Unpublished Disposition, 869 F.2d 1496 (9th Cir. 1987)

MEMORANDUM^** 

Enrique Tadeo Areas-Duarte (Areas-Duarte) petitions for review of the dismissal by the Board of Immigration Appeals (BIA) of his appeal from the immigration judge's (IJ) order of deportation. He contends that he was denied due process because the deportation proceeding was held in his absence. We dismiss the petition for review.

Enrique Tadeo Areas-Duarte (Areas-Duarte) is a native of Nicaragua. In January 1960, he was admitted to the United States as a permanent resident. On December 28, 1983, Areas-Duarte was convicted in the Superior Court of California for possession of cocaine.

On September 14, 1984, the INS ordered Areas-Duarte to show cause why he was not deportable under 8 U.S.C. § 1251(a) (11) which authorizes deportation of aliens convicted of narcotics offenses. At the deportation hearing on October 17, 1984, Areas-Duarte appeared with counsel Walter Pineda and admitted the allegations in the order to show cause. He requested a continuance in order to submit an application for a waiver of deportability. The IJ granted him until December 3, 1984, to submit an application for waiver of deportability under Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). The IJ scheduled a hearing on the application for January 23, 1986. The hearing was later rescheduled for April 30, 1986.

On December 4, 1984, Areas-Duarte filed a bare application for 212(c) relief unsupported by affidavits or other documentary evidence. At the hearing on April 30, 1986, Areas-Duarte indicated that he wanted a new attorney, and the government indicated that they did not have the case file, so the IJ continued the hearing until March 20, 1987. The IJ gave Areas-Duarte specific oral and written instructions on the kinds of documents he should submit by January 1, 1987, to support his application for 212(c) relief. On the written notice which the IJ gave him of the March 20, 1987 hearing, the IJ listed the documents necessary to support the application.

On March 20, 1987, Pineda appeared at the deportation hearing without Areas-Duarte. Pineda told the IJ that he had made numerous unsuccessful attempts to contact his client, and that he was appearing to see whether Areas-Duarte wanted him to continue as counsel. Pineda also said that he had been informed Areas-Duarte was currently incarcerated for assault with a deadly weapon, and that was the reason for Areas-Duarte's absence.¹  Pineda asked the IJ to grant a continuance and allow Pineda to withdraw as Areas-Duarte's attorney of record. The government attorney stated that Areas-Duarte had escaped from jail, but he understood that Areas-Duarte had been apprehended and had a release date of August, 1987. The attorney stated that he was not sure whether Areas-Duarte was still incarcerated.

The IJ decided that because there was no definitive proof that Areas-Duarte was in jail and Areas-Duarte had not advised the court of his whereabouts, he would proceed in Areas-Duarte's absence.²  He then found that Areas-Duarte was deportable and had made no application for relief from deportation. Therefore, the IJ ordered Areas-Duarte deported.³ 

On March 30, 1987, Pineda filed a notice of appeal to the BIA on Areas-Duarte's behalf. He contended that the IJ abused his discretion in denying Pineda's request for a continuance and violated Areas-Duarte's due process rights by proceeding in Areas-Duarte's absence. The BIA dismissed the appeal on the grounds that Areas-Duarte had not established reasonable cause for his absence from the deportation hearing, had failed to notify the IJ or his attorney as to the reason for his absence, and had abandoned his application for 212(c) relief. Areas-Duarte filed a timely petition for review.

The IJ may conduct a deportation hearing in the alien's absence if the alien is given a reasonable opportunity to attend and fails to appear without reasonable cause. 8 U.S.C. § 1252(b); INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39 (1984). Here there is no question that the alien and his counsel had notice of the hearing date and place. However, this court has never considered whether incarceration constitutes reasonable cause for absence, Under the facts of this case, it is not necessary that we do so.

Assuming arguendo that incarceration is reasonable cause for failure to appear at his hearing, to succeed on the due process challenge Areas-Duarte must show he was prejudiced by the IJ proceeding in his absence. United States v. Nicholas-Armenta, 763 F.2d 1089, 1091 (9th Cir. 1985) (In order to make a successful due process challenge to a mass deportation hearing a deportee must allege actual prejudice). Where the due process claim is based on the fact that the deportation proceeding was held in petitioner's absence, the alien must establish that the outcome would have been different had he been present at the hearing.

Areas-Duarte has not met his burden of proving that the outcome would have been different had he been present. The record reflects that the IJ gave Areas-Duarte both oral and written notice that he would have to submit a variety of documents to support his 212(c) application. Nothing in the record indicates that Areas-Duarte submitted any documents in support of his application, either to the IJ or to the BIA, or that he was prevented from doing so because of his incarceration. Accordingly, he has not met his burden of showing that the outcome of his deportation proceeding would have been different had he been present.

PETITION DISMISSED.