June Abigail Tomas, Petitioner, v. Immigration and Naturalization Service, Respondent, 988 F.2d 122 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 988 F.2d 122 (9th Cir. 1993) Argued and Submitted March 3, 1993. Decided March 12, 1993

Petition to Review an Order of the Board of Immigration Appeals, INS No. A23-717-597.



Before JAMES R. BROWNING, HUG and KOZINSKI, Circuit Judges.


At a hearing before the Immigration Judge ("IJ"), Tomas admitted deportability, but requested additional time to seek asylum. The IJ directed Tomas' attorney to file the application for asylum by February 1, 1988. The attorney mailed the application and it did not arrive until February 4, 1988. On February 2, 1988, the IJ ordered Tomas deported. The appeal filed with the Board of Immigration Appeals ("BIA") was dismissed, the BIA noting that no copy of the application for asylum was filed with the brief and that no copy was in the record. The BIA properly dismissed the appeal.

Tomas' present attorney contends that the failure to file the application by February 1, 1988 and properly to raise the issue on appeal to the BIA was due to the ineffective assistance of former counsel. However, Tomas has not sought to raise that issue by filing a petition to reopen the hearing. Nor has Tomas included in the record before us a proposed application for asylum or any evidence that would justify asylum.

Petitioner relies on Roque-Carranza v. Immigration and Naturalization Service, 778 F.2d 1373 (9th Cir. 1985), where we granted a stay pending the filing of a motion to reopen. Petitioner seeks such relief in this case. In Roque-Carranza, new evidence, which could justify asylum, was presented to this court. In this case no such evidence is before us. Furthermore, petitioner has had more than adequate time to file a motion to reopen and to seek administrative stays pending determination of such a motion. The stay requested from the court is not justified. The decision of the BIA is affirmed.



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