USCA1 Opinion
May 25, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1055
ENRIQUE WILLIAMS CELIS,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Torruella, Selya and Cyr,
Circuit Judges.
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Richard L. Iandoli and Iandoli & Associates, on brief for
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petitioner.
Frank W. Hunger, Assistant Attorney General, Richard M. Evans,
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Assistant Director, and Joseph F. Ciolino, Attorney, Office of
___________________
Immigration Litigation, Department of Justice, on Respondent's Motion
to Lift Stay of Deportation.
____________________
____________________
Per Curiam. We grant the government's motion, lift
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the stay of deportation, and summarily dismiss the petition
for review for three reasons.
1. The Board of Immigration Appeals (BIA) was not
required to believe petitioner's late proffered claim of
inability to prepare for, or proceed at, the June 11, 1991
hearing because of an earlier heart attack. First,
petitioner, a college graduate, indicated at the hearing only
that his heart attack had delayed his mailing of
documentation "a little." Neither in response to the
Immigration and Naturalization Service's argument that
petitioner had adequate time to prepare and should be denied
a continuance nor in his administrative appeal did petitioner
claim physical distress or inability to concentrate or
prepare. While petitioner now claims that he did not mention
problems related to his health because he did not appreciate
their relevance, the BIA was not required to believe that
explanation. Second, the medical reports did not establish
that petitioner's heart condition precluded him from
contacting a lawyer, preparing for the hearing, or thinking
clearly during the hearing. Indeed, according to his own
account, petitioner had been active in the months following
the attack contacting every lawyer on the list and obtaining
documents. Having implicitly discounted petitioner's late
claim of severe disability, the BIA did not exceed its
authority in refusing to excuse claimant's lack of candor
during the June 11 hearing, in concluding petitioner had an
adequate opportunity to obtain counsel, or in denying
petitioner's motion for reconsideration.
2. Petitioner contends the Immigration Judge
(I.J.) should have inquired further into petitioner's health
and expressly considered the cardiac condition in determining
whether to grant discretionary relief. Regardless whether or
not the I.J.'s inquiries were adequate, the BIA has since
expressly considered petitioner's medical condition and
concluded that adverse factors (e.g., petitioner's serious
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trafficking conviction and lack of remorse) outweigh any
demonstrated equities. The BIA's determination was well
within its broad range of discretion.
3. Petitioner failed to argue below that 8 C.F.R.
242.1(c) was violated and therefore may not raise the issue
now. See Cabral de Faria v. INS, 13 F.3d 422 (1st Cir. 1993)
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(issues not raised before the Board may not be raised for the
first time upon judicial review).
The petition for judicial review is summarily
denied and this court's February 1, 1994 stay of deportation
is vacated. Loc. R. 27.1.
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