Unpublished Disposition, 914 F.2d 1496 (9th Cir. 1990)

MEMORANDUM^* 

Mr. Jayme appeals the order of the Board of Immigration Appeals dismissing his appeal from the immigration judge's decision in a deportation proceeding. The immigration judge ordered him deported after denying his requests for waiver of deportation, voluntary departure, and a continuance of his deportation proceeding. The BIA found no abuse of discretion in the denial of Jayme's requests and dismissed the appeal.

Jayme, a citizen of the Philippines, entered the United States as an immediate relative based on his marriage to a United States citizen. In his visa application, he fraudulently claimed that he had never been married and had no children. In fact, he was married to a Philippine citizen and had four children. At the deportation hearing he disclosed that he had obtained a divorce from his first two wives only two weeks prior, and married another permanent resident two days before the hearing.

Waiver of Deportation

Jayme seeks relief from deportation under Sec. 241(f) of the Immigration and Naturalization Act, 8 U.S.C. § 1251, on the basis of his two-day-old marriage to a lawful, permanent resident of the United States. Section 1251(f) (1) provides discretionary waiver of a deportation order, which is based on fraudulent entry into the United States, if the alien is the spouse of a lawful permanent resident. A denial of a waiver of deportation is reviewed by this court for abuse of discretion. Hernandez-Robledo v. INS, 777 F.2d 536, 540 (9th Cir. 1985).

The BIA accepted the immigration judge's finding that a marriage contracted after an order to show cause and two days before a deportation hearing was insufficient to counter Jayme's original immigration fraud. This circuit has held that visa fraud is a discretionary consideration under Sec. 1251. Id. at 541. Given the duration of the marriage and the visa application fraud, the BIA did not abuse its discretion in denying the waiver of deportation.

Voluntary Departure

Jayme argues that the BIA improperly denied his voluntary departure request.¹  To be eligible for voluntary departure the alien must demonstrate "good moral character" for the five years preceding the request and the means to pay for his departure. 8 U.S.C. § 1254(e). A denial of a request for voluntary departure is reviewed for an abuse of discretion. Bachelier v. INS, 625 F.2d 902, 905 (9th Cir. 1981).

The BIA held that the immigration judge did not abuse his discretion by denying voluntary departure. Jayme had the burden of proving good moral character, but offered no evidence. This circuit has found no abuse of discretion in denying voluntary departure when no affirmative evidence was presented. Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979); Trias-Hernandez v. INS, 528 F.2d 366, 370 (9th Cir. 1975). Jayme presented no evidence of his good moral character and the BIA did not abuse its discretion in denying voluntary departure.

Denial of Continuance

Jayme argues that the BIA improperly affirmed the judge's denial of his motion for a continuance of the deportation proceeding. He urges that he needed a continuance to bring his second and third wives to testify. An immigration judge "may grant a motion for continuance for good cause shown." 8 C.F.R. Sec. 3.27 (1988). The decision is within the discretion of the judge. Ungar v. Sarafite, 376 U.S. 575, 589 (1963) (citing Torres v. United States, 270 F.2d 252 (9th Cir. 1959)).

The judge denied the continuance, ruling that no new evidence could change the fact that his marriage was only two days old and that he lied on his visa application. Jayme had received a notice of the proceeding more than three weeks before the proceeding date. It instructed him to arrange for witnesses testifying on his behalf to be present at the hearing.

Jayme did not show good cause for a continuance and the judge did not abuse his discretion by denying it.

Attorney Fees

Jayme's request for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), is denied because he is not a prevailing party.

AFFIRMED.