Dawodu v. INS ( 1994 )

USCA1 Opinion

        December 9, 1994        [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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        No. 94-1378

                                  STEPHEN O. DAWODU,

                                     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

                                  Cyr, Circuit Judge,
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                         Campbell, Senior Circuit Judge, and
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                                Stahl, Circuit Judge.
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            Stephen O. Dawodu on brief pro se.
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            Frank  W.  Hunger, Assistant  Attorney  General,  Civil  Division,
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        Nelda  C. Reyna and Richard M. Evans, Attorneys, Office of Immigration
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        Litigation, Civil Division, on brief for respondent.


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                      Per Curiam.  Petitioner Stephen Dawodu seeks review
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            of  a Board of  Immigration Appeals order  denying his motion

            seeking  reconsideration  of  the  Board's  dismissal  of his

            appeal from an  immigration judge's denial  of his motion  to

            reopen his deportation proceedings.  We deny the petition for

            review for the reasons  stated by the Board in  its decisions

            dated  February 23, 1994 and April 8,  1994.  We add only the

            following brief comments.

                      On   appeal,  Dawodu  suggests   that  one  of  the

            questions before us is the validity of his deportation order.

            We disagree.   Since Dawodu  failed to file  any appeal  from

            that order, the  only issue before us  is essentially whether

            his motion to reopen  was properly denied.  See  Aiyadurai v.
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            INS,  683  F.2d 1195,  1198-99  (8th  Cir. 1982).    Dawodu's
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            argument  that he  should not  be deported  because he  had a

            valid, approved visa  petition is not relevant to that issue.

            Other arguments that Dawodu raises now were  not presented to

            the Board and thus are deemed waived.  See Thomas v. INS, 976
___ ______    ___

            F.2d 786, 789 (1st  Cir. 1992).  Finally, the  plain language

            of  8  U.S.C.      1252b(c)(3)(A)  forecloses  rescission  of

            deportation  orders if a motion to reopen is not timely filed

            under  the  statute.    Therefore,  to  the  extent  that the

            immigration judge may have believed that he had discretion to

            consider Dawodu's motion despite the statutory bar, he erred.





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                      The petition for review is denied.
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