June Abigail Tomas v. Immigration and Naturalization Service

Publisher	United States Court of Appeals for the Ninth Circuit
Publication Date	12 March 1993
Type of Decision	91-70552
Cite as	June Abigail Tomas v. Immigration and Naturalization Service, United States Court of Appeals for the Ninth Circuit, 12 March 1993, available at: https://www.refworld.org/cases,USA_CA_9,3ae6b66918.html [accessed 27 May 2023]
Comments	Argued and submitted: 3 March, 1993; Filed: 12 March, 1993
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

JUNE ABIGAIL TOMAS, Petitioner, v. IMMIGRATION AND
NATURALIZATION SERVICE, Respondent.
No. 91-70552 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
March 3, 1993, Argued, Submitted, Pasadena, California
March 12, 1993, Filed

Subsequent History: Reported as Table Case at 988 F.2d 122.

Prior History:

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

Disposition:

AFFIRMED.

Judges:

Before: BROWNING, HUG, and KOZINSKI, Circuit Judges.

Opinion:

MEMORANDUM

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.