865                                                _______________    ___          F.2d 328, 333 (D.C. Cir.  1989); Sewak v. INS, 900 F.2d  667, 672                                           _____    ___          (3d Cir.  1990) (alien may not  complain if he has  notice of the          hearing and voluntarily fails to appear).  Here, Abasiri received          adequate  notice and his failure to appear was without reasonable          cause.    Thus,  the  Board  did  not  abuse  its  discretion  in          dismissing Abasiri's appeal.                      Because this  petition for review does  not present a          substantial question,  we summarily dismiss  it.  See  Local Rule                                              _______       ___          27.1.                                         -7-
