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ELTAYEB v. INGHAM

January 7, 1997

AZIZ IBRAHIM ELTAYEB, Petitioner, against JAMES J. INGHAM, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, Respondent.


The opinion of the court was delivered by: SAND

 HONORABLE LEONARD B. SAND, U.S.D.J.

 Aziz Ibrahim Eltayeb petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and 8 U.S.C. § 1105a(a)(10) against James J. Ingham, the District Director of the Immigration and Naturalization Service's ("INS") Buffalo, New York District. Petitioner claims that he was deprived of his due process rights when the Immigration Judge ("IJ") ordered him deported in absentia, and that the IJ and the Bureau of Immigration Affairs ("BIA") abused their discretion when both subsequently denied his motion to reopen the hearing.

 For the reasons set forth below, the petition is denied.

 I. BACKGROUND

 Eltayeb is a citizen of Sudan. He entered the United States in 1980, and adjusted his status to that of lawful permanent resident in 1982. In 1987, Eltayeb was convicted of criminal possession of a controlled substance in violation of § 220.03 of the New York Penal Law. He was sentenced to three years' probation. Based on this conviction, the INS issued an administrative Order to Show Cause charging Eltayeb with deportability pursuant to the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1251(a)(2)(B)(i) (controlled substance violation), in September 1992. Id.

 In February 1993, Eltayeb conceded deportability, but requested leave to apply for a discretionary waiver of deportation pursuant to 8 U.S.C. § 1182(c). On April 22, 1993, he was given notice that his deportation hearing would take place on August 4, 1993. On that date, after serving Eltayeb with written notice that failure to appear would result in ineligibility for certain types of relief under the INA, the IJ adjourned Eltayeb's hearing until September 22, 1993. The Immigration Court then twice more adjourned Eltayeb's proceedings for reasons that are unclear.

 On February 16, 1994, Eltayeb was given notice that his deportation hearing would resume on April 7, 1994, at 9:00 a.m. in New York City. The notice also informed Eltayeb that failure to appear, absent exceptional circumstances, could result in an in absentia hearing, and that an order of deportation could be entered against him if the INS established by clear, unequivocal and convincing evidence that (a) he or his attorney had been given notice and (b) he was deportable. See 8 U.S.C. § 1252b.

 Neither Eltayeb nor his counsel appeared at 9:00 a.m. on April 7, 1994. In accordance with 8 U.S.C. § 1252b, the IJ proceeded with the hearing in absentia, and, based on the documents in Eltayeb's file, ordered him deported. At approximately 10:00 a.m., both Eltayeb and his counsel arrived in court. The IJ, having moved on to other matters, declined to reopen the hearing. Eltayeb claimed he had experienced car trouble en route which had required his car to be towed and repaired. However, he failed to provide any evidence to substantiate this claim. Eltayeb's counsel claimed he did not appear without his client because the same IJ had refused to hear him in a previous, similar situation.

 Eltayeb filed a timely motion to reopen the IJ's in absentia deportation order on April 19, 1994. The IJ subsequently denied the motion to reopen because Eltayeb had neither presented new evidence to substantiate his failure to appear, nor did his application for relief include any attachments or evidence to support a favorable exercise of discretion by the court. IJ's Written Decision at 2.

 Eltayeb then appealed the IJ's decision to the BIA. The BIA dismissed the appeal, affirming the IJ's finding that Eltayeb had not met the burden of showing exceptional circumstances regarding his failure to attend the hearing. BIA's Written Decision at 2. Eltayeb failed to file a petition for review with the United States Court of Appeals for the Second Circuit within 60 days, as provided in 8 U.S.C. § 1252b(c)(4). Instead, he filed this petition for a writ of habeas corpus in the United States District Court for the Northern District of New York on December 19, 1995, one week before the 60 day period had lapsed. *fn1" At that time, he was in INS custody in Albany, New York. The INS has since released Eltayeb and stayed his deportation awaiting disposition of this petition.

 II. DISCUSSION

 A. Jurisdiction

 1. Subject matter ...


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