Okeke v. INS ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NNAMDI REGINALD OKEKE,
Petitioner,
v.
No. 95-2559
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Immigration and Naturalization Service.
(A29-695-906)
Submitted: May 7, 1996
Decided: May 22, 1996
Before MURNAGHAN, ERVIN, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Thanos Kanellakos, Baltimore, Maryland, for Petitioner. Frank W.
Hunger, Assistant Attorney General, Richard M. Evans, Assistant
Director, Christine Bither, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nnamdi Reginald Okeke, a native and citizen of Nigeria, appeals
from a Board of Immigration Appeals ("BIA") order that denied his
request for an extension of time to file his application for adjustment
of status and denied his motion to reopen. Because we find that the
record supports the BIA's denial of permission to file out of time and
that the BIA did not abuse its discretion in denying Okeke's motion
to reopen, we affirm the BIA's order.
I.
At his deportation hearing, Okeke conceded deportability but
requested time to file an application to adjust his status to that of a
lawful permanent resident based on his marriage to a United States
citizen. The Immigration Judge ("IJ") granted him until November 25,
1992,1 to file his adjustment application.
In a memorandum to the IJ dated November 10, 1992, Okeke,
through his attorney, requested an additional thirty days to file the
application. Counsel asserted that he
had some difficulty in getting Mrs. Sharon Okeke to visit
[his] office to sign Form I-130. [He also claimed that his]
client . . . need[ed] more time to have the medical examina-
tion performed and to have the necessary photos taken.
On November 12, 1992, the clerk of the immigration court returned
the motion to Okeke, because it did not have a proposed order
attached. However, the clerk's notice that was sent to Okeke incor-
rectly stated that the motion was being returned for failure to serve
the opposing party.
_________________________________________________________________
1 The parties dispute the date on which the adjustment application was
due. Although the IJ states in his initial decision that the deadline was
November 25, Okeke's counsel asserts that the due date was November
13. The administrative record does not include a transcript of the hearing
during which the date was set.
2
On November 30, Okeke filed a memorandum alleging that the
clerk was mistaken in stating that he had not served the INS. How-
ever, he did not attach an adjustment application or offer an explana-
tion as to why it had not been filed. On December 2, the IJ found that
Okeke had abandoned his application for adjustment of status. The IJ
did not address Okeke's motion for an extension, and Okeke did not
appeal.
On January 28, 1993, Okeke filed a motion to reconsider, which
again did not include either the adjustment application or an explana-
tion as to why it was not attached. Okeke asserted that the clerk's
erroneous notice prevented him from timely filing a motion for an
extension. The IJ denied the motion for reconsideration, finding that
Okeke had failed to posit a satisfactory explanation warranting an
extension. The IJ further found that, because Okeke still had not filed
his adjustment application, there was nothing to reconsider and the
application was properly found to have been abandoned.
Okeke appealed that decision to the BIA and moved to reopen his
case based on the adjustment application which he submitted with his
appeal. Okeke contended that the IJ abused his discretion by not per-
mitting Okeke to file his application out of time when a clerical mis-
take had caused confusion. The BIA dismissed the appeal and denied
the motion to reopen, finding that Okeke's visa petition was incom-
plete and he was therefore not prima facie eligible for adjustment of
status.
Okeke filed a timely petition for review with this court. He asserts
that the BIA abused its discretion by refusing to extend the time
period for Okeke to file the required applications and by denying his
motion to reopen.
II.
The regulation governing the submission of applications provides:
[t]he Immigration Judge may set and extend time limits for
the filing of applications and related documents and
responses thereto, if any. If an application or document is
3
not filed within the time set by the Immigration Judge, the
opportunity to file that application or document shall be
deemed waived.
8 C.F.R. § 3.31(c) (1995). Because the IJ possesses the power to set
time limits, the mere request of an extension does not obligate the IJ
to grant one. See Patel v. INS, 803 F.2d 804, 806 (5th Cir. 1986) (sub-
mission of a motion for a continuance does not relieve an alien of the
obligation to appear at the hearing).
Okeke contends that the BIA improperly affirmed the IJ's denial
of his motion to reconsider because a "clerical error" led to the IJ's
determination that Okeke had abandoned his application for adjust-
ment of status. However, since it is undisputed that Okeke never
attempted to file his application within the time period set by the IJ,
the IJ was required to consider his application waived. 8 C.F.R.
§ 3.31(c).
Furthermore, the clerk's error, at most, caused the IJ to rule before
having seen or considered Okeke's timely motion for an extension.2
Nonetheless, any clerical error was harmless because, on reconsidera-
tion, the IJ explicitly stated that Okeke's explanation would not have
warranted any further time for filing. Therefore, because Okeke failed
to timely file his adjustment application, the IJ did not err in finding
that Okeke had abandoned his application.
III.
A motion to reopen should be denied if the movant has not estab-
lished a prima facie case for the underlying relief sought. M.A. v. INS,
899 F.2d 304, 308 (4th Cir. 1990) (in banc). We review the BIA's
denial of a motion to reopen for lack of prima facie eligibility under
an abuse of discretion standard. Id. Denial of a motion to reopen
"must be reviewed with extreme deference," since immigration stat-
utes do not contemplate reopening and the applicable regulations dis-
favor motions to reopen. Id._________________________________________________________________
2 However, in light of the fact that the motion was filed two days before
the IJ issued his decision, it appears likely that the IJ fully considered
Okeke's motion at that time.
4
By regulation, in order to establish the bona fides of his marital
relationship, Okeke was required to submit, inter alia, proof of the
legal termination of all of his and his wife's previous marriages. 8
C.F.R. § 204.2(a)(2) (1995). Although the marriage certificate identi-
fied both Okeke and his spouse as divorced, neither submitted any
legal documents proving that their prior marriages ended in divorce.
Furthermore, on appeal, Okeke does not contest the determination
that he failed to establish prima facie eligibility for adjustment of sta-
tus. Therefore, since Okeke did not satisfy the eligibility requirements
for a visa, the BIA did not abuse its discretion in denying Okeke's
motion to reopen.
IV.
For these reasons, we affirm the Board's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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