Nwolise v. INS ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EMMANUEL O. NWOLISE,
Petitioner,
v.
No. 95-2519
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
EMMANUEL O. NWOLISE,
Petitioner,
v.
No. 95-2774
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petitions for Review of Orders
of the Immigration and Naturalization Service.
(A23-265-046)
Submitted: December 12, 1995
Decided: January 16, 1996
Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
No. 95-2519 affirmed and No. 95-2774 dismissed by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
Emmanuel O. Nwolise, Petitioner Pro Se. Richard Michael Evans,
Robert Leigh Bombaugh, Anthony Wray Norwood, Michelle Arlene
Gluck, UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated appeals, Emmanuel Obiora Nwolise appeals
from the Board of Immigration Appeals' ("the Board") dismissal of:
(1) Nwolise's appeal of the Immigration Judge's ("IJ") order denying
Nwolise's application for a waiver of deportation (Appeal No. 95-
2519); and (2) Nwolise's appeal of the IJ's order denying his request
for bond (Appeal No. 95-2774). In No. 95-2519, we affirm the
Board's decision affirming the IJ's order finding Nwolise deportable
and ineligible for waiver a waiver of deportation. In No. 95-2774, we
dismiss Nwolise's appeal from the Board's decision affirming the IJ's
order denying his request for bond. We further deny Nwolise's
motion for reconsideration of this court's order denying his motion
for a stay of deportation in Appeal No. 95-2519, and his motion for
a stay of deportation in Appeal No. 95-2774.
Nwolise, a Nigerian citizen, is an alien who entered the United
States as a student in 1978. In 1981, his status was adjusted to that
of a lawful permanent resident. In 1985, he was convicted of one
count of conspiracy to distribute and possess with the intent to distrib-
ute heroin, and one count of aiding and abetting possession with the
intent to distribute heroin. He was sentenced to fifteen years impris-
onment on each count, the sentences to run concurrently. He was
released from prison in 1995.
2
As a result of this conviction, the Immigration and Naturalization
Service ("INS") initiated deportation proceedings. Nwolise petitions
this court for review of the Board's decisions affirming the IJ's order
finding him deportable and ineligible for relief from deportation and
the IJ's order denying his request for bond. The INS has filed a
motion to dismiss the latter appeal for lack of jurisdiction. Addition-
ally, Nwolise moves this court to reconsider its previous denial of his
motion to stay deportation proceedings pending review of the peti-
tions.
On appeal, Nwolise contends that the IJ's failure to grant him fur-
ther time to obtain counsel denied him a fair hearing. While Nwolise
clearly had a right to counsel of his choice at no expense to the gov-
ernment, see Delgado-Corea v. INS, 804 F.2d 261, 262 (4th Cir.
1986), the Board properly determined that this right was not denied
in this case.
The IJ granted Nwolise two continuances in March and April 1995
and at both times informed Nwolise that if he did not secure counsel
he would be required to represent himself. In May, Nwolise appeared
pro se, and the IJ proceeded with the hearing.
Based on Nwolise's admission to all the charges in the Order to
Show Cause ("OSC") and the IJ's review of the record of Nwolise's
conviction, the IJ found Nwolise deportable and designated that he be
deported to Nigeria. The IJ also noted that Nwolise was not eligible
for a waiver of deportation under section 212(c) of the Immigration
and Naturalization Act ("the Act"), 8 U.S.C.A.§ 1182 (West 1970 &
Supp. 1995).
The decision whether to grant a continuance to obtain counsel rests
within the discretion of the IJ, and his decision is reviewed under an
abuse of discretion standard. See Howard v. INS , 930 F.2d 432 (5th
Cir. 1991). The sequence of events described above clearly illustrates
that the IJ did not abuse his discretion by refusing to continue the
hearing further to permit Nwolise to obtain counsel.
Moreover, even if Nwolise had been improperly denied counsel,
the error would be harmless because he cannot show that the absence
of counsel prejudiced the outcome of his hearing. See Farrokhi v.
3
INS, 900 F.2d 697, 702 (4th Cir. 1990). Nwolise has not demonstrated
how counsel could have affected the IJ's determination that he is inel-
igible for a § 212(c) waiver of deportation. Because Nwolise was con-
victed of an aggravated felony* and incarcerated for ten years for this
criminal offense, he is statutorily barred from§ 212(c) relief.
Furthermore, the Board correctly found that Nwolise is mistaken in
his belief that he was granted § 212(c) relief in 1989. In 1989, an INS
"Oakdale detainer" was removed because Nwolise was not then eligi-
ble to be detained at the INS facility in Oakdale, Louisiana. Pursuant
to INS procedures, aliens who were still eligible for § 212(c) relief
were not detained in Oakdale. Because Nwolise had not yet served
more than five years on his 1985 drug convictions, he was eligible for
§ 212(c) relief. However, when his deportation proceedings were ini-
tiated in 1995 with the filing of the OSC, he was no longer eligible
for § 212(c) relief. Nwolise is statutorily ineligible for any form of
waiver relief, and he was not prejudiced by the IJ's refusal of a further
continuance.
Further, this court does not have jurisdiction to review the Board's
decision to affirm the IJ's order denying Nwolise's request for bond.
This court's jurisdiction to entertain direct appeals from the Board is
confined to "final orders of deportation" made pursuant to administra-
tive proceedings under § 1252(b). 8 U.S.C.A.§ 1105a(a) (§ 106(a) of
the Act) (West 1970 & Supp. 1995); see Cheng Fan Kwok v. INS, 392
U.S. 206, 216 (1968). Bond determination proceedings are conducted
pursuant to § 242(a) of the Act, 8 U.S.C.A.§ 1252(a) (West Supp.
1995), and are separate from final deportation orders. Young v. INS,
759 F.2d 450, 457 (5th Cir.), cert. denied, 474 U.S. 996 (1985);
Castaneda ex rel. Gonzalez v. INS, 740 F.2d 9, 10 (8th Cir. 1984). A
_________________________________________________________________
*A person who commits a drug trafficking crime as defined in 18
U.S.C.A. § 924(c) (West Supp. 1995) is an aggravated felon. 8 U.S.C.A.
§ 1101(a)(43) (West Supp. 1995). Under § 924(c)(2), a drug trafficking
crime is any crime punishable as a felony under the Controlled Sub-
stances Act, 21 U.S.C.A. §§ 801-904 (West 1981 & Supp. 1995). Nwo-
lise's conviction for the conspiracy and possession with intent to
distribute heroin is punishable under the Controlled Substances Act. See
21 U.S.C.A. § 841 (West Supp. 1995). Thus, he is an aggravated felon
for purposes of § 1101(a)(43).
4
bond determination is not a final order of deportation made during an
administrative proceeding pursuant to § 1252(b). Gornicka v. INS,
681 F.2d 501, 505 (7th Cir. 1982). Accordingly, this court does not
have jurisdiction to review Nwolise's bond determination. See Young,
759 F.2d at 457; Castaneda, 740 F.2d at 10.
We, therefore, affirm the Board's decision affirming the IJ's order
finding Nwolise deportable and ineligible for waiver relief in Appeal
No. 95-2519. In addition, we grant the INS's motion to dismiss Nwo-
lise's appeal from the Board's decision affirming the IJ's order deny-
ing bond in Appeal No. 95-2774. Because Nwolise's petitions for
review are meritless, we deny his motion for reconsideration of this
court's order denying his motion for a stay of deportation in Appeal
No. 95-2519, and his motion for a stay of deportation in Appeal No.
95-2774. 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.
No. 95-2519 - AFFIRMED
No. 95-2774 - DISMISSED
5