Not for P ublication in West's Fe deral Reporter)



# U nitedStates C ou rt of App eals

For th e Firs t C ircuit

No. 07-1981 MUSA KARIM, Petitioner,

v. MICHAEL MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Torruella, Circuit Judge, Selya, Senior Circuit Judge, and Lipez, Circuit Judge.

Musa Karim on brief pro se. Corey L. Farrell, Attorney, Depa r tment of Justice, Civil Division, Terri J. Scadron, Assistant D i r e ctor, and Jeffrey S. Bucholtz, Acting Attorney General, on brief for respondent.

March 13, 2008-2- Per Curiam. Petitioner Musa Karim petitions for review of the decision by the Boar d of Immigration Appeals (BIA) di s m i s s i n g h i s a p p e a l f r o m t h e d e c i s i o n o f t h e I mm i g r a t i o n Judge (IJ) ordering him removed to Kenya for being an alien in violation of his immigration status, pursuant to 8 U.S.C. § 1227(a)(1)(C)(i). Kar i mc o n t e n d s t h a t t h e B I Ae r r e di n r e j e c t i n gh i s c l a i mo f U.S. citizenship and his claims of violations of procedural due process in his immigration proceedings. We deny the petition for review.

"We review the BIA's decisions under th e 'substantial evidence' standard, which means we will uphold the decision if it is 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.' This is a deferential standard, and we will reverse t h e B I A only if the evidence compels that result." Attia v. Gonzales, 477 F.3d 21, 23 (1st Cir. 2007).

Karim's central claim is that the IJ and BIA improperly shifted the burden of proving alienage to him and relied upon evidence that was obtained as a result of the government's alleged "egregious" and unc onstitutional conduct in searching his home. The record reveals, how e v e r , that the IJ properly relied upon Karim's pleading, submitted in September 2005, in which he (through counsel) admitted the factual allegations in the Notice to Appear (NTA), including the allegation that he was not a United States citizen. The pleading satisfied the government's b u r d en. "[T]he government need o n l y establish the [individual's] identity and-3-

alienage to meet its burden on deportation. The burden then shifts to the [individual] to show the time, place, and manner of entry in order to defeat deportation." Navarro-Chalan v. Ashcroft, 359 F.3d 19, 22 (1st Cir. 2004).

Karmir argues that he should be permitted to withdraw the concess i o n in his pleading because he never specifically authorized his attorney to concede the facts alleged in the NTA. However, Kamir has not alleged that he did not authorize Attorney Macarius to represent him at the September 29, 2005 hearing, in which Kamir participated via televideo conferencing and at which time the pleading was submitted without objection. "[A]ll that is required for an attorney's conce s s i o n to be binding on an alien is the authoriz a t i o n of representation." Pietrzak v. Mukasey, ___F.3d ___, (2d Cir. 2008) [ 2 0 0 8 WL 142796, at *2]. Nor has Karim shown that his attorney engaged in the kind of "egregious" conduct that might warrant releasing Karim from his attorney's concessions. See id. Karim himself contends that he only became aware that he was a United States citizen two months before his February 8, 2007 hearing, long after the pleading wasIn light of Kari m ' s pleading admitting alienage, it is 1 unnecessary to consider his claim that reliance upon his passport, visa and other documents seized during the search of his apartment violated his Fourth Amendment and due process rights. See Kandamar v. Gonzales, 464 F.3d 65, 74 (1s t C ir. 2006) (holding that any error that occurred from allegedly unconstitutional seizure would b e h a r m l e s s i n l i g h t o f u n t a i n t e de v i d e n c e o f p e t i t i o ner's removability). -4- submitted. He has otherwise failed to allege that the pleading 1 contained false information.

In all events, the record supports the BIA's f i nding that Karim, after claiming U.S. citizenship for the first time in January 2007, p r o v i ded "no evidence that he was born in the United States." The additional evidence submitted to the BIA on appeal, consisted only of the passport and death certificate for Ruth Schaffner, without explanation of Karim's rela t i o nship to Schaffner or the effect of that relationship upon his citizenship status. Therefore, we conclude that the BIA s u p portably found that such evidence did "not require a rem and for its consideration."

The BIA's rulings on Karim's remaining claims are fully supported by the record. Karim argues that the IJ erred in recalendaring his case without conforming to the regulations that govern re-opening of an immigration case. The record establishes that the case was "administratively closed" in October 2005, and "re-calendared" in November 2006. "Administrative closure is a procedural convenience that may be granted if both parties to the-5-

removal proceedings agree, but it does not constitute a final order. . . Rather, administrative closure of a case temporarily removes a case from an immigration judge's calendar or from the B o a r d's docket." Lopez-Reyes v. Gonzales, 496 F.3d 20, 21 (1st Cir. 2007)(emphasis added). The BIA p r o p e r ly found that the Department of Homeland Security " was not required to meet the requirements of a mot i o n to reopen." And because the administrative closure did not constitute a final order, Karim's res judicata and double jeopardy claims lack merit.

The BIA properly ruled t h a t the IJ did not err in deter mining that Karim's applications for relief from removal were abandoned after he failed to meet the extended deadline for filing them. The only explanation Karim gave for his failure to conform with the deadline was his claim of U.S. citizenship. He request ed a continuance to obtain documents to present to the court. But he did not specify that the documents related to applications for relief from removal. In the absence of a showing by Karim of good caus e , t h e IJ did not abuse his discretion in failing to grant another continuance. See Alsamhouri v. Gonzales, 484 F.3d 117, 1 2 2 ( 1 s t Cir. 2007). As the BIA properly found, Karim has never explained what evidence he would have presented in support of his applications for relief . T h e refore, he has failed to s how prejudice from the IJ's determination that the applications were abandoned.-6- Karim's remaining claims relating to evidentiary rulings during his immigration proceedings are without merit. "The Federal Rules of Evidenc e d o n ot apply in [immigration] proceedings, but the less rigid constraints of due process impose outer limits based upon conside rations of fairness and reliability . " Y o n go v. INS, 355 F.3d 27, 30 (1st Cir. 2004). Karim has not explained how being provided in advance with copies of documents submitted into evidence by the government would have

m a d e a d i f f e r e n c e i n t h e o u t c o m e o f h i s c a s e . " I t i s beyond peradventure that before a petitioner in an immigration case may adva n c e a p r o c e d u r a l d u e p r o c e s s c l a i m , h e m u s t a l l e g e s o me cognizable prejudice fairly attributabl e to the challenged process." Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004). As discussed above, t he IJ appropriately relied upon Karim's concession to the facts alleged in the NTA in determining that he was removable as charged. To the extent that the IJ relied upon Karim's conviction for marriage fraud, it was only in denying his request for voluntary departure. "[B]y statute, this court lacks authority to review a refusal to a l low voluntary departure." Karim v. Gonzales, 424 F.3d 109, 112 (1st Cir. 2005).

Fi nally, the record supports the BIA's finding that there was "no evidence of improper conduct on the part of counsel [for the government]" in Karim's immigration proceedings.-7- The decision of the BIA dismissin g Karim's appeal is affirmed and the petition for review is denied.