UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 95-60749
(Summary Calendar)
_________________
JOSEPH ONUSUWA OKONKWO,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(A29-076-979)
May 7, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Joseph Onusuwa Okonkwo (“Okonkwo”) petitions for review of an
order of the Board of Immigration Appeals (“BIA”) directing his
deportation to Nigeria. We affirm.
I
*
Pursuant to Local Rule 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
On January 5, 1994, the Immigration and Naturalization Service
(“INS”) served an order to show cause on Okonkwo, a Nigerian
citizen, alleging that Okonkwo had been admitted to the United
States in March 1986 as a nonimmigrant visitor with authorization
to remain in the United States for a temporary period not to exceed
one year and that Okonkwo had exceeded this period. The notice
informed Okonkwo that the INS would not hold a hearing sooner than
fourteen days from his receipt of the notice to enable Okonkwo to
obtain counsel. The notice stated that Okonkwo could be
represented by counsel at no expense to the government and that he
would be provided a list of attorneys available to represent aliens
in immigration proceedings.
On March 8, 1994, the INS sent Okonkwo another notice,
informing him that his hearing was scheduled for April 12, 1994.
The notice again stated that Okonkwo could be represented by
counsel at the hearing and informed Okonkwo that he should have
received a list of attorneys from the INS.
Okonkwo appeared without counsel before an immigration judge
(“IJ”) on April 12, 1994. Okonkwo admitted that he had been
convicted of forgery in March 1993. He also requested additional
time to obtain an attorney to represent him during the hearing.
Okonkwo again received a list of attorneys to contact regarding
representation. The IJ continued the hearing to April 29, 1994 to
enable Okonkwo to obtain counsel and informed Okonkwo that failure
to appear at the hearing would result in an immediate deportation
-2-
order.
Okonkwo appeared at the April 29 hearing, again without
counsel. He explained that he had obtained an attorney, but that
his attorney would not appear until Okonkwo paid the attorney’s
$2,500.00 fee. Okonkwo stated that he had not made any payments to
the attorney and that he had three months to pay the sum.
The IJ explained that the INS would not delay the hearing for
an additional three months, but told Okonkwo that he could present
evidence demonstrating that Okonkwo should be permitted to remain
in the United States. Okonkwo continued to request additional time
to obtain counsel. The IJ ultimately denied Okonkwo’s request,
observing that Okonkwo had had four months to obtain counsel.
During the hearing, Okonkwo stated that he was separated from
his wife, Angela Reeves, an American citizen. The IJ observed that
Reeves had not filed any documents on Okonkwo’s behalf and that
Okonkwo had never become a conditional resident. Okonkwo did not
contest this observation; he only stated that his attorney had
documents regarding the marriage. The IJ found it unlikely that
Okonkwo would obtain any benefits from the marriage because the
couple was separated.
As he had done at the April 12 hearing, Okonkwo acknowledged
that he had been convicted of forgery. The IJ admitted this
evidence and found that Okonkwo was an alien who had remained in
the United States longer than authorized. The IJ explained that
because of Okonkwo’s forgery conviction, Okonkwo was ineligible for
-3-
voluntary departure or suspension of deportation; the IJ issued an
order directing Okonkwo’s deportation to Nigeria.
Okonkwo, still appearing pro se, appealed the IJ’s decision to
the BIA, arguing that the IJ abused its discretion in refusing to
continue the hearing to enable Okonkwo to obtain counsel. The BIA
affirmed the IJ’s decision, finding that Okonkwo had not
demonstrated that the denial of his second request for a
continuance had caused him actual prejudice or harm. The BIA also
observed that Okonkwo did not apply for relief from deportation.
Okonkwo appeals.
II
Through counsel, Okonkwo argues that the IJ’s refusal to grant
him the second continuance and his lack of counsel at the hearing
deprived him of due process.2 We review due process challenges de
novo. Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993). To
sustain a due process challenge to a deportation proceeding, an
alien must show substantial prejudice. Patel v. INS, 803 F.2d 804,
807 (5th Cir. 1986).
Okonkwo has not challenged the finding of deportability nor
has he established, or even alleged, eligibility for discretionary
2
We note our jurisdiction to consider Okonkwo’s appeal.
See Anwar v. INS, No. 95-60742, 1997 WL 80434, at *2 (5th Cir. Mar.
13, 1997) (holding that court of appeals retains jurisdiction of
alien’s due process challenge to final deportation order under
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), for issues not
involved in administrative deportation decision).
-4-
relief. Thus, Okonkwo has failed to show prejudice. See id.
(finding that because Patel neither challenged finding of
deportability nor alleged eligibility for discretionary relief, he
failed to show prejudice). Okonkwo’s remedy, if he has evidence
why he should not be deported, is to file a motion to reopen before
the BIA. See id. (explaining that Patel had same remedy).
The decision of the Board of Immigration Appeals is AFFIRMED.
-5-