UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Immigration Appeals' order dismissing his appeal from an immigration

judge's order denying his motion to reopen his deportation proceedings. The immigration judge held the proceedings in absentia as permitted 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 immigration judge erred in declining to reopen the proceeding. Yeboua further 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 deportation 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. Moreover, 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 presented 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 separate 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). Consequently, 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 presented in the materials before the Court and argument would not aid

the decisional process.

PETITION DENIED

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