Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1024 (9th Cir. 1989)


No. 88-7022.

United States Court of Appeals, Ninth Circuit.

Submitted May 23, 1989.Decided Aug. 15, 1989.

Before BARNES, SKOPIL and WALLACE, Circuit Judges.


Alexander Orden Olivar (Olivar) petitions for review of the BIA's dismissal of his appeal from the immigration judge's order granting him thirty days' voluntary departure. Olivar contends that the BIA erred in holding that he did not timely file his asylum application with the immigration court. He further contends that his due process rights were violated because he was not given an opportunity to explain why he erroneously mailed his asylum application to the Immigration and Naturalization Service. We deny the petition for review.

Asylum requests made after deportation or exclusion proceedings have commenced must be filed in quadruplicate with the docket clerk of the immigration court. 8 C.F.R. Sec. 208.3(b). Here, Olivar concedes that he did not file his asylum application with the immigration court, but instead with the Immigration and Naturalization Service. Accordingly, we find that Olivar's asylum application was not timely filed with the immigration court.

We find no merit to Olivar's contention that his due process rights were violated. The record reflects that the IJ warned Olivar that if he did not properly file his asylum application, he would receive thirty days' voluntary departure without further proceedings or further notice. Moreover, Olivar has not met his burden of showing that the immigration court's failure to consider his asylum application prejudiced him. See United States v. Nicholas-Armenta, 763 F.2d 1089, 1091 (9th Cir. 1985) (due process challenges require a showing of prejudice). Accordingly, the petition for review is denied.



The panel unanimously finds this case suitable for disposition without oral arugment. Fed. R. App. P. 34(a); 9th Cir. Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir. Rule 36-3