Algirdas Kuprys, Petitioner, v. Immigration and Naturalization Service, Respondent, 59 F.3d 178 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

The parties have agreed that this case may be submitted for decision on the briefs. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.2. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

This matter is before the court on Petitioner's motion for leave to proceed on appeal without prepayment of costs or fees. In order to succeed on his motion, Petitioner must show both a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal. See 28 U.S.C.1915(a); Coppedge v. United States, 369 U.S. 438 (1962); Ragan v. Cox, 305 F.2d 58 (10th Cir. 1962). We conclude that Petitioner has met these requirements, and we grant the motion for leave to proceed on appeal without prepayment of costs or fees.

Mr. Kuprys has petitioned for review from a decision of the Board of Immigration Appeals to deport him to Lithuania because he has been convicted of an aggravated felony. Mr. Kuprys alleges two errors of law. First, he maintains that his status as an aggravated felon should not bar him from receiving withholding of deportation under 8 U.S.C. 1253(h) (2) (B). This argument has recently been conclusively foreclosed by this court in Al-Salehi v. INS, 47 F.3d 390, 393-96 (10th Cir. 1995).

Mr. Kuprys also alleges certain technical procedural irregularities surrounding his deportation hearing. Mr. Kuprys had previously been granted asylum, which was necessarily revoked as part of the deportation order. Mr. Kuprys complains that his asylum should be revoked by an Asylum Officer, not by an immigration judge, and seeks a remand for further proceedings. He does not, however, argue that he is still eligible for asylum. When an alien challenges a deportation order on a procedural basis, he must demonstrate substantial prejudice arising from the alleged procedural defect "which would cast doubt on the fundamental fairness of the proceeding." Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990). Mr. Kuprys has failed to meet this standard as he has offered no legitimate reason why his deportation order should be invalidated.

AFFIRMED. The mandate shall issue forthwith.