IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60004
Summary Calendar
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CHIN SIONG CHONG,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent.
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Appeal from a Decision of the
Board of Immigration Appeals
A29 715 171
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August 7, 1995
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Petitioner admitted deportability, and at the June 1991
hearing all that was ultimately at issue was his request for
voluntary departure, as he withdrew his earlier application for
suspension of deportation. The Board of Immigration Appeals (BIA)
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
in the exercise of its discretion denied voluntary departure, as
had the Immigration Judge (IJ).
Petitioner complains in this Court that he was denied due
process because he was not afforded notice and an opportunity to
examine, sufficiently in advance of the June hearing, two documents
the INS furnished his counsel just before that hearing. These
documents related to an incident at the Niagara River in New York
in July 1990, at which Petitioner was detained or questioned on
suspicion of alien smuggling. Petitioner's counsel asked for "a
short continuance to allow me to investigate the status of these
allegations," but when the IJ thereafter indicated that these would
likely only be rebuttal evidence as to which Petitioner would not
be entitled to a continuance, Petitioner's counsel responded by
saying, "The only reason I would request a continuance would be to
evaluate the request for relief which my client has made." The IJ
then allowed a half-hour recess. Later in the hearing, the INS
offered the documents. Petitioner's counsel objected on grounds of
relevancy, and because the documents allegedly referred to
contradictory dates and one was undated. The IJ stated he would
withhold ruling "until after I hear what testimony may be developed
to show the relevancy" and "I'll give you an opportunity to object
to the documents later." Later in the hearing the INS reoffered
the documents, but Petitioner's counsel made no objection. Before
the BIA, Petitioner (represented by counsel) did not question the
relevancy or authenticity of the documents. The incident to which
the documents related was mentioned in Petitioner's application for
suspension of deportation, and Petitioner's counsel had been
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specifically questioned about it by the IJ at the earlier February
1991 hearing. Petitioner testified about the July 1990 Niagara
incident at the June 20, 1991, hearing. Although Petitioner's
counsel stated at the June 20 hearing "we previously requested the
documents concerning this respondent from the Immigration Service,"
no such request, nor any evidence of it, is in the record. Nothing
indicates that the BIA relied on the documents in determining not
to grant Petitioner voluntary departure. We conclude that
Petitioner has not established that the proceedings below denied
him due process.
Petitioner's only remaining claim is that the evidence does
not sustain the BIA's determination that he did not merit the
discretionary relief of voluntary departure, and that the BIA
abused its discretion in declining to grant such relief. This is
a matter which is committed to the discretion of the BIA, and we
can find no abuse of discretion. It considered the evidence
favorable to petitioner and evidence unfavorable to himSQapart from
the challenged documents which it did not purport to rely on in
this connection. On our review of the record, we cannot say that
the BIA's ultimate decision was irrational or arbitrary or without
reasonable support (wholly apart from the challenged documents).
We reject Petitioner's contention in this respect.
Accordingly, the decision of the BIA is
AFFIRMED.
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