Knight v. INS

February 17, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1651

DONOVAN ALBERT KNIGHT, A/K/A PAUL KNIGHT,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

Paul Knight on brief pro se.

Frank W. Hunger, Assistant Attorney General, Francesco Isgro and

Donald E. Keener, Office of Immigration Litigation, Civil Division,

Department of Justice, on brief for respondent.

Per Curiam. The instant pro se petition for review, in

which petitioner seeks to challenge a decision of the Board

of Immigration Appeals upholding his order of deportation,

falters on procedural grounds. In 1992, an Immigration Judge

found that petitioner, having been convicted of two crimes

involving moral turpitude, was deportable under 8 U.S.C.

1251(a)(2) and was undeserving of discretionary relief under

8 U.S.C. 1182(c). The Board of Immigration Appeals upheld

this ruling in a decision dated September 21, 1993.

Petitioner failed to seek review in this court within 90

days, as required by 8 U.S.C. 1105a(a)(1). Instead, in

March 1994, he filed a motion to reopen with the Board,

claiming that the decision had not been delivered to him in

prison because its mailing label had omitted the alias ("Paul

Knight") under which he was incarcerated. The Board denied

the motion to reopen, and petitioner filed a timely petition

for review. In his appellate brief, he argues solely that

the Board's September 1993 decision was in error.

We lack jurisdiction to review the Board's 1993 decision

because of petitioner's failure to seek timely review

thereof. See, e.g., Amaral v. INS, 977 F.2d 33, 35 (1st Cir.

1992) (compliance with statutory filing period is

jurisdictional prerequisite); Pimental-Romero v. INS, 952

F.2d 564, 564 (1st Cir. 1991) (same). As such, the only

matter open for review is the propriety of the Board's

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decision not to reopen the case. Petitioner has waived this

issue, however, by failing to advance any argument with

regard thereto in his appellate brief. See, e.g., Lareau v.

Page, 39 F.3d 384, 390 n.3 (1st Cir. 1994); Charles v. Rice,

28 F.3d 1312, 1320 (1st Cir. 1994).

We add that the two Board decisions appear fully

supportable in any event. Its conclusion that petitioner was

responsible for any confusion as to the name under which he

received mail was well within its discretion. See, e.g., INS

v. Doherty, 112 S. Ct. 719, 725 (1992) (denial of motion to

reopen subject to review under abuse of discretion standard).

Its determination that petitioner's 1983 conviction was

"final" for immigration purposes appears unexceptionable.

See, e.g., Morales-Alvarado v. INS, 655 F.2d 172, 175 (9th

Cir. 1981) (a conviction is final even though "subject to

collateral attack") (cited in White v. INS, 17 F.3d 475, 479

(1st Cir. 1994)). And its finding that petitioner's 1977

conviction was established by clear, unequivocal and

convincing evidence appears warranted on the facts presented.

The petition for review is denied.

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