Obiamalu v. INS ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSIAH CHUCKS OBIAMALU,
Petitioner,
v.
No. 96-1213
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A28-352-614)
Submitted: March 4, 1997
Decided: April 23, 1997
Before HALL and WILKINS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Albert A. Ngwana, Silver Spring, Maryland, for Petitioner. Frank W.
Hunger, Assistant Attorney General, Linda S. Wendtland, Senior
Liti-
gation Counsel, Quynh Vu, Office of Immigration Litigation,
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Unpublished opinions are not binding precedent in this circuit.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:
Josiah Obiamalu, a citizen and national of Nigeria, petitions for
review of an order of the Board of Immigration Appeals ("Board").
The Board dismissed Obiamalu's appeal from the decision of an
Immigration Judge ("IJ") finding Obiamalu deportable and denying
his application for a waiver of deportability under§ 212(c), 8
U.S.C.A. § 1182(c) (West Supp. 1996). We affirm.
Obiamalu entered the United States as a student in 1982 and
became a lawful permanent resident in 1988 after marrying a United
States citizen. From 1984 to 1992, Obiamalu was convicted of
writing
worthless checks, assaulting his pregnant wife, credit card fraud,
bank
fraud, criminal attempt, and resisting arrest.
In 1993, the Immigration and Naturalization Service ("INS") insti-
tuted deportation proceedings against Obiamalu while he was serving
a prison sentence in Maryland. Following his release from prison in
1995, the INS held a hearing. Following the hearing, the IJ
concluded
that Obiamalu was deportable based on his criminal history.
In his appeal to the Board, Obiamalu asserted that he was denied
due process on the grounds that the IJ failed to grant a
continuance
of the hearing so that Obiamalu could gather necessary documents,
that he received ineffective assistance of counsel, and that he did
not
receive adequate notice of the date and time of the hearing.
Obiamalu
also asserted that the IJ abused his discretion in denying his
request
for a waiver under § 212(c). The Board upheld the finding of the IJ
and Obiamalu raises the same arguments to this Court.
To prevail on a claim of deprivation of due process, the alien must
show that the alleged violations rise to the level of
constitutional
defects, and are not just abuses of administrative or judicial
discre-
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tion. Gandarillas-Zambrana v. Board of Immigration Appeals , 44
F.3d 1251, 1255 (4th Cir. 1995). Obiamalu failed to show that the
IJ
abused his discretion in denying a continuance because Obiamalu
could not show good cause as to why he could not produce documents
in his favor when he had two years to collect such documents. 8
C.F.R. § 242.13 (1995). Obiamalu failed to provide affidavits or
other
evidence demonstrating that his counsel's performance was so defi-
cient as to have violated his Fifth Amendment right to due process.
See Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th Cir. 1986);
see generally Figeroa v. INS , 886 F.2d 76, 78-79 (4th Cir. 1989).
Finally, Obiamalu received written notice containing the correct
date
and time of the hearing a month before the hearing took place; he
was
not harmed by the change in hearing date given the timely
notification
he received.
Obiamalu also appeals the Board's denial of his application for a
discretionary waiver of deportation under § 212(c). We review this
decision for abuse of discretion, and uphold it unless it is
arbitrary or
capricious. Casalena v. INS, 984 F.2d 105, 106 (4th Cir. 1993). The
alien bears the burden of showing that he merits favorable action.
Id.Obiamalu meets the statutory requirements for the waiver, but fails
to
carry his burden of convincing the Board that he deserves the
favor-
able exercise of discretion. See Casalena, 984 F.2d at 107 n.6.
In considering a § 212(c) application, the Board must balance
social and humane considerations in the applicant's favor against
adverse factors that show his undesirability as a permanent
resident.
Cortes-Castillo v. INS, 997 F.2d 1199, 1202 (7th Cir. 1993). The IJ
considered all the relevant factors. In Obiamalu's favor, the IJ
consid-
ered that Obiamalu had been in this country for nearly thirteen
years
and had a daughter. On the negative side, the IJ noted Obiamalu's
criminal history, divorce from his wife, the fact that he had not
sup-
ported his daughter since 1992, and that his claims of extreme
hard-
ship were not credible. Accordingly, the IJ denied a§ 212(c)
waiver.
The Board affirmed, noting Obiamalu's continued criminal activity
following his first § 212(c) waiver and finding that the equities
did
not outweigh the criminal behavior.
We do not have authority to determine the weight to be given each
factor, Gouveia v. INS, 980 F.2d 814, 818-19 (1st Cir. 1992),
includ-
3
ing the applicant's criminal record. Hajiani-Niroumand v. INS, 26
F.3d 832, 836 (8th Cir. 1994). Even a showing of outstanding
equities
does not require relief if the BIA in its discretion decides that
the
equities are outweighed by negative factors. Gandarillas-Zambrana,
44 F.3d at 1259 n.4. We conclude that the Board appropriately exer-
cised its discretion in this case.
Accordingly, we affirm the Board's order. We dispense with oral
argument because the facts and legal contentions are adequately
pres-
ented in the materials before the court and argument would not aid
the
decisional process.
AFFIRMED
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