Jose Leandro Lainez-Ortiz v. Immigration and Naturalization Service

96 F.3d 393 65 USLW 2209 , 96 Cal. Daily Op. Serv. 6895 , 96 Daily Journal D.A.R. 11 ,334 Jose Leandro LAINEZ-ORTIZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 94-70214. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 20, 1995. Decided Sept. 16, 1996. J. Matthew Geyman and Matthew R. Harris, Heller, Ehrman, White & McAuliffe, Seattle, Washington, for petitioner. David V. Bernal and Hugh Mullane, Attorneys, Immigration and Naturalization Service, Department of Justice, Washington, DC, for respondent. 1 Petition to Review a Decision of the Bureau of Immigration Appeals. INS No. Ajv-lzq-mqu. 2 Before: REINHARDT and TROTT, Circuit Judges, and SCHWARZER, * Senior District Judge. SCHWARZER, Senior District Judge: 3 Jose Leandro Lainez-Ortiz petitions for review of the decision of the Board of Immigration Appeals ("BIA"). The BIA dismissed Lainez-Ortiz's appeal of the Immigration Judge's ruling finding him deportable and denied his motion to reopen to file an initial application for asylum. Lainez-Ortiz challenges the BIA's decision on the ground that the denial of his motion to reopen his deportation proceeding to apply for…

Jose Leandro Lainez-Ortiz petitions for review of the decision of the Board of Immigration Appeals (“BIA”). The BIA dismissed Lainez-Ortiz’s appeal of the Immigration Judge’s ruling finding him deportable and denied his motion to reopen to file an initial application for asylum. Lainez-Ortiz challenges the BIA’s decision on the ground that the denial of his motion to reopen his deportation proceeding to apply for political asylum was an abuse of discretion. We have jurisdiction under 8 U.S.C. § 1105a and deny the petition for review.

BACKGROUND

Petitioner is a 32-year-old citizen of Honduras. He claims that he fled Honduras in fear for his life on July 25, 1990. On September 6, 1990, he entered the United States without inspection. The Immigration and Naturalization Service immediately issued an Order to Show Cause why he should not be deported under Section 241(a)(2) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1251 (a)(2). He appeared before the Immigration Judge (“IJ”) on September 12, 1990, and requested time to consult with an attorney. Three weeks later, at his next deportation hearing, he still had not consulted with an attorney. During this second…

dissenting:

I respectfully dissent.

The issue here is whether a petitioner who has not previously filed for asylum and who moves to reopen deportation proceedings in order to file an asylum application must simply provide a reasonable explanation for his failure to do so earlier, or whether he must also provide previously unavailable, material evidence to support his asylum claim. While the BIA and the majority believe that a petitioner must do both, I would find, on the basis of the language of the applicable provisions, our prior case law, and the rationale underlying the requirement of previously unavailable evidence, that a petitioner seeking to reopen deportation proceedings in order to apply for asylum need only meet the first requirement.

Section 208 establishes procedures to be applied in asylum cases. 8 C.F.R. § 208.4 (1992) applies when a petitioner moves to reopen in order to file an initial asylum application after the conclusion of his deportation proceedings. 2 It provides, in relevant part, that

*398 8 C.F.R. § 208.4 (c)(3). It provides further that a motion to reopen accompanied by an initial application for asylum “must reasonably explain the failure to…