Unpublished Disposition, 874 F.2d 816 (9th Cir. 1985)

No. 87-7342.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and KOZINSKI, Circuit Judges, and C.A. MUECKE,^**  District Judge.

MEMORANDUM^*** 

Hakeem K. Onalaja appeals pro se from the Board of Immigration Appeals' final order of deportation and its denial of his motion to reopen.

Onalaja, a native and citizen of Nigeria, entered the United States as a nonimmigrant student on May 31, 1981; his status was adjusted to that of a lawful permanent resident based on his marriage to a United States citizen on December 13, 1983. On September 25, 1985, the Immigration and Naturalization Service charged Onalaja with deportability for having been convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. See 8 U.S.C. § 1251(a) (4) (1982). Records introduced at the subsequent deportation hearing showed that Onalaja had been convicted of grand theft, Cal.Penal Code Sec. 487(1) (West 1988), credit card fraud, Cal.Penal Code Sec. 484f(2) (West 1988), and perjury, Cal.Penal Code Sec. 118 (West 1988). The immigration judge found Onalaja deportable under 8 U.S.C. § 1251(a) (4); he also denied Onalaja's requests for asylum and withholding of deportation because he found the evidence insufficient to establish either a well-founded fear of persecution, see 8 U.S.C. §§ 1158(a) & 1101(a) (42) (A) (1982), or a clear probability of persecution, see 8 U.S.C. § 1253(h) (1982). On appeal, the BIA affirmed, and later denied Onalaja's motion to reopen the deportation proceedings.

Onalaja challenges the proceedings below on several grounds. First, Onalaja claims he was denied a fair deportation hearing because he was not provided with free legal assistance and the attorney who did represent him at the hearing was inadequate. But an alien is not entitled to free legal assistance. Although he may be represented by counsel at a deportation hearing, such representation must be "at no expense to the Government." 8 U.S.C. § 1252(b) (2) (1982); 8 C.F.R. Sec. 242.16(a) (1988).

Onalaja's ineffective assistance of counsel claim also lacks merit. In order to prevail on such a claim, Onalaja must show "not merely ineffective assistance of counsel, but assistance which is so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." Magallanes-Damian v. INS, 783 F.2d 931, 933 (9th Cir. 1986); Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985). Onalaja has not specified what errors, if any, were committed by his attorney; nor does our review of the record reveal that the attorney's performance was so ineffective as to deprive Onalaja of a fair trial.

Onalaja also contends that his due process rights were violated because the INS failed to provide him with the proper forms to request adjustment of status and a waiver of excludability pursuant to 8 U.S.C. §§ 1255 & 1182(h) (1982). The record discloses that the INS did not deprive Onalaja of these forms; rather, Onalaja failed to apply for adjustment of status and waiver of excludability because his wife failed to fill out the proper forms or appear at the hearing to testify in support of his request for adjustment.

Onalaja next challenges the immigration judge's finding of deportability. First, he claims that the crimes of which he was convicted did not involve moral turpitude, as required by 8 U.S.C. § 1251(a) (4). He is mistaken. Grand theft is a crime involving moral turpitude. Silva v. Carter, 326 F.2d 315, 317 (9th Cir. 1963), cert. denied, 377 U.S. 917 (1964); In re Chen, 10 I & N Dec. 671 (BIA 1964). So is credit card fraud. In re Chouinard, 11 I & N Dec. 839 (BIA 1966); Jordan v. DeGeorge, 341 U.S. 223, 227 (1951) ("Without exception, federal and state courts have held that a crime in which fraud is an ingredient involves moral turpitude.").¹ 

Onalaja next contends that the immigration judge erred in denying his application for asylum pursuant to 8 U.S.C. § 1158(a) and denying withholding of deportation pursuant to 8 U.S.C. § 1253(h). To qualify for withholding of deportation, an alien must show a clear probability of persecution: that it is "more likely than not" that he will be persecuted if he returns to his homeland. INS v. Stevic, 467 U.S. 407, 429-30 (1984). In order to be granted asylum, an alien must first meet the definition of refugee by making a prima facie case that he has a well-founded fear of persecution.

Onalaja attempts to substantiate his fear of persecution on two grounds. First, he claims that he might be imprisoned in Nigeria because of his father's political activities. Onalaja's father was arrested in Nigeria in 1963 and died after his release. However, as Onalaja admitted at the deportation hearing, he himself was never persecuted in the twenty years he remained in Nigeria after his father's death. Second, Onalaja claims that persons convicted of crimes in the United States are subject to detention once they return to Nigeria. To support this contention, Onalaja submitted a letter from his cousin stating that he was detained overnight upon returning to Nigeria. We agree with the BIA that this evidence is inadequate to raise even a ten percent chance that Onalaja would be persecuted in Nigeria. See Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987).

In his deportation hearing and motion to reopen, Onalaja also claimed that a state trial judge had made a judicial recommendation against deportation in connection with one of his convictions.²  However, Onalaja provides no evidence to substantiate this claim.

Finally, Onalaja argues that the BIA abused its discretion in denying his motion to reopen the deportation proceedings for consideration of evidence not available at the time of the hearing. Onalaja's motion to reopen raises only one issue we have not yet addressed: He claims that the immigration judge had previously acted as an investigator or prosecutor in his case. As no evidence supports this contention, the BIA did not abuse its discretion in denying his motion to reopen.

AFFIRMED.