
USCA1 Opinion

	




                            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&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&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&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&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&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&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&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&e conviction has been overturned.                                              -8-
