FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BELKIS MARISELA NOLASCO- No. 20-70187
AMAYA,
Petitioner, Agency No.
A098-488-798
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2021*
Pasadena, California
Filed September 28, 2021
Before: Susan P. Graber, Consuelo M. Callahan, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge Callahan
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 NOLASCO-AMAYA V. GARLAND
SUMMARY**
Immigration
Granting in part and dismissing in part Belkis Nolasco-
Amaya’s petition for review of the Board of Immigration
Appeals’ summary dismissal of her appeal pursuant to
8 C.F.R. §§ 1003.1(d)(2)(i)(A) and (E), and remanding, the
panel held that given her status as a pro se litigant, Nolasco-
Amaya’s Notice of Appeal was sufficiently specific to inform
the Board of the issues challenged on appeal, and the Board
therefore violated her right to due process by summarily
dismissing her appeal.
The panel explained that under § 1003.1(d), a petitioner
must provide meaningful guidance to the Board by informing
it of the issues contested on appeal; a generalized and
conclusory statement about the proceedings before the IJ does
not suffice. The panel wrote that when a petitioner gives
detailed reasons to support her appeal, either in a separate
brief or on the Notice of Appeal itself, summary dismissal
under 8 C.F.R. § 1003.1(d)(2)(i)(E), for failure to file a brief,
violates her due process rights as guaranteed by the Fifth
Amendment. The panel explained that the purpose of the
specificity requirement is to ensure that the Board is
adequately apprised of the issues on appeal such that it is not
left to search through the record and speculate on what
possible errors the petitioner claims.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NOLASCO-AMAYA V. GARLAND 3
The panel wrote that although this court has consistently
applied the Board’s strict specificity requirement, it also
construes liberally claims raised by pro se petitioners before
the Board. Further, the Board may not ignore a pro se
petitioner’s inartful legal arguments if they suffice to give
notice of the petitioner’s reasons for appeal.
Noting that Nolasco-Amaya was in withholding-only
proceedings, the panel concluded that given the limited relief
to which she was entitled, Nolasco-Amaya’s Notice of
Appeal would not leave the Board guessing as to how and
why she thought that the IJ had erred. The panel explained
that Nolasco-Amaya’s statement that "the police from my
government of Honduras didn’t do nothing to help me" put
the Board on notice that she believed the IJ was incorrect in
concluding that she had failed to meet her burden of
demonstrating that the police would be unable or unwilling to
protect her. Additionally, the panel wrote that, in context,
Nolasco-Amaya’s statement that "[t]he gangs MS-13 [are]
there in all the places in Honduras" notified the Board that
she disputed the IJ’s conclusion that she could relocate safely
within Honduras. As to Nolasco-Amaya’s CAT claim, the
panel observed that Nolasco-Amaya’s Notice of Appeal
stated, in conclusory fashion, that "these people are going to
torture me or kill me," but did not point to evidence offered
in support of that assertion. The panel wrote that this court
has stated that a petitioner need not challenge every basis for
the IJ’s decision, and explained that Nolasco-Amaya’s failure
to discuss, in her Notice of Appeal, past torture or the
likelihood of future torture did not mean that her entire appeal
was automatically subject to summary dismissal. Rather, the
panel concluded that Nolasco-Amaya adequately set forth the
reasons for her appeal by highlighting the IJ’s errors
concerning government acquiescence and internal relocation.
4 NOLASCO-AMAYA V. GARLAND
The panel remanded for the Board to consider the merits of
Nolasco-Amaya’s claims.
Because Nolasco-Amaya did not dispute that she is an
alien, who was subject to a prior removal order, and who
illegally reentered the United States, and because she did not
establish a gross miscarriage of justice stemming from the
issuance of the initial removal order, the panel concluded that
it lacked jurisdiction to consider her collateral attack on that
order.
Dissenting, Judge Callahan wrote that in her view the
majority allowed the general rule governing the liberal
interpretation of pro se filings to overwhelm and virtually
nullify the Board’s rules requiring petitioners to specify the
grounds for their administrative appeals with particularity,
even though this court has previously held that those
requirements apply to pro se litigants. Even construed
liberally, Judge Callahan wrote that Nolasco-Amaya’s notice
of appeal was insufficient to provide meaningful notice of the
precise issues contested on appeal.
COUNSEL
Luis Cortes Romero, Immigrant Advocacy & Litigation
Center PLLC, Kent, Washington, for Petitioner.
John V. Coughlan, Acting Assistant Attorney General;
Anthony P. Nicastro, Assistant Director; Dana M. Camilleri,
Trial Attorney; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
NOLASCO-AMAYA V. GARLAND 5
OPINION
GRABER, Circuit Judge:
Petitioner Belkis Nolasco-Amaya, a native and citizen of
Honduras, sought withholding of removal and protection
under the Convention Against Torture (“CAT”). An
immigration judge (“IJ”) denied her requested relief.
Petitioner filed a Notice of Appeal to the Board of
Immigration Appeals (“BIA”) without the assistance of
counsel. The BIA summarily dismissed her appeal pursuant
to 8 C.F.R. § 1003.1(d)(2)(i)(A) and (E). Petitioner
challenges that summary dismissal, arguing that it violated
her right to due process.
We have jurisdiction under 8 U.S.C. § 1252. Petitioner’s
Notice of Appeal was sufficiently specific to inform the BIA
of the issues challenged on appeal, given her status as a pro
se litigant. Accordingly, the BIA violated Petitioner’s right
to due process by summarily dismissing her appeal. We grant
the petition and remand for the BIA to consider the merits of
Petitioner’s appeal.1
1
As a separate matter, Petitioner argues that the government’s service
of the Notice to Appear for her initial order of removal was defective. She
does not dispute that she “(1) . . . is an alien, (2) who was subject to a prior
removal order, and (3) who illegally reentered the United States.”
Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en
banc). Petitioner is foreclosed from challenging reinstatement of her prior
removal order due to defective service. Id. at 496. And she fails to
establish that there was a “gross miscarriage of justice” stemming from the
issuance of the removal order. Vega-Anguiano v. Barr, 982 F.3d 542, 547
(9th Cir. 2019). Accordingly, we lack jurisdiction to consider Petitioner’s
collateral attack.
6 NOLASCO-AMAYA V. GARLAND
FACTUAL AND PROCEDURAL BACKGROUND
The government initiated removal proceedings in 2005.
But Petitioner left the United States and returned to Honduras
after her mother fell ill. An IJ then issued an in absentia
removal order. After Petitioner reentered the United States in
2019, the government reinstated its earlier removal order
pursuant to 8 U.S.C. § 1231(a)(5). As a result, Petitioner was
ineligible for asylum and was placed in withholding-only
proceedings. INA § 241(a)(5), 8 U.S.C. § 1231(a)(5); 64 Fed.
Reg. 8478-01, 8485 (Feb. 19, 1999).
An IJ denied Petitioner’s applications for withholding of
removal and protection under CAT. He assumed that
Petitioner testified credibly. And he concluded that Petitioner
had demonstrated past persecution on account of a protected
ground. But the IJ found that Petitioner had not established
that the Honduran government was unable or unwilling to
protect her. Further, the IJ reasoned that Petitioner could
relocate within Honduras. Finally, the IJ concluded that
Petitioner was not entitled to protection under CAT because
she had established neither past torture nor government
acquiescence.
Petitioner filed a Notice of Appeal pro se. In the section
regarding the reasons for her appeal, Petitioner wrote the
following:
I can’t return because these people are going
to torture me or kill me and my daughters and
the police from my government of Honduras
didn’t do nothing to help me and if them
didn’t help me I don’t know who could help
me that’s why I ask you not deport me to my
NOLASCO-AMAYA V. GARLAND 7
country. I present all my proofs. Please thank
you!! Very much!! The gangs MS-13 there
in all the places in Honduras.
She also checked a box stating that she intended to file a
separate written brief or statement.
The BIA dismissed Petitioner’s appeal. In the BIA’s
view, the statements in the Notice of Appeal “do not
meaningfully apprise the Board of the specific reasons
underlying her challenge to the Immigration Judge’s
decision.” The BIA’s dismissal order also noted that
Petitioner failed to file a separate brief, “even though she
checked the block on the Notice of Appeal indicating that she
would be filing a separate written brief or statement in
support of her appeal.” The BIA concluded that Petitioner’s
appeal “should be summarily dismissed pursuant to 8 C.F.R.
§ 1003.1(d)(2)(i)(A), for failure to adequately specify the
reasons for the appeal, and 8 C.F.R. § 1003.1(d)(2)(i)(E), for
failure to file a brief or statement within the time set for
filing.”
THE REGULATION
The regulation at issue reads as follows:
(i) Standards. A single Board member or
panel may summarily dismiss any appeal or
portion of any appeal in any case in which:
(A) The party concerned fails to specify the
reasons for the appeal on Form EOIR–26 or
Form EOIR–29 (Notices of Appeal) or other
document filed therewith;
8 NOLASCO-AMAYA V. GARLAND
...
(E) The party concerned indicates on Form
EOIR–26 or Form EOIR–29 that he or she
will file a brief or statement in support of the
appeal and, thereafter, does not file such brief
or statement, or reasonably explain his or her
failure to do so, within the time set for filing
....
8 C.F.R. § 1003.1(d)(2)(i) (emphasis added).
STANDARDS OF REVIEW
We review for abuse of discretion the BIA’s summary
dismissal of an appeal. Singh v. Gonzales, 416 F.3d 1006,
1009 (9th Cir. 2005). But whether the summary dismissal
violated a petitioner’s due process rights is a question of law
that we review de novo. Id.
DISCUSSION
A. General Principles
Under 8 C.F.R. § 1003.1(d)(2)(i), a petitioner may
provide the BIA with the requisite notice of the reasons for
her appeal “by setting out the reasons on the Notice of Appeal
itself or by filing a separate brief.” Casas-Chavez v. INS,
300 F.3d 1088, 1090 (9th Cir. 2002) (emphasis added). “The
BIA employs a strict specificity requirement when evaluating
the notice of reasons for appeal.” Id. As the agency has
explained:
NOLASCO-AMAYA V. GARLAND 9
It is . . . insufficient to merely assert that the
immigration judge improperly found that
deportability had been established or denied
. . . . [I]t should be clear whether the alleged
impropriety in the decision lies with the
immigration judge’s interpretation of the facts
or his application of legal standards. Where a
question of law is presented, supporting
authority should be included, and where the
dispute is on the facts, there should be a
discussion of the particular details contested.
Toquero v. INS, 956 F.2d 193, 195 (9th Cir. 1992) (ellipses in
original) (quoting Matter of Valencia, 19 I. & N. Dec. 354
(BIA 1986)). A noncitizen must “provide meaningful
guidance to the BIA” by informing it of the issues contested
on appeal; a “generalized and conclusory statement about the
proceedings before the IJ” does not suffice. Id. But “[w]hen
an alien gives detailed reasons to support h[er] appeal, either
in a separate brief or on the Notice of Appeal itself, summary
dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(E) [(failure to file
a brief)] violates the alien’s due process rights as guaranteed
by the Fifth Amendment.” Garcia-Cortez v. Ashcroft,
366 F.3d 749, 753 (9th Cir. 2004) (emphasis added).
The purpose of the “specificity requirement is to ensure
that the BIA is adequately apprised of the issues on appeal so
that the BIA is not left to search through the record and
speculate on what possible errors the [petitioner] claims.”
Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820 (9th Cir. 2003)
(alteration in original) (internal quotation marks omitted). In
other words, the BIA should not be “left guessing at how and
why petitioner thought the [IJ] erred.” Casas-Chavez,
300 F.3d at 1090 (internal quotation marks omitted). “If the
10 NOLASCO-AMAYA V. GARLAND
BIA was forced to decipher general statements of error,
unsupported by specific factual or legal references, the BIA
would have to spend time and resources reconstructing the
proceedings before the IJ and building the petitioner’s legal
case, in some instances only to conclude that the appeal was
utterly without merit.” Rojas-Garcia, 339 F.3d at 820.
B. Summary Dismissal
We frequently deny petitions for review of the BIA’s
summary dismissal of an appeal. Singh v. Ashcroft, 361 F.3d
1152, 1157 (9th Cir. 2004). For example, in Toquero,
counsel wrote in the Notice of Appeal that “[t]he Immigration
Judge erred in denying Respondent’s application for
suspension as the evidence presented established that
Respondent would suffer extreme hardship if deported to the
Philippines.” Toquero, 956 F.2d at 194. We concluded that
this statement fell short of the regulation’s requirement of
specificity. “While the Notice correctly focused on the issue
in contention,” we reasoned, “it did not indicate which facts
were in contention and how the IJ misinterpreted the
evidence.” Id. at 196 (emphases added). Likewise, in Singh,
petitioner’s counsel filed a conclusory two-sentence Notice
of Appeal asserting that the IJ “g[ave] undue weight to minor
inconsistencies in the testimony” and “fail[ed] to consider
proper and consistent testimony.” Singh, 361 F.3d at 1155.
But the petitioner did not identify the evidence that was the
subject of his objections. We denied review because the
Notice of Appeal provided only a “meager description of the
grounds for appeal” that was insufficient to satisfy the
specificity rule. Id. at 1155 n.2.
And in Rojas-Garcia, we again found that the Notice of
Appeal, which cited four grounds of error, lacked specificity
NOLASCO-AMAYA V. GARLAND 11
because it “did not indicate if [petitioner’s] challenges were
based on the IJ’s interpretation of facts, and did not provide
‘supporting authority’ on any question of law presented.”
Rojas-Garcia, 339 F.3d at 820–21. The petitioner asserted
that the IJ improperly had admitted evidence in violation of
the pre-hearing order, but failed to suggest how the pre-
hearing order was violated or what evidence should have
been excluded. Id.
On the other hand, in Casas-Chavez, we concluded that
the counseled petitioners’ Notice of Appeal was sufficiently
specific because it identified the portions of the IJ’s opinion
being appealed and cited evidence and legal authority in
support. Casas-Chavez, 300 F.3d at 1090–91, 1091 n.3. And
in Garcia-Cortez, 366 F.3d at 753, we held that the Notice of
Appeal filed by pro se petitioners was sufficiently specific
because they challenged the IJ’s treatment of a particular
piece of evidence. Although they did not use the term “due
process,” petitioners also made a “valid and specific” due
process argument that the IJ had failed to advise them that
they could call witnesses. Id.
Although we have applied consistently the BIA’s strict
specificity requirement, we also construe liberally claims
raised by pro se petitioners before the BIA. In Ren v. Holder,
648 F.3d 1079, 1083 (9th Cir. 2011), the IJ concluded that the
petitioner had failed to offer corroborating evidence in
support of his claim of persecution. The petitioner wrote in
his Notice of Appeal that he “believe[d] that [he] did establish
that [his] life/freedom would have been threatened in China
on account of [his] strong beliefs and practice of
Christianity.” Id. at 1084. The government argued that we
lacked jurisdiction to review the IJ’s corroboration finding
because the petitioner had failed to exhaust his administrative
12 NOLASCO-AMAYA V. GARLAND
remedies by challenging that finding before the BIA. Id. at
1083. We reasoned that, although the petitioner “did not use
the specific word ‘corroboration,’ it was clear that he was
challenging the IJ’s determination that he had failed to meet
his burden of proof or, in other words, that he had failed to
‘establish’ that he had suffered past persecution or had a
well-founded fear of future persecution.” Id. at 1084. We
explained that “[a] pro se petitioner is not required to use the
precise legal terminology . . . to make clear the basis of his
challenge.” Id. (emphasis added). Although the petitioner’s
Notice of Appeal was “inartful,” it provided the BIA with
adequate notice. Id.
Similarly, in Coronado v. Holder, 759 F.3d 977, 986 (9th
Cir. 2014), we held that a pro se petitioner had given the BIA
adequate notice of his claim. The petitioner had argued that
he received ineffective assistance of counsel. Id. In his
Notice of Appeal, the petitioner stated that his former counsel
“showed incompetence by failing to object to many of the
questions and negative facts comments” made by the IJ. Id.
We reasoned that, “[a]lthough [petitioner’s] pro se brief was
inartful,” his “complaints about his counsel’s deficient
performance were sufficient to put the BIA on notice of his
claim for ineffective assistance of counsel.” Id.
To be sure, Coronado and Ren arose in a different
context. Those cases involved pro se petitioners who
allegedly had failed to exhaust arguments before the BIA.
Accordingly, those decisions did not apply the specificity
requirement of 8 C.F.R. § 1003.1(d)(2)(i)(A). But we did
apply that regulation in Garcia-Cortez, 366 F.3d at 752–53.
And all three of those decisions demonstrate the principle
that the BIA may not ignore a pro se petitioner’s inartful
legal arguments if they suffice to give notice of the
NOLASCO-AMAYA V. GARLAND 13
petitioner’s reasons for appeal. That is, taken together, our
prior decisions establish that pro se notices of appeal to the
BIA should be construed liberally.
Turning to the case before us, we conclude that
Petitioner’s Notice of Appeal—at least in part—is more like
the notices of appeal in those cases where we have
determined that the specificity rule was satisfied than in those
cases where we did not. Petitioner identified two claims.
Given the context of her case, Petitioner’s statements were
not so general as to require the BIA to scrutinize the record
and “speculate on what possible errors” she was claiming.
Rojas-Garcia, 339 F.3d at 820 (internal quotation marks
omitted). As noted, Petitioner was in withholding-only
proceedings. Therefore, the IJ’s decision focused on only
three issues: the headings in his decision are “UNABLE OR
UNWILLING TO PROTECT,” “INTERNAL
RELOCATION,” and “PROTECTION UNDER THE
CONVENTION AGAINST TORTURE.”
Given the limited relief to which Petitioner was entitled,
her Notice of Appeal would not leave the BIA “guessing” as
to “how and why” Petitioner thought that the IJ had erred.
Casas-Chavez, 300 F.3d at 1090. Petitioner wrote that “the
police from my government of Honduras didn’t do nothing to
help me.” That statement put the BIA on notice that
Petitioner believed the IJ was incorrect in concluding that she
had failed to meet her burden of demonstrating that the police
would be unable or unwilling to protect her. Additionally,
Petitioner wrote that “[t]he gangs MS-13 there in all the
places in Honduras.” In context, that statement notified the
14 NOLASCO-AMAYA V. GARLAND
BIA that Petitioner disputed the IJ’s conclusion that she could
relocate safely within Honduras.2
The only reason for Petitioner to have raised those issues
is to identify how the IJ erred in his decision. When a
petitioner submits a Notice of Appeal without counsel, she
need not state explicitly that “the IJ was wrong because”
before explaining the grounds for her appeal.
Garcia-Cortez supports our conclusion. In that case, we
ruled that the BIA should not have dismissed the pro se
petitioners’ appeal summarily. 366 F.3d at 750. The IJ had
concluded that the petitioners were ineligible for cancellation
of removal because they had not been in the United States
before a particular date. Id. at 750–51. In their Notice of
Appeal, petitioners argued that the IJ “made a mistake”
because they gave him proof establishing how long they had
been in the country. Id. at 751. They mentioned that they
had submitted a letter from an employer and complained that
the IJ did not consider the letter. Id. They also wrote that the
IJ did not give them notice, before their hearing, that they
should present witnesses. Id. We held that the Notice of
Appeal was sufficiently specific because the petitioners
explained “in a short and plain statement exactly how and
why the IJ erred.” Id. at 753. Similarly, here, Petitioner
explained, in a short and plain statement, that the government
2
The dissent asserts that the argument Petitioner makes in her notice
of appeal to the BIA is inconsistent with her testimony before the IJ.
Dissent at 18. But that assertion is irrelevant because it conflates the
merits with the clarity of the claim expressed in the notice of appeal. See
id. (“[H]ow could the IJ have erred in not addressing an argument
Petitioner did not make?”). A petitioner’s failure to preserve an issue
before an IJ pertains to the merits of that issue, not to the specificity of its
presentation to the BIA.
NOLASCO-AMAYA V. GARLAND 15
of Honduras did nothing to help her and that the MS-13 gang
operated throughout Honduras; both assertions directly
contradicted the IJ’s conclusions.
Petitioner contends that her Notice of Appeal, read
liberally, also establishes that she presented the argument
that she will be tortured if returned to Honduras. The IJ
concluded that Petitioner had not demonstrated that it is more
likely than not that she would be tortured if she is returned.
The Notice of Appeal states, in conclusory fashion, that
“these people are going to torture me or kill me” but does not
point to evidence offered in support of that assertion. We
have explained that “[t]he alien need not challenge every
basis for the IJ’s decision.” Id. Petitioner’s failure to discuss,
in her Notice of Appeal, past torture or the likelihood of
future torture does not mean that her entire appeal is
automatically subject to summary dismissal. She adequately
set forth the reasons for her appeal by highlighting the IJ’s
errors in regard to government acquiescence and internal
relocation.
In summary, Petitioner’s Notice of Appeal was
sufficiently specific to inform the BIA of two issues that she
was challenging, given her status as a pro se litigant.
Therefore, the BIA violated her right to due process by
summarily dismissing her appeal. Whether Petitioner’s
claims are meritorious is not before us; that question is for the
BIA to decide in the first instance. We remand to the BIA for
it to consider the merits of Petitioner’s claims.
PETITION DISMISSED in part, GRANTED in part;
REMANDED. The parties shall bear their own costs on
appeal.
16 NOLASCO-AMAYA V. GARLAND
CALLAHAN, Circuit Judge, dissenting:
I respectfully dissent because, in my view, the majority
has allowed the general rule governing the liberal
interpretation of pro se filings to overwhelm and virtually
nullify the BIA’s rules requiring petitioners to specify the
grounds for their administrative appeals with particularity,
even though we have previously held that these requirements
apply to pro se litigants. Garcia-Cortez v. Ashcroft, 366 F.3d
749, 753 (9th Cir. 2004).
Admittedly, these two legal principles are in tension. The
majority is certainly correct to acknowledge and account for
the longstanding general rule that we liberally construe filings
by pro se litigants. See, e.g., Agyeman v. I.N.S., 296 F.3d
871, 878 (9th Cir. 2002) (refusing to require pro se litigant to
use “exact legalese” in a notice of appeal to the BIA). On the
other hand, the BIA requires that all notices of appeal meet
“rather strict specificity requirements.” Toquero v. I.N.S.,
956 F.2d 193, 195 (9th Cir. 1992). Noncitizens challenging
an IJ’s decision must identify “the particular details
contested,” “how the evidence” supports the noncitizen’s
arguments, and “why the IJ erred.” Id. (internal quotations
and citation omitted). It is insufficient to merely “make[] a
generalized and conclusory statement about the proceedings
before the IJ.” Id. These requirements apply even where the
petitioner proceeds pro se. Garcia-Cortez, 366 F.3d at 750,
753. Thus, while we liberally construe the notices of appeal
filed by pro se petitioners, the notices must still be sufficient
to provide “meaningful notice of the precise issues contested
on appeal.” Id. at 754.
Petitioner’s notice of appeal here presented two
contentions in support of her CAT claim. First, she stated
NOLASCO-AMAYA V. GARLAND 17
that she could not return to Honduras because she and her
daughters would be tortured or killed, and that “the police
from my government of Honduras didn’t do nothing to help
me.” The majority holds that this contention adequately “put
the BIA on notice that Petitioner believed the IJ was incorrect
in concluding that she had failed to meet her burden of
demonstrating that the police would be unable or unwilling to
protect her.” Maj. at 13.
But under the BIA’s specificity requirements, it is not
sufficient to merely assert that the IJ wrongly determined that
the government was unable or willing to protect her without
providing any further details about how or why the IJ erred.
Petitioner’s statement—even as liberally construed by the
majority—is no more than a partial restatement of the legal
standard governing the availability of CAT relief, which
requires that a petitioner demonstrate that “she will more
likely than not be tortured with the consent or acquiescence
of a public official if removed to her native country.”
Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir.
2020). Petitioner’s statement “did not indicate which facts
were in contention and how the IJ misinterpreted the
evidence.” Toquero, 956 F.2d at 196. Because Petitioner
provided the BIA with no more than a generalized claim that
the IJ should have granted her CAT relief, her claim fails to
adequately set forth the basis for her appeal under applicable
BIA regulations. See Reyes-Mendoza v. I.N.S., 774 F.2d
1364, 1365 (9th Cir. 1985) (affirming BIA’s summary
dismissal of appeal where the notice of appeal contained only
the conclusory statement that there was a “[w]rongful denial
of suspension of deportation”); see also Toquero, 956 F.2d
at 195 (stating that notice is inadequate where it only states
“that [the] IJ’s decision was ‘against the weight of the
evidence,’ ‘against the law controlling the case,’ and
18 NOLASCO-AMAYA V. GARLAND
‘arbitrary and capricious’” (quoting Lozada v. I.N.S.,
857 F.2d 10, 13 (1st Cir. 1988))).
Petitioner’s second contention in her notice of appeal, that
“[t]he gangs MS-13 [are] there in all the places in Honduras,”
suggests that the IJ erred in concluding that Petitioner could
safely relocate within Honduras. Maj. at 13. This claim at
least identifies a specific gang and contains the allegation that
the gang’s presence is pervasive throughout the country. But
in the context of Petitioner’s specific case, it does little to
identify what claims she intends to raise on appeal. Petitioner
did not mention any issues with gangs in her declaration in
support of her applications for relief before the IJ, and
pointedly failed to argue at her hearing (even after being
prompted by the IJ) that the individuals who had threatened
her family were affiliated with a gang. Certainly, the
underlying merits of Petitioner’s substantive argument that
she could not safely relocate is not currently before us;
instead, we are currently called upon to evaluate only the
sufficiency of her notice of appeal. But the notice of appeal’s
inconsistency with Petitioner’s prior position that there was
no gang involvement in her case left the BIA having to guess
at how Petitioner claimed the IJ erred. After all, the IJ
expressly gave her the opportunity to argue she was
threatened by MS-13, and she refused to do so—how could
the IJ have erred in not addressing an argument Petitioner did
not make? The notice thus left the BIA in the position of
having to “search through the record and speculate on what
possible errors” Petitioner is claiming that the IJ made on this
point. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820 (9th Cir.
2003) (quoting Matter of Valencia, 19 I. & N. Dec. 354, 355
(BIA 1986)).
NOLASCO-AMAYA V. GARLAND 19
Contrary to the majority’s assertion, Petitioner’s
conclusory statements in her notice of appeal are not as
detailed as the petitioners’ notice at issue in Garcia-Cortez.
There, the pro se petitioners filed the following justification
for their administrative appeal:
We are asking to go back to the Judge because
we believe he made a mistake. We had asked
for suspension of deportation and gave the
Judge proof that we had been in U.S. for more
than 10 years. José had a letter from the
employment he had 10 years ago and the
Judge didn’t even take that into account. We
don’t have any bad record and never got
welfare or anything like that. We have kids
born in U.S. We thought we didn’t need
Attorney because when we gave papers to the
Judge he took them and said they were good.
The Judge said the last time that we should
have brought witnesses but he did not tell us
ahead of time. We now want to get Attorney
to help us with this and separate written briefs
and send you copies of all our proofs so you
can send our case back to that Judge because
we are here 10 yrs.
Garcia-Cortez, 366 F.3d at 751. We held that this satisfied
the specificity standards for two reasons. First, while the
petitioners did not use legally precise terminology, they
highlighted a specific piece of evidence (the letter from one
of the petitioner’s former employers) that the IJ had failed to
give sufficient weight. Id. at 753. Second, they concretely
identified a specific procedural right (the right to call
witnesses in support of their application for cancellation of
20 NOLASCO-AMAYA V. GARLAND
removal) which the IJ had arguably not adequately advised
them of. Id. at 753–54. Here, Petitioner cites no specific
evidence that the IJ failed to properly consider in concluding
that the Petitioner had not met her burden to show that the
Honduran government would acquiesce in her torture, nor
does she explain what (if any) legal rights the IJ deprived her
of at her hearing.
Nor do our prior decisions in Coronado v. Holder,
759 F.3d 977 (9th Cir. 2014), and Ren v. Holder, 648 F.3d
1079 (9th Cir. 2011), have any particular relevance here.
Those cases did not involve summary dismissals and thus did
not apply the “rigorous requirements” of 8 C.F.R.
§ 1003.1(d)(2)(i)(A) applicable in this context. Toquero,
956 F.2d at 196; see also Garcia-Cortez, 366 F.3d at 753.
The majority’s admission that those cases “arose in a
different context,” Maj. at 12, is significant; the standards
applicable to the petitioners in those cases were simply not
comparable to the standard that applies to Petitioner here.
While we liberally construe pro se filings, the fact that a
litigant is proceeding pro se does not mean that we must
ignore the applicable and governing legal standards. Cf. Soto
v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (“This rule
[requiring that courts liberally construe pro se filings]
exempts pro se inmates from strict compliance with the
summary judgment rules, but it does not exempt them from
all compliance.”); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.
1995) (“Although we construe pleadings liberally in their
favor, pro se litigants are bound by the rules of procedure.”).
Even liberally construed, Petitioner’s notice of appeal at best
expressed generalized disagreement with the IJ’s conclusions
regarding the acquiescence of the Honduran government, and
alleged that internal relocation was infeasible for a reason that
NOLASCO-AMAYA V. GARLAND 21
she declined to pursue before the IJ. This is not sufficient to
provide “meaningful notice of the precise issues contested on
appeal.” Garcia-Cortez, 366 F.3d at 754. Accordingly, I
respectfully dissent.