UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
IMARHIAGBE UWAGBOE,
Petitioner-Appellant,
v.
No. 95-2838
DON CROCETTI, Director,
Immigration & Naturalization
Service,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
M. J. Garbis, District Judge.
(CA-94-2952-MJG)
Argued: January 27, 1997
Decided: March 18, 1997
Before HALL and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Lloyd Felix Ukwu, UKWU & ASSOCIATES, CHAR-
TERED, Washington, D.C., for Appellant. Michelle Arlene Gluck,
Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Frank W. Hunger, Assistant Attorney General, Stephen W.
Funk, Senior Litigation Counsel, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Imarhiagbe Uwagboe, a citizen of Nigeria, appeals the district
court's order denying his petition for a writ of habeas corpus. We
affirm.
I
Uwagboe attempted to enter the United States on August 25, 1993,
and was detained by immigration officials at JFK Airport in New
York. He admitted excludability at his first appearance before the
Immigration Judge (IJ) on May 4, 1994, and was granted a continu-
ance to allow him to file an application for asylum. His counsel
agreed to a trial date for the following August 19.
Uwagboe appeared without counsel for the trial and explained that
his lawyer had another case "somewhere else." The IJ then discovered
a motion for a continuance that had been filed two days earlier by
Uwagboe's counsel. The motion cited a conflict with a settlement
conference in a District of Columbia court that had been scheduled on
July 8, 1994. The IJ denied the continuance on the ground that the
motion was untimely filed under local rules and that the matter in the
other court was set two months after counsel had notice of the date
for the asylum trial.
Uwagboe then had his trial. His asylum application, which had
been prepared by his lawyer, was admitted as the only exhibit. He tes-
2
tified that he was a student leader involved in protests against the gov-
ernment in his native Nigeria and that he had been arrested and
physically mistreated on two occasions in mid-1993. Believing that he
was wanted by the authorities, he bought a fake green card and trav-
elled to the United States in August 1993. He was cross-examined
about discrepancies among his testimony, his asylum application, and
a signed statement given to INS officials when he was first detained
in New York.
The IJ denied the application for asylum and ordered Uwagboe
excluded and deported from the United States. The IJ noted the lack
of any corroborative evidence regarding Uwagboe's prior arrests, his
status as a student leader, or his assertion that he was wanted by the
authorities. Recognizing that such evidence is often unavailable to an
alien professing a fear of persecution in his native land, the IJ also
found "numerous inconsistencies" between his testimony and his
application, particularly with regard to dates and places of arrests.
Uwagboe was given until August 29, 1994, to file an appeal to the
Board of Immigration Appeals (Board or BIA). See 8 C.F.R. § 3.31(c)
(1994) (notice of appeal must be filed within period set by IJ).
Instead, on August 25, claiming that he had newly discovered evi-
dence in support of the asylum claim, Uwagboe's counsel filed a
motion with the IJ to reopen the proceedings. This new evidence,
however, was in no way described in the motion. Counsel did attach
several documents regarding a scheduling conflict that prevented him
from appearing at the August 19th asylum hearing; the conflict
described, however, differed from the one cited in the motion for a
continuance that was denied by the IJ at the August 19th trial. This
motion to reopen was denied on September 13, 1994, and Uwagboe
filed a notice of appeal to the Board ten days later.
On March 2, 1995, the Board dismissed the appeal to the extent
that it sought review of the IJ's August 19, 1994, decision on the mer-
its, because the notice of appeal was filed after the ten-day appeal
period had expired. With regard to the timely appeal of the IJ's Sep-
tember 23rd order denying the motion to reopen, the Board ruled that
the IJ did not abuse his discretion in denying the motion to continue
and, moreover, that the lack of counsel at the August 19th hearing did
3
not materially affect the outcome of the case. Accordingly, the appeal
of the IJ's August 25th order was dismissed as well.
In November 1994, while his appeal was pending before the Board,
Uwagboe filed a petition for a writ of habeas corpus in the federal dis-
trict court in Maryland. In the interest of judicial economy, the district
court permitted Uwagboe to amend the habeas petition after the
Board's decision was issued to include a challenge to the Board's
refusal to reopen asylum hearings to allow him to supplement the
record with new evidence. See 8 U.S.C.A.§ 1105a(b) (West 1970)
(habeas proceeding is the sole means of obtaining judicial review of
a final order of exclusion). Included with this amended petition was
new evidence consisting of lengthy newspaper accounts of the Nige-
rian government's recent crackdown on dissidents and Nigerian court
documents dated February 28, 1995, concerning the arrest and deten-
tion of Uwagboe's brother. One of these documents was an affidavit
prepared by Uwagboe's mother in which she asserts that the govern-
ment authorities are searching for Uwagboe because he is accused of
being trained "for military activities against the government." All the
documents bear a seal from a "State High Court."
The matter was referred to a magistrate judge for a report and rec-
ommendation. On July 19, 1995, the magistrate judge issued a report
in which he found no abuse of discretion by the Board in refusing to
reopen the asylum proceedings. The new evidence submitted with the
amended habeas petition was not considered because it had not been
previously submitted to the Board. The district court adopted the
report on September 18, 1995.
On October 17, 1995, Uwagboe filed a "Petition for Review" of the
Board's "final order of deportation" and of the district court's Sep-
tember 18th order denying the habeas petition. On February 27, 1996,
we dismissed the petition as untimely to the extent it purported to
seek review of the Board's March 2, 1995, order. See 8 U.S.C.A.
§ 1105a(a)(1) (West Supp. 1995) (petition for review must be filed
within 90 days of the issuance of the final deportation order). We con-
strued the petition for review as a timely appeal of the district court's
order.
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II
Denials of habeas petitions are reviewed de novo . See Chen v.
Carroll, 48 F.3d 1331, 1338 (4th Cir. 1995). The Board's decision to
refuse to reopen Uwagboe's deportation proceedings is reviewed for
abuse of discretion. See M.A. v. I.N.S., 899 F.2d 304, 307 (4th Cir.
1990) (en banc). In the absence of any attempt to introduce new evi-
dence before the IJ or the Board, our task essentially involves whether
the IJ abused his discretion in refusing to continue the August 19,
1994, asylum trial.
Uwagboe's motion to reopen contained nothing new beyond an
explanation of a purported typographical error by his counsel's secre-
tary that affected only one insubstantial evidentiary aspect of his asy-
lum claim. Instead of offering new evidence or an explanation of the
discrepancies that led the IJ to deny the asylum request, his motion
focused on the IJ's refusal to continue the hearing to allow his lawyer
to appear.
The Board adequately discussed why this refusal would not merit
reopening. First, the continuance motion was untimely and was not
served on opposing counsel; local rules require that such a motion be
filed at least fifteen days prior to the hearing. Second, the reason
given on the initial written motion for continuance-- a previously
scheduled settlement conference in a civil action-- differed from the
reason given in the reopening motion -- a bond hearing in a criminal
matter in federal district court. Third, the IJ found, and the Board
agreed, that the absence of counsel did not materially prejudice
Uwagboe's case for asylum. While we are not prepared to unequivo-
cally state that competent counsel would not have been able to
explain the apparent discrepancies in Uwagboe's case, we are unable
to find that the Board abused its discretion in refusing to reopen. See
I.N.S. v. Abudu, 485 U.S. 94, 110 (1988) (petitions to reopen are dis-
favored).
III
At its core, Uwagboe's habeas petition and this appeal are attempts
to obtain consideration of evidence that only came into being after the
Board had rendered its final decision. If genuine, this evidence, par-
5
ticularly the court documents and Uwagboe's mother's affidavit, offer
powerful corroboration of Uwagboe's claim that he is in mortal dan-
ger should he return to Nigeria. During oral argument and in a supple-
mental submission to this court, the I.N.S. has pointed out that the
proper means of bringing new evidence in support of an asylum
request is through a motion to reopen filed with the Board. The rele-
vant regulation, 8 C.F.R. § 3.2, currently provides in pertinent part as
follows:
(c) Motion to Reopen. (1) A motion to reopen proceed-
ings shall state the new facts that will be proven at a hearing
to be held if the motion is granted and shall be supported by
affidavits or other evidentiary material. . . . A motion to
reopen proceedings shall not be granted unless it appears to
the Board that evidence sought to be offered is material and
was not available and could not have been discovered or
presented at the former hearing[.]
There are numerical and time limitations to such motions that may
apply to Uwagboe unless the new evidence he seeks to offer in sup-
port of his asylum claim is "based on changed circumstances arising
in the country of nationality." See 8 C.F.R. § 3.2(c)(2)-(3) (1996).*
Nevertheless, the regulations are clear as to how to go about bringing
new evidence before the Board, and Uwagboe would be well advised
to adhere to the proper procedure if he has not already done so.
AFFIRMED
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*Effective April 1, 1997, these regulations are codified in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
104-208 § 304(a)(3), 110 Stat. 3009 (1996).
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