Unpublished Disposition, 934 F.2d 324 (9th Cir. 1987)

MEMORANDUM^** 

George Peter Laurence Rooke ("Rooke") appeals a final decision of deportation by the Board of Immigration Appeals ("BIA"). Rooke argues that he was denied his due process rights at his hearing before the Immigration Judge ("IJ"). He also claims that the IJ improperly denied his request for a waiver of inadmissibility to the United States.

We affirm.

BACKGROUND

George Peter Laurence Rooke is a native and citizen of England who has lived in the United States as a permanent legal resident since 1960, when he was twelve years old. On October 3, 1977, Rooke was convicted of four counts of lewd and lascivious acts with sixteen children. On September 21, 1983, Rooke was convicted of oral copulation with a child under the age of fourteen.

Based on those convictions, Rooke was charged with deportability on September 28, 1987 pursuant to 8 U.S.C. § 1251(a) (4), which states that the Attorney General shall deport aliens who are convicted of two crimes involving moral turpitude. Rooke appeared before the IJ on October 22, 1987 and indicated he wished to apply for a waiver of inadmissibility under Sec. 212(c) of the Immigration and Nationality Act of 1952. 8 U.S.C. § 1252(c).

At that initial appearance, the IJ strongly recommended that Rooke should seek the services of an attorney if he wished to contest deportability and file a section 212(c) application. Rooke appeared without counsel on November 12 and filed a timely section 212(c) application. He stated that he was unable to obtain counsel and requested a hearing as soon as possible.

Rooke's hearing was held on November 18, 1987, and the IJ began by handling Rooke a list of free legal services in the area, which he had given Rooke before. The IJ then asked Rooke whether he had requested a hearing as soon as possible, whether he had sufficient opportunity to obtain counsel, and whether he intended to proceed without counsel. Rooke answered yes.

The IJ then explained Rooke's right to counsel one more time and explained the purpose of the hearing and what would be determined in it. He again reminded Rooke that he should obtain counsel and that he could get a continuance to do so. The IJ then asked one last time if Rooke intended to proceed without counsel, and Rooke answered yes.

Rooke admitted he had committed the crimes charged as the basis of deportability. He then tried but failed to prove that he was a citizen of the United States. The IJ therefore found that Rooke was deportable. The IJ then considered Rooke's section 212(c) application to waive inadmissibility to the United States and denied it.

Rooke appealed to the BIA, again representing himself. The BIA affirmed, and Rooke now appeals that final decision of deportation.

DISCUSSION

Rooke argues that he was effectively denied his right to counsel under 8 U.S.C. § 1252(b) (2), and that violated his due process rights. Rios-Berrios v. I.N.S., 776 F.2d 859, 863 (9th Cir. 1985). However, it is very clear that the IJ did all that could be expected in encouraging Rooke to obtain counsel and giving him an opportunity to do so. No more is required by the regulations or the Constitution. See Vides-Vides v. I.N.S., 783 F.2d 1463, 1469-70 (9th Cir. 1986).

To the extent that Rooke now intends to suggest that there might be new or different evidence to support his position, this is neither the time nor the place to moot that issue.¹  If there is no other evidence to submit, he can ask the BIA "to reopen deportation proceedings, citing the absence of counsel as the reason this evidence was not available for presentation at the former hearing." Vides-Vides, 783 F.2d at 1470. See also Dhangu v. I.N.S., 812 F.2d 455, 460-61 (9th Cir. 1987); Roque-Carranza v. I.N.S., 778 F.2d 1373 (9th Cir. 1985). We express no opinion on whether the BIA will or should reopen the proceedings.

B. Rooke's Section 212(c) Application.

Both the IJ and the BIA on appeal properly identified the factors to consider in determining waiver of inadmissibility for permanent residents. See In re Buscemi, Interim Decision # 3058 (BIA 1988); In re Marin, 16 I. & N.Dec. 581, 584-85 (1978). These factors are family ties, duration of residency in the United States, military service, employment history, hardship if defendant is deported, and whether defendant has been rehabilitated since commission of his crimes. Buscemi, I.D. # 3058 at 8.

The administrative record clearly reveals that the IJ and the BIA examined each of these factors and considered them in relation to each other. As stated above, the IJ and BIA found that the serious and repetitive nature of Rooke's crimes were not outweighed by other equitable factors in his favor, especially since the evidence did not support a determination that he had been rehabilitated. We find that determination was not arbitrary or capricious. Panchevre v. United States Dept. of Justice--I.N.S., 922 F.2d 1229, 1231 (5th Cir. 1991) (citation omitted). See also I.N.S. v. Rios-Pineda, 471 U.S. 444, 449, 105 S. Ct. 2098, 2101, 85 L. Ed. 2d 452 (1985); Ahwazi v. I.N.S., 751 F.2d 1120, 1122 (9th Cir. 1985).

AFFIRMED.