Maurice Biang, Petitioner, v. Immigration & Naturalization Service, Respondent, 24 F.3d 244 (9th Cir. 1994)

Before: HUG, WIGGINS, and NOONAN, Circuit Judges

MEMORANDUM^** 

Maurice Biang appeals the denial of his application for voluntary departure by the Board of Immigration Appeals. We affirm the Board.

Biang entered this country on December 19, 1989 from Cameroon on a student visa. He failed to abide by the terms of the visa and was subject to deportation. On appeal he does not contest his deportability but challenges the exercise of discretion by the Immigration Judge, affirmed by the Board, denying him voluntary departure. The Board had evidence that Biang had entered two fraudulent marriages to United States citizens in order to prevent his being deported. That was sufficient basis for the decision not to grant him voluntary departure.

On this appeal Biang notes that the trial before the Immigration Judge had proceeded on an expedited basis; that Biang was being held in detention at El Centro; and that only two days prior to the trial Biang's lawyer received notice that the government would call as a witness Beverly Tomlinson, a senior INS investigator, who had investigated the circumstances of Biang's second marriage. Biang argues that he was prejudiced by this short notice and that therefore the proceeding was unfair.

Undoubtedly, the notice was short. But Biang fails to point to evidence that he could have produced if he had had more time. One witness that he had called left without testifying before the hearing was over. Biang has failed to establish prejudice as required by Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988).

AFFIRMED.