United States Court of Appeals
For the First Circuit
No. 05-2800
JAMELEDDIN ALSAMHOURI,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
and Lynch and Lipez, Circuit Judges.
Jose A. Espinosa on brief for petitioner.
Thomas L. Holzman, Special Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Peter D. Keisler, Assistant Attorney General, Civil Division, and
Terri J. Scadron, Assistant Director, on brief for respondent.
August 14, 2006
LYNCH, Circuit Judge. Lead petitioner Jameleddin
Alsamhouri is a Jordanian citizen. His wife and three children
join, derivatively, this petition for review of an Immigration
Judge's (IJ's) order denying a continuance to permit Alsamhouri to
file an application for asylum, and ordering him removed, which was
affirmed by the Board of Immigration Appeals (BIA). There is a
one-year time limit to file an application for asylum, subject to
certain exceptions. 8 U.S.C. § 1158(a)(2)(B).
Alsamhouri admits removability, having entered the
country on April 13, 2001 and overstayed. Alsamhouri received a
notice to appear dated March 12, 2003. He appeared before an IJ on
July 2, 2003 and was given a continuance. At a master calendar
hearing on April 19, 2004, petitioner appeared with counsel and was
given until July 7, 2004 to file applications for asylum and
withholding of removal. On May 28, 2004, Alsamhouri's counsel
filed a motion to withdraw, attaching a copy of a letter he had
given to Alsamhouri on May 20, advising of the July 7, 2004 filing
date and that failure to file the applications on time would
forever bind petitioner.
At the July 7, 2004 hearing, Alsamhouri appeared but
filed no application. Alsamhouri was accompanied by both original
counsel, who had not yet been given leave to withdraw, and new
counsel, who stated that Alsamhouri had retained him only a few
days earlier. Original counsel informed the IJ that soon after the
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April 19 master calendar hearing, he received a communication from
petitioner that he had obtained other counsel and no longer needed
the services of that original lawyer. The IJ questioned
Alsamhouri, who testified he never understood there was a deadline
for filing his applications and that he never received the letter
from his counsel advising him of the deadline and the consequences
of not meeting it. When the IJ pointed out his initials were on
the letter produced by his first counsel, Alsamhouri switched his
testimony to admit he received the letter, but then added that he
did not understand it. The IJ found him not credible.
The IJ then deemed Alsamhouri's applications for asylum,
withholding of removal, and relief under the Convention Against
Torture to be withdrawn and abandoned with prejudice. Alsamhouri
declined to request voluntary departure; the IJ ordered removal to
Jordan.
On November 3, 2005, the BIA affirmed the order of
removal, without opinion, 8 C.F.R. § 1003.1(e)(4).
Alsamhouri brought this petition for review. He
challenges the denial of a further continuance as a violation of
due process and as an abuse of discretion.
We acknowledge the correctness of the government's
argument that we have no jurisdiction over whether the denial of a
continuance was an abuse of discretion, 8 U.S.C.
§ 1252(a)(2)(B)(ii); we only address the due process claim.
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That due process claim is not even colorable. The record
supports the IJ's determination that Alsamhouri was well aware of
the significance both of the application and of the filing date of
July 7, 2004. As of July 7, 2004, nearly 16 months had elapsed
from petitioner's receipt of his notice to appear. Petitioner had
more than adequate time to obtain counsel and to file his
applications. Indeed, petitioner had had nearly 39 months to file
an application from the time he entered the U.S.
The record reflects actions by Alsamhouri to delay his
immigration proceedings and thus string out the time he could
remain in this country. There was evidence that Alsamhouri told
his original counsel soon after the April 18 hearing that he had
retained new counsel; and also evidence that he did not in fact
retain new counsel until a few days before the July 7 hearing.
Thus, the record does not support the statement in the brief
submitted by new counsel that "the Petitioner did not delay in
hiring an attorney."
On these facts, there is no possible claim that the
denial of a continuance rendered the proceeding "fundamentally
unfair." Jobe v. INS, 238 F.3d 96, 98 n.3 (1st Cir. 2001) (en
banc).
The petition for review is denied and the order of
deportation is upheld.
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