Unpublished Disposition, 907 F.2d 155 (9th Cir. 1984)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1984)

No. 89-70141.

United States Court of Appeals, Ninth Circuit.

Before HUG and TROTT, Circuit Judges, and EDWARD C. REED, Jr., District Judge.** 

MEMORANDUM*** 

The Board of Immigration Appeals (BIA) affirmed an immigration judge's finding that appellant Johnson Ezenagu Nwobu is deportable under 8 U.S.C. § 1251(a) (4) (1988). We have jurisdiction under 8 U.S.C. § 1105a(a) (1988), and we affirm.

* Standard of Review

We review the BIA's interpretations of law de novo and its factual findings under the "substantial evidence" standard. Rivas v. INS, 899 F.2d 864, 866 (9th Cir. 1990).

II

Facts and Procedural History

In February 1988, appellant, a Nigerian national, was convicted of grand theft in California and received a sentence of one year in prison, three years' probation, and a fine of $4,000. He had been previously convicted in 1987 for issuing checks without sufficient funds. Although appellant claims to have arrived in this country on a student visa in 1980, a passport which the judge found to be appellant's reflects entry into the United States on or about November 17, 1984.

After a hearing in September 1988, an immigration judge found appellant deportable pursuant to 8 U.S.C. § 1251(a) (4).1  The BIA affirmed in February 1989.

III

Analysis

Appellant's arguments center on the validity of his underlying grand theft conviction, an alleged deprivation of rights in the deportation hearing, and his entitlement to relief based on relationships with United States citizens.

Appellant claims he was denied an opportunity to change counsel, influenced to his detriment by the judge's comments on the likelihood of conviction should the case go to trial, and coerced into entering a no contest plea. Such claims are foreclosed in deportation proceedings, for " [t]he INS may not examine the validity of a conviction for deportation purposes." Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir. 1985); see also Ocon-Perez v. INS, 550 F.2d 1153, 1154 (9th Cir. 1977).

Appellant's suggestion that writing checks with insufficient funds is not a "crime involving moral turpitude" within the meaning of 8 U.S.C. § 1251(a) (4) is irrelevant in light of his other conviction for grand theft, a crime involving moral turpitude. United States v. Villa-Fabela, 882 F.2d 434, 440 (9th Cir. 1989); Silva v. Carter, 326 F.2d 315, 317 (9th Cir. 1963), cert. denied, 377 U.S. 917 (1964).2 

Appellant next claims that he was denied procedural due process and effective assistance of counsel when the immigration judge refused a continuance in order for appellant to get counsel. He also claims the judge deprived him of his right to question the government attorney who "testified and tendered evidence" against him.

Although an alien in a deportation proceeding is not entitled to counsel at government expense, he or she is granted "the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as [the alien] shall choose." 8 U.S.C. § 1362 (1988). The immigration judge advised appellant three times about his right to have counsel represent him in the proceedings. Appellant also received a list of attorneys who represent indigent clients. The judge granted two continuances in order for appellant to obtain counsel. When appellant appeared a third time without counsel, the judge properly determined that appellant had had ample time to secure representation.

This court has held that, where an alien failed to obtain counsel after four months and two continuances, the immigration judge "had no option but to proceed to the hearing of evidence on the merits of the case." Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir. 1986). In similar fashion, we conclude that appellant's rights were not violated by the judge's failure to grant another continuance.

In addition, although appellant made reference to an attorney in Las Vegas, appellant admitted that the lawyer had not actually begun to represent him, and that he could not afford to pay for her to come to California. In light of appellant's failure over four months to make any attempt to have the case transferred, the judge did not violate appellant's rights by denying a continuance for this purpose.

We also find that appellant was not prejudiced by his lack of counsel, as "counsel could not have presented his case for relief from deportation more advantageously or marshalled specific relevant facts in support of the petitioner's case." Villa-Fabela, 882 F.2d at 440.

Finally, the transcript reveals that appellant was given an opportunity to pose questions to the government attorney and made use of that opportunity. He has not demonstrated any prejudice resulting from the judge's role in relaying those questions to the government attorney.

Appellant cannot obtain a change of immigration status based on his claimed marriage, because the woman he claims is his wife did not file the requisite petition. See 8 U.S.C. § 1154(a) (1988).3  Appellant did not present any proof of his mother's alleged United States citizenship to the immigration judge. Moreover, he admitted Nigerian citizenship, had a Nigerian passport, and failed to mention his alleged claim to United States citizenship when he applied for a visa at the American consulate in Nigeria. Under these circumstances, the court properly found that appellant was not entitled to relief based on this claim. In addition, because he has not "been physically present in the United States for a continuous period of not less than ten years immediately following the commission of [the] act ... constituting a ground for deportation," he is not entitled to either suspension of deportation or voluntary departure under 8 U.S.C. § 1254(a) (2); (e) (1988).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

The Honorable Edward C. Reed, Jr., Chief Judge, United States District Judge, District of Nevada, sitting by designation

 ***

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

 1

8 U.S.C. § 1251(a) (4) provides, in pertinent part, that:

Any alien in the United States ... shall, upon the order of the Attorney General, be deported who ... (4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more....

 2

Appellant appears not to pursue the argument, raised before the immigration judge and the BIA, that the grand theft conviction is not final. In light of appellant's admission that neither a direct appeal nor a petition for writ of habeas corpus was filed, such an argument would clearly be foreclosed

 3

The BIA did not address appellant's third contention that he is the "son, husband and father of United States citizens."