UNPUBLISHED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Affirmed by unpublished per curiam opinion.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

Litigation 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Unpublished opinions are not binding precedent in this circuit.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") instituted 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

discre2
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 deficient 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

favorable 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

considered 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

supported his daughter since 1992, and that his claims of extreme

hardship 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),

includ3
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 exercised 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

presented in the materials before the court and argument would not aid

the

decisional process.

AFFIRMED

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