(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
Nos. 92-5137 &
93-4168
Summary Calendar
____________________
MICHAEL ROBERT FREDERICK WAKEFIELD,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
__________________________________________________________________
Petition for Review of an order of the
Immigration and Naturalization Service
(A14 437 375)
__________________________________________________________________
(June 28, 1993)
Before JOLLY, BARKSDALE, and E. GARZA, Circuit Judges.
PER CURIAM:*
Michael Robert Frederick Wakefield was found deportable by an
Immigration Judge (IJ). Wakefield appealed the decision of the IJ
to the Board of Immigration Appeals (the Board), which dismissed
the appeal. Over one year after the Board's decision, Wakefield
moved the Board to reopen his case and to stay his deportation.
The Board denied both motions, and Wakefield now petitions this

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1This section has been recodified as 8 U.S.C. §
1251(a)(2)(B)(ii).
-2-
court for review. We grant review and find, first, that we lack
jurisdiction to review Wakefield's claims regarding the order of
deportation of the Board; we do, however, affirm the decision of
the Board denying Wakefield's motion to reopen his case.
I
Wakefield, a forty-five year old native of England and citizen
of Great Britain, entered the United States in 1966 as a lawful
permanent resident. Wakefield was convicted in 1982 of unlawful
possession of a prohibited weapon, a short-barreled firearm. For
this offense Wakefield was initially placed on probation, but
probation was later revoked and Wakefield was ordered to serve from
two to ten years in prison and pay a fine of $1,000.00. Wakefield
was also separately convicted of possession of marijuana, and
pursuant to this conviction the INS initiated deportation
proceedings. This proceeding, however, was terminated; instead,
the INS issued a superseding Order to Show Cause charging Wakefield
with two separate deportation grounds based on both the firearm and
the marijuana possession convictions. Wakefield's deportation was
sought pursuant to section 241(a)(11) of the Act, 8 U.S.C. §
1251(a)(11), as an alien convicted of a crime relating to
controlled substances,1 and pursuant to section 241(a)(14) of the

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2This section has been recodified as 8 U.S.C. § 1251(a)(2)(C).
3Wakefield also appeals the Board's denial of a stay, which is
not a final order of deportation reviewable by this court. The INS
therefore filed a motion to dismiss this appeal for lack of
jurisdiction. This motion was carried with the case, and
Wakefield's appeal of the denial of a stay has now been
consolidated with this case. We do not address this issue,
however, because "[a] stay can be requested but its denial is not
an appealable order." Ramirez-Osorio v. INS, 745 F.2d 937, 940
(5th Cir. 1984).
-3-
Act, 8 U.S.C. § 1251(a)(14), as an alien convicted of possessing or
carrying a firearm in violation of any law.2
At his deportation proceeding Wakefield admitted that he was
deportable as charged but sought to apply for relief from
deportation pursuant to section 212(c) of the Act, 8 U.S.C. §
1182(c), as a seven-year domiciliate. The INS opposed this,
arguing that Wakefield was ineligible for relief under section
212(c) because of his firearm conviction. After concluding that
Wakefield was indeed eligible for such relief, the IJ nevertheless
found that Wakefield was undeserving of this extraordinary relief.
Wakefield appealed to the Board, which dismissed his appeal on
August 16, 1991. Wakefield did not appeal this decision.
Over one year later, on October 20, 1992, Wakefield filed a
motion for a stay of deportation and to reopen his case pursuant to
8 C.F.R. § 3.2. The Board initially denied the motion for a stay,3
and on November 25, 1992, denied Wakefield's motion to reopen his
case. Wakefield now petitions this court for review of the
decision of the Board.

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4So sure is the INS of its argument that it has not even
addressed, in the alternative, the merits of Wakefield's claims.
-4-
II
On appeal, Wakefield argues that the decision of the Board
affirming the IJ's finding of deportability denies him equal
protection of the law. Before addressing the merits of Wakefield's
claim, we must first address the jurisdictional issue presented in
this case. The INS argues that this court lacks jurisdiction to
review the decision of the Board dated August 16, 1991. The
deadline for filing a petition for review under section 106(a)(1)
of the Act is ninety days from the date of the Board's decision,
the final deportation order. 8 U.S.C. § 1105a(a)(1). Because the
final Board decision was dated August 16, 1991, the INS argues that
Wakefield was required to file his petition for review to this
court by November 14, 1991. In view of this failure, the INS
argues that this court lacks jurisdiction to consider his claims
regarding the decision of the Board.4
We most recently addressed this issue in Pierre v. INS, 932
F.2d 418 (5th Cir. 1991). In that case, we adopted the approach of
the D.C. Circuit expressed in Attoh v. INS, 606 F.2d 1273 (D.C.
Cir. 1979), stating that this approach "best merges the traditional
understanding of a 'final order' with the special concerns that
arise in the context of deportation orders." Pierre, 932 F.2d at
421. In Attoh, the D.C. Circuit partially adopted the approach of
the Ninth Circuit presented in Bregman v. INS, 351 F.2d 401, 402-03

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-5-
(9th Cir. 1965). Under Bregman, if a motion to reopen is filed
within six months (or, as amended, ninety days) of the final order
of deportation and a petition to the court of appeals is filed
within six months (or now ninety days) of the denial of the motion
to reopen, the Circuit Court has jurisdiction to review both the
denial of the motion to reopen and the final order of deportation.
In Attoh, the D.C. Circuit adopted this approach "only insofar as
it implicitly recognizes that intervening good faith petitions for
administrative relief may toll or suspend the running of the time
period." Attoh, 606 F.2d at 1276 n. 15. After Pierre, we now
follow this approach to determine if we have jurisdiction.
Applying Pierre to the facts before us, it is obvious that if
Wakefield had filed his petition for review to this court within
ninety days of the date of the Board's August 16, 1991 deportation
order, we would not be addressing this jurisdictional question.
Furthermore, if within that ninety-day time period Wakefield had,
in good faith, filed a motion to reopen his case, then the time
period for appeal to this court would have been tolled and we would
have jurisdiction to consider both the original decision of the
Board and its denial of Wakefield's motion to reopen, if a petition
for judicial review had been filed within ninety days of the date
of the Board's denial. Wakefield, however, did nothing for over
one year. It was not until October 20, 1992--more than fourteen
months after the Board's decision--that Wakefield decided to ask
the Board to reopen his case. Because Wakefield did not in good

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faith ask the Board to reopen his case within ninety days from its
August 16, 1991 order of deportation, we are without jurisdiction
to review his claims regarding the Board's order of deportation.
III
The only issue timely raised by this appeal, and over which we
have jurisdiction, is whether the Board abused its discretion in
refusing to reopen Wakefield's case. An alien's motion to reopen
deportation proceedings is not granted unless it appears to the
Board that evidence sought to be offered is material and that it
was not available and could not have been discovered or presented
at the original hearing. 8 C.F.R. § 3.2. Furthermore, motions to
reopen must "state the new facts to be proved at the reopened
hearing and shall be supported by affidavits or other evidentiary
material." 8 C.F.R. § 3.8(a). The Board's determination of
whether an alien has met the regulatory requirements for reopening
is reviewed by this court under the abuse of discretion test.
Ogbemudia v. INS, 988 F.2d 595, 600 (5th Cir. 1993).
In Wakefield's motion to reopen, he states only that he
experienced emotional trouble after returning from a tour of duty
in Korea; that the United Kingdom is a "strange country" to him;
and that he was not afforded legal counsel at his deportation
hearing. The Board denied Wakefield's motion to reopen, stating
that Wakefield had failed to follow the regulatory requirements.
Specifically, the Board found that Wakefield had neither alleged
new facts to be proved nor supported them by affidavits or other

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-7-
evidentiary materials as required. We have no trouble concluding
that the Board did not abuse its discretion in denying Wakefield's
motion to reopen his case. All the information contained in
Wakefield's motion to reopen could have been presented to the Board
at the original hearing. Furthermore, Wakefield failed to support
his motion with affidavits or any other evidence. As such, the
Board properly denied Wakefield's motion to reopen his case.
IV
In conclusion, we find that we are without jurisdiction to
review Wakefield's claims relating to the Board's deportation
order. We do conclude, however, that the Board did not abuse its
discretion in denying Wakefield's motion to reopen his case.
Accordingly, the Board's denial of Wakefield's motion to reopen is
A F F I R M E D.

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