UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IMARHIAGBE UWAGBOE,

Petitioner-Appellant,

v.

No. 95-2838

DON CROCETTI, Director,

Immigration & Naturalization

Service,

Respondent-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

M. J. Garbis, District Judge.

(CA-94-2952-MJG)

Argued: January 27, 1997

Decided: March 18, 1997

Before HALL and MICHAEL, Circuit Judges, and PHILLIPS,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Lloyd Felix Ukwu, UKWU & ASSOCIATES, CHARTERED, Washington, D.C., for Appellant. Michelle Arlene Gluck,

Office of Immigration Litigation, Civil Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON

BRIEF: Frank W. Hunger, Assistant Attorney General, Stephen W.
Funk, Senior Litigation Counsel, Office of Immigration Litigation,

Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Imarhiagbe Uwagboe, a citizen of Nigeria, appeals the district

court's order denying his petition for a writ of habeas corpus. We

affirm.

I

Uwagboe attempted to enter the United States on August 25, 1993,

and was detained by immigration officials at JFK Airport in New

York. He admitted excludability at his first appearance before the

Immigration Judge (IJ) on May 4, 1994, and was granted a continuance to allow him to file an application for asylum. His counsel

agreed to a trial date for the following August 19.

Uwagboe appeared without counsel for the trial and explained that

his lawyer had another case "somewhere else." The IJ then discovered

a motion for a continuance that had been filed two days earlier by

Uwagboe's counsel. The motion cited a conflict with a settlement

conference in a District of Columbia court that had been scheduled on

July 8, 1994. The IJ denied the continuance on the ground that the

motion was untimely filed under local rules and that the matter in the

other court was set two months after counsel had notice of the date

for the asylum trial.

Uwagboe then had his trial. His asylum application, which had

been prepared by his lawyer, was admitted as the only exhibit. He tes-

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tified that he was a student leader involved in protests against the government in his native Nigeria and that he had been arrested and

physically mistreated on two occasions in mid-1993. Believing that he

was wanted by the authorities, he bought a fake green card and travelled to the United States in August 1993. He was cross-examined

about discrepancies among his testimony, his asylum application, and

a signed statement given to INS officials when he was first detained

in New York.

The IJ denied the application for asylum and ordered Uwagboe

excluded and deported from the United States. The IJ noted the lack

of any corroborative evidence regarding Uwagboe's prior arrests, his

status as a student leader, or his assertion that he was wanted by the

authorities. Recognizing that such evidence is often unavailable to an

alien professing a fear of persecution in his native land, the IJ also

found "numerous inconsistencies" between his testimony and his

application, particularly with regard to dates and places of arrests.

Uwagboe was given until August 29, 1994, to file an appeal to the

Board of Immigration Appeals (Board or BIA). See 8 C.F.R. § 3.31(c)

(1994) (notice of appeal must be filed within period set by IJ).

Instead, on August 25, claiming that he had newly discovered evidence in support of the asylum claim, Uwagboe's counsel filed a

motion with the IJ to reopen the proceedings. This new evidence,

however, was in no way described in the motion. Counsel did attach

several documents regarding a scheduling conflict that prevented him

from appearing at the August 19th asylum hearing; the conflict

described, however, differed from the one cited in the motion for a

continuance that was denied by the IJ at the August 19th trial. This

motion to reopen was denied on September 13, 1994, and Uwagboe

filed a notice of appeal to the Board ten days later.

On March 2, 1995, the Board dismissed the appeal to the extent

that it sought review of the IJ's August 19, 1994, decision on the merits, because the notice of appeal was filed after the ten-day appeal

period had expired. With regard to the timely appeal of the IJ's September 23rd order denying the motion to reopen, the Board ruled that

the IJ did not abuse his discretion in denying the motion to continue

and, moreover, that the lack of counsel at the August 19th hearing did

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not materially affect the outcome of the case. Accordingly, the appeal

of the IJ's August 25th order was dismissed as well.

In November 1994, while his appeal was pending before the Board,

Uwagboe filed a petition for a writ of habeas corpus in the federal district court in Maryland. In the interest of judicial economy, the district

court permitted Uwagboe to amend the habeas petition after the

Board's decision was issued to include a challenge to the Board's

refusal to reopen asylum hearings to allow him to supplement the

record with new evidence. See 8 U.S.C.A.§ 1105a(b) (West 1970)

(habeas proceeding is the sole means of obtaining judicial review of

a final order of exclusion). Included with this amended petition was

new evidence consisting of lengthy newspaper accounts of the Nigerian government's recent crackdown on dissidents and Nigerian court

documents dated February 28, 1995, concerning the arrest and detention of Uwagboe's brother. One of these documents was an affidavit

prepared by Uwagboe's mother in which she asserts that the government authorities are searching for Uwagboe because he is accused of

being trained "for military activities against the government." All the

documents bear a seal from a "State High Court."

The matter was referred to a magistrate judge for a report and recommendation. On July 19, 1995, the magistrate judge issued a report

in which he found no abuse of discretion by the Board in refusing to

reopen the asylum proceedings. The new evidence submitted with the

amended habeas petition was not considered because it had not been

previously submitted to the Board. The district court adopted the

report on September 18, 1995.

On October 17, 1995, Uwagboe filed a "Petition for Review" of the

Board's "final order of deportation" and of the district court's September 18th order denying the habeas petition. On February 27, 1996,

we dismissed the petition as untimely to the extent it purported to

seek review of the Board's March 2, 1995, order. See 8 U.S.C.A.

§ 1105a(a)(1) (West Supp. 1995) (petition for review must be filed

within 90 days of the issuance of the final deportation order). We construed the petition for review as a timely appeal of the district court's

order.

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II

Denials of habeas petitions are reviewed de novo . See Chen v.

Carroll, 48 F.3d 1331, 1338 (4th Cir. 1995). The Board's decision to

refuse to reopen Uwagboe's deportation proceedings is reviewed for

abuse of discretion. See M.A. v. I.N.S., 899 F.2d 304, 307 (4th Cir.

1990) (en banc). In the absence of any attempt to introduce new evidence before the IJ or the Board, our task essentially involves whether

the IJ abused his discretion in refusing to continue the August 19,

1994, asylum trial.

Uwagboe's motion to reopen contained nothing new beyond an

explanation of a purported typographical error by his counsel's secretary that affected only one insubstantial evidentiary aspect of his asylum claim. Instead of offering new evidence or an explanation of the

discrepancies that led the IJ to deny the asylum request, his motion

focused on the IJ's refusal to continue the hearing to allow his lawyer

to appear.

The Board adequately discussed why this refusal would not merit

reopening. First, the continuance motion was untimely and was not

served on opposing counsel; local rules require that such a motion be

filed at least fifteen days prior to the hearing. Second, the reason

given on the initial written motion for continuance-- a previously

scheduled settlement conference in a civil action-- differed from the

reason given in the reopening motion -- a bond hearing in a criminal

matter in federal district court. Third, the IJ found, and the Board

agreed, that the absence of counsel did not materially prejudice

Uwagboe's case for asylum. While we are not prepared to unequivocally state that competent counsel would not have been able to

explain the apparent discrepancies in Uwagboe's case, we are unable

to find that the Board abused its discretion in refusing to reopen. See

I.N.S. v. Abudu, 485 U.S. 94, 110 (1988) (petitions to reopen are disfavored).

III

At its core, Uwagboe's habeas petition and this appeal are attempts

to obtain consideration of evidence that only came into being after the

Board had rendered its final decision. If genuine, this evidence, par-

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ticularly the court documents and Uwagboe's mother's affidavit, offer

powerful corroboration of Uwagboe's claim that he is in mortal danger should he return to Nigeria. During oral argument and in a supplemental submission to this court, the I.N.S. has pointed out that the

proper means of bringing new evidence in support of an asylum

request is through a motion to reopen filed with the Board. The relevant regulation, 8 C.F.R. § 3.2, currently provides in pertinent part as

follows:

 (c) Motion to Reopen. (1) A motion to reopen proceedings shall state the new facts that will be proven at a hearing

to be held if the motion is granted and shall be supported by

affidavits or other evidentiary material. . . . A motion to

reopen proceedings shall not be granted unless it appears to

the Board that evidence sought to be offered is material and

was not available and could not have been discovered or

presented at the former hearing[.]

There are numerical and time limitations to such motions that may

apply to Uwagboe unless the new evidence he seeks to offer in support of his asylum claim is "based on changed circumstances arising

in the country of nationality." See 8 C.F.R. § 3.2(c)(2)-(3) (1996).*

Nevertheless, the regulations are clear as to how to go about bringing

new evidence before the Board, and Uwagboe would be well advised

to adhere to the proper procedure if he has not already done so.

AFFIRMED

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*Effective April 1, 1997, these regulations are codified in the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.

104-208 § 304(a)(3), 110 Stat. 3009 (1996).

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