Knight v. INS ( 1995 )

USCA1 Opinion

          February 17, 1995
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT







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        No. 94-1651

         

                      DONOVAN ALBERT KNIGHT, A/K/A PAUL KNIGHT,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

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

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                                        Before

                                 Selya, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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            Paul Knight on brief pro se.
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            Frank W. Hunger,  Assistant Attorney General, Francesco Isgro  and
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        Donald E.  Keener, Office  of Immigration Litigation,  Civil Division,
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        Department of Justice, on brief for respondent. 


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                 Per  Curiam.  The instant pro se petition for review, in
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            which petitioner seeks  to challenge a decision of  the Board

            of Immigration  Appeals upholding his  order of  deportation,

            falters on procedural grounds.  In 1992, an Immigration Judge

            found that  petitioner, having  been convicted of  two crimes

            involving moral  turpitude, was  deportable under 8  U.S.C.  

            1251(a)(2) and was undeserving  of discretionary relief under

            8  U.S.C.   1182(c).  The Board of Immigration Appeals upheld

            this  ruling   in  a  decision  dated   September  21,  1993.

            Petitioner  failed  to seek  review in  this court  within 90

            days, as required  by 8  U.S.C.   1105a(a)(1).   Instead,  in

            March  1994,  he filed  a motion  to  reopen with  the Board,

            claiming that the decision  had not been delivered to  him in

            prison because its mailing label had omitted the alias ("Paul

            Knight")  under which he was incarcerated.   The Board denied

            the motion to  reopen, and petitioner filed a timely petition

            for  review.  In his  appellate brief, he  argues solely that

            the Board's September 1993 decision was in error. 

                 We lack jurisdiction to review the Board's 1993 decision

            because  of  petitioner's  failure   to  seek  timely  review

            thereof.  See, e.g., Amaral v. INS, 977 F.2d 33, 35 (1st Cir.
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            1992)   (compliance   with   statutory   filing   period   is

            jurisdictional  prerequisite);  Pimental-Romero  v. INS,  952
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            F.2d 564,  564 (1st  Cir. 1991)  (same).  As  such, the  only

            matter open  for  review  is the  propriety  of  the  Board's



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            decision  not to reopen the case.  Petitioner has waived this

            issue,  however,  by failing  to  advance  any argument  with

            regard  thereto in his appellate brief.  See, e.g., Lareau v.
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            Page, 39 F.3d 384, 390 n.3 (1st Cir. 1994); Charles  v. Rice,
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            28 F.3d 1312, 1320 (1st Cir. 1994). 

                 We  add  that  the  two  Board  decisions  appear  fully

            supportable in any event.  Its conclusion that petitioner was

            responsible for any confusion  as to the name under  which he

            received mail was well within its discretion.  See, e.g., INS
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            v. Doherty, 112 S.  Ct. 719, 725 (1992) (denial  of motion to
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            reopen subject to review under abuse of discretion standard).

            Its  determination  that  petitioner's  1983  conviction  was

            "final"  for  immigration  purposes appears  unexceptionable.

            See, e.g.,  Morales-Alvarado v. INS,  655 F.2d 172,  175 (9th
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            Cir. 1981)  (a conviction is  final even  though "subject  to

            collateral  attack") (cited in White v. INS, 17 F.3d 475, 479
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            (1st  Cir. 1994)).   And its  finding that  petitioner's 1977

            conviction   was  established   by  clear,   unequivocal  and

            convincing evidence appears warranted on the facts presented.

                 The petition for review is denied.
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