Olivas

MEMORANDUM **

Cecil Peters Olivas, a native and citizen of Belize, petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his motion to rescind an in absentia deportation order and to reopen deportation proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a)(l) and deny the petition.

I

Olivas contends that the BIA erred as a matter of law in finding that he failed to appear because he appeared while the court was still in session, albeit late. We disagree. Olivas was at least several hours late, cf. Jerezano v. INS, 169 F.3d 613, 615 (9th Cir.1999) (finding abuse of discretion where arrival 15-20 minutes late treated as nonappearance); see Sharma v. INS, 89 F.3d 545, 548 (9th Cir.1996) (upholding in absentia ruling when petitioners arrived 45 minutes to an hour late), and the Immigration Judge (IJ) had already ruled on his case.

II

Olivas maintains that his due process rights were violated when the BIA, without considering his affidavit, and without a record of the colloquy between the IJ and him, noted that there was no evidence that Olivas appeared in court. As the issue of whether the IJ should have recorded the colloquy was not…