Yeboua v. INS ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DESIRE KOFFI YEBOUA,
Petitioner,
v.
No. 96-1267
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A72-378-611)
Submitted: March 27, 1997
Decided: April 9, 1997
Before RUSSELL, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Petition denied by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Carrie Crawford, Washington, D.C., for Petitioner. Frank W. Hunger,
Assistant Attorney General, David J. Kline, Deputy Director, Jane
Gomez, 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Unpublished opinions are not binding precedent in this circuit.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:
Petitioner Desire Koffi Yeboua seeks review of the Board of Immi-
gration Appeals' order dismissing his appeal from an immigration
judge's order denying his motion to reopen his deportation proceed-
ings. The immigration judge held the proceedings in absentia as per-
mitted under 8 U.S.C. § 1252(b) (1994) where an alien "has been
given a reasonable opportunity to be present" at the hearing but fails
to appear. Yeboua argues that because he was not afforded effective
assistance of counsel regarding his in absentia proceeding, the immi-
gration judge erred in declining to reopen the proceeding. Yeboua fur-
ther contends that the INS failed to show that Yeboua received
sufficient notice of the hearing he missed and that the motion to
reopen should have been granted on that ground. See 8 U.S.C.
§ 1252B(c)(3)(B) (1994). For the reasons stated below, we deny the
petition for review.
Even as a threshold matter, Yeboua faces a difficult task in this
petition. This court reviews the denial of a motion to reopen a depor-
tation proceeding only for an abuse of discretion, see Yanez-Popp v.
INS, 998 F.2d 231, 234 (4th Cir. 1993), and will uphold the denial
absent a showing that the Board's action was arbitrary and capricious.
Gottesman v. INS, 33 F.3d 383, 389 (4th Cir. 1994). Yeboua does not
even suggest such egregious action on the part of the Board. More-
over, our review at this juncture does not encompass the merits of the
immigration judge's decision to order deportation, from which
Yeboua did not timely appeal. See, e.g., Aiyadurai v. INS, 683 F.2d
1195, 1198-99 (8th Cir. 1982).
In his appeal to the Board of Immigration Appeals, Yeboua pres-
ented two claims. He suggested that the immigration judge erred by
failing to consider the more lenient provisions of 8 C.F.R. § 242.22(1995) in declining to reopen the proceeding and that the judge erred
in failing to set bond. In this petition, Yeboua raises two entirely sepa-
rate issues of ineffective assistance of counsel and inadequate notice
from the INS of the scheduled hearing. "As a general rule, an alien
who has failed to raise claims during an appeal to the BIA has waived
his right to raise those claims before a federal court on appeal of those
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claims." Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990). Conse-
quently, this court need not address Yeboua's claims of ineffective
assistance of counsel and insufficient notice because he has waived
his right to present them in this forum.
Yeboua's petition for review is denied. 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.
PETITION DENIED
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