Abramian v. Ashcroft , 108 F. App'x 644 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1316
VIATCHESLAV G. ABRAMIAN,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge and
Lynch, Circuit Judge.
Viatcheslav G. Abramian on brief pro se.
Peter D. Keisler, Assistant Attorney General, Linda S.
Wernery, Senior Litigation Counsel, and Lyle D. Jentzer, Trial
Attorney, U.S. Department of Justice on brief for respondent.
September 14, 2004
Per Curiam. Pro se petitioner Viatcheslav G. Abramian
("Abramian"), a native and citizen of the former Union of Soviet
Socialist Republics ("USSR"), seeks judicial review of a final
order of deportation. For the following reasons, the petition is
denied.
Abramian's claims that the Immigration Judge ("IJ") acted
"irrationally" during his hearing, was not impartial and should
have been disqualified for having a personal interest in the case,
and erred in not finding him "stateless" are all waived because
Abramian did not raise them in his appeal to the Board of
Immigration Appeals ("BIA"). "Issues not raised before the Board
may not be raised for the first time upon judicial review of the
Board's decisions." Ravindran v. INS, 976 F.2d 754, 761 (1st Cir.
1992).1
Each of these claims lacks merit in any event. First,
the IJ's remark that the immigration hearing was not a "forum for
a civil suit" was not directed toward Abramian's immigration case,
but, rather, toward his employment discrimination case against
1
Since the deportation proceedings were initiated before
4/1/97 and the final order of deportation was issued after
10/31/96, this petition is governed by the transitional rules
for judicial review set forth in IIRIRA § 309(c)(4) and former
INA § 106, 8 U.S.C. § 1105a. Bernal-Vallejo v. INS, 195 F.3d
56, 61 (1st Cir. 1999). Pursuant to former INA § 106(c), "[a]n
order of deportation or of exclusion shall not be reviewed by
any court if the alien has not exhausted the administrative
remedies available to him as of right under the immigration
laws and regulations."
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Harvard University. The IJ made the comment after Abramian's
counsel had questioned Abramian at some length about the Harvard
lawsuit. Rather than act irrationally, the IJ properly cut off
testimony that was cumulative and not pertinent. Laurent v.
Ashcroft, 359 F.3d 59, 62-63 (1st Cir. 2004). Second, the IJ's
review of Abramian's asylum claim was proper because it was made in
light of changed country conditions and a change in the country of
deportation. Cf. 8 U.S.C. § 1101(a)(42)(A) (requiring
country-specific showings for asylum relief). Third, Abramian's
allegation that the IJ had the bomb squad investigate an envelope
from the Boston Herald has no support in the record. Fourth,
Abramian has not presented any evidence of bias beyond mere
conjecture, nor does the record suggest any partiality. Finally,
Abramian's desire to remain in the United States rather than be
deported to any other country does not render him stateless. Nor
is he rendered stateless by his failure to apply for citizenship
that is available to him. E.g., Oboroznaya v. INS, 168 F.3d 500,
1998 WL 879709, *2 (9th Cir. 1998) (unpublished) (holding that BIA
properly rejected stateless claim where petitioner was entitled to
return to former Soviet country and obtain citizenship); see also
Kovalev v. Ashcroft, 223 F. Supp.2d 688, 692 & n.3 (E.D. Pa. 2002)
(rejecting stateless claim in habeas motion where petitioner was
eligible to apply for Russian citizenship).
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With respect to Abramian's claim that the IJ erred in
denying his application for suspension of deportation based on
failure to show extreme hardship, we lack jurisdiction to consider
that claim. Mendes v. INS, 197 F.3d 6, 11 (1st Cir. 1999)
(holding, under transitional rules, that existence of extreme
hardship was determination committed to agency discretion and
therefore unreviewable); Bernal-Vallejo, 195 F.3d at 63(characterizing BIA determination that alien had not demonstrated
extreme hardship as unreviewable discretionary decision).
Finally, there is Abramian's claim that the IJ violated
his due process rights by not granting his counsel's request for a
continuance to procure the testimony of an additional witness and
by not allowing his counsel to present a closing argument. We
review de novo the question of whether an administrative law
judge's conduct violates due process. Aguilar-Solis v. INS, 168
F.3d 565, 568 (1st Cir. 1999). "An immigration judge, like other
judicial officers, possesses broad (though not uncabined)
discretion over the conduct of trial proceedings." Id.There was no abuse of discretion here. As noted earlier,
judges have considerable leeway to cut off cumulative or redundant
testimony. Laurent, 359 F.3d at 63. In requesting a continuance
to procure the testimony of an additional witness, Abramian's
counsel stated that "there is a woman that we've been trying to
chase down at the shelter who actually was a case worker and I
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think would testify about his, not only his moral character but the
kind of example he set in adversity." There was no issue
concerning Abramian's moral character. Moreover, Abramian
testified in detail about how, by working two jobs and continuing
his education, he made a contribution to his community by setting
a good example and becoming a role model to other homeless people.
Other witnesses also gave evidence concerning Abramian's hard work
and educational achievements. The IJ credited Ambramian's
achievements but concluded that they were "largely for his self-
improvement" and did not "constitute[] the type of contribution to
the community that [the BIA] envisioned" to demonstrate extreme
hardship. The proposed testimony would have merely reasserted
information that the IJ considered and credited but deemed
inadequate to establish extreme hardship.2
Nor did the IJ abuse her discretion by denying
Abramian's counsel the opportunity to make a closing argument.
While it may be better practice for an IJ to allow each party to
present a closing argument, Abramian does not identify any
prejudice resulting from his lack of an opportunity to do so,
arguing only generally that a closing argument "would have helped
2
Abramian also failed to name this witness, indicate how
long he believed it would take to find her and secure her
testimony, or make a specific proffer of her testimony. Thus,
there is no evidence that Abramian could have found and
produced this witness, even if he had been granted a
continuance.
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the court to understand the significance of the evidence presented
. . . and its relevance to the elements of his case." There is
nothing in the record to indicate that the IJ did not fully
understand the significance of the evidence presented. Rather, it
appears that the IJ understood the evidence but did not believe
that it warranted relief. E.g., Yap v. INS, 318 F.2d 839, 841 (7th
Cir. 1963) (holding that IJ did not abuse discretion by failing to
grant closing argument where "oral argument could have added
nothing"); see also Castellano-Chacon v. INS, 341 F.3d 533, 553
(6th Cir. 2003) (holding that alien's contentions that he had no
opportunity to present case in concise narrative form, to argue the
law, or to hear his chosen advocate plead for his life did not
establish prejudice).
The petition for review is denied. See 1st Cir. R.
27(c).
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