[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13875 JUNE 28, 2006
________________________ THOMAS K. KAHN
CLERK
BIA Nos. A79-474-675 & A79-474-676
ILIAN ESPONDA,
ROSALBA HERLINDA RINCON,
ADRIAN C. ESPONDA,
JUAN F. ESPONDA,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 28, 2006)
Before DUBINA and KRAVITCH, Circuit Judges and MILLS *, District Judge.
*
Honorable Richard Mills , United States District Judge for the Central District of
Illinois, sitting by designation.
KRAVITCH, Circuit Judge:
The primary issue presented in this petition for review is whether the Board
of Immigration Appeals (“BIA”) abused its discretion by summarily dismissing an
appeal pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(E) solely because a petitioner
indicated on the Notice of Appeal that he would file a brief and then failed to file a
brief or offer an explanation for failing to do so.
I. Background
Ilian Esponda, his wife and two children, natives and citizens of Colombia,
sought review of an Immigration Judge’s order denying them asylum, withholding
of removal and relief under the United Nations Convention Against Torture . They
filed a Notice of Appeal, Form EOIR-26 (“Notice of Appeal”) with the BIA. The
Notice of Appeal asks petitioners to “clearly explain the specific facts and law on
which you base your appeal,” warning that “[t]he Board may summarily dismiss
your appeal if it cannot tell from this Notice of Appeal, or any statements attached
to this Notice of Appeal, why you are appealing.” In addition, 8 C.F.R. §
1003.3(b) states:
The party taking the appeal must identify the reasons for the appeal in
the Notice of Appeal . . . or in any attachments thereto, in order to
avoid summary dismissal pursuant to § 1003.1(d)(2)(i). . . . The
appellant must also indicate in the Notice of Appeal . . . whether he or
she will be filing a separate written brief or statement in support of the
appeal. . . .”
2
The Espondas set out in detail the grounds for their appeal on the Notice
itself. They also marked a box in item #8 of the Notice of Appeal indicating that
they would “file a separate written brief or statement after filing th[e] Notice of
Appeal.” The following bolded language appeared directly below the box the
Espondas marked:
WARNING: If you mark “Yes” in item #8, you will be expected to
file a written brief or statement after you receive a briefing
schedule from the Board. The Board may summarily dismiss
your appeal if you do not file a brief or statement within the time
set in the briefing schedule.
Almost a year later, the Executive Office for Immigration Review (“EOIR”)
served the Espondas with a notice of the briefing schedule for their appeal. The
briefing schedule notice indicated that their supporting brief was due on March 17,
2005, and again warned that if the Espondas indicated on the Notice of Appeal that
they would file a brief or statement, failure to do so by the deadline indicated on
the briefing schedule may result in the BIA summarily dismissing their appeal.
Ultimately, the Espondas failed to file any supplementary material with the
BIA, and the BIA summarily dismissed their appeal pursuant to 8 C.F.R. §
1003.1(d)(2)(i)(E), which provides that:
A single Board member or panel may summarily dismiss any appeal or
portion of any appeal in any case in which . . . [t]he 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
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so, within the time set for filing.
The Espondas now petition this court for review.
II. Standard of Review
Previously, we have reviewed the BIA’s summary dismissal of an appeal to
determine if the dismissal was “appropriate,” without articulating the precise
standard of review. See Bayro v. Reno, 142 F.3d 1377, 1379 (11th Cir. 1998);
Bonne-Annee v. INS, 810 F.2d 1077, 1078 (11th Cir. 1987) (per curiam). Because
the regulation at issue here, 8 C.F.R. § 1003.1(d)(2)(i)(E), indicates that the BIA
“may” summarily dismiss an appeal, it vests discretion in the BIA. Thus, we
review the BIA’s application of the regulation to summarily dismiss the Espondas’
appeal for abuse of discretion. See Singh v. Gonzales, 416 F.3d 1006, 1009 (9th
Cir. 2005); Rioja v. Ashcroft, 317 F.3d 514, 515 (5th Cir. 2003).
III. Discussion
The Espondas argue that the BIA abused its discretion by summarily
dismissing their appeal on the basis of 8 C.F.R. § 1003.1(d)(2)(i)(E) because they
sufficiently apprised the BIA of the specific grounds for their appeal on the Notice
of Appeal form. The Espondas concede that they did not file a supplementary brief
or advise the BIA of their reasons for failing to do so.
Although this is matter of first impression in this circuit, we touched on the
relevant issue in Bayro v. Reno. In Bayro, as in the instant case, the petitioners had
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indicated they would file a supplemental brief on their Notice of Appeal and then
failed to do so. Id. at 1378. Unlike the instant case, however, the Bayro petitioners
gave only general reasons supporting their appeal on the Notice of Appeal. Id. at
1379. Although the Bayro court ultimately affirmed the BIA’s summary dismissal
of the petitioners’ appeal, the court did not rest its affirmance on §
1003.1(d)(2)(i)(E). Id. Instead, although § 1003.1(d)(2)(i)(E) was in effect at that
time, the court stated the prior standard: when a petitioner “fails to apprise the
Board of the specific grounds for his appeal, whether by specifying the reasons in
the notice of appeal or by submitting an additional statement or brief, summary
dismissal is appropriate.” Id. (quoting Bonne-Annee, 810 F.2d at 1078) (emphasis
in original). Thus, we suggested in Bayro that the above standard survived the
enactment of § 1003.1(d)(2)(i)(E). Until now, however, we have not squarely
addressed the question of whether the failure to submit a supplementary brief
would alone justify summary dismissal even in cases where petitioners adequately
set out the basis for their appeal on the Notice of Appeal.
In considering this very question, the Ninth Circuit held summary dismissals
appropriate only where a petitioner has failed to apprise the tribunal of the grounds
for his appeal with sufficient specificity, whether by submitting a supplementary
brief or by adequately stating his grounds for appeal on the Notice of Appeal. See
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Casas-Chavez v. INS, 300 F.3d 1088, 1090-92 (9th Cir. 2002).1 The Ninth Circuit
noted that an alternative interpretation of the regulation would raise constitutional
questions. Id. at 1090 n.2; see also Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753
(9th Cir. 2004) (“When an alien gives detailed reasons to support his 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) violates the alien’s due process rights as guaranteed by
the Fifth Amendment.”).2
The Fifth Circuit, on the other hand, has held that the BIA is within its
statutorily designated discretion when it summarily dismisses an appeal after a
petitioner indicates on the notice of appeal form that a separate brief or statement
will be filed and then fails to submit such brief or statement or offer an explanation
before the filing deadline. Rioja v. Ashcroft, 317 F.3d 514, 515-16 (5th Cir. 2003).
The Fifth Circuit, however, did not confront the precise question we face in the
instant case. In Rioja, the BIA summarily dismissed the petitioner’s appeal both
because the petitioner had failed to submit a separate brief as he had indicated he
would and because the notice of appeal failed to apprise the BIA adequately of the
1
The Fourth Circuit joined the Ninth Circuit in an unpublished opinion. See Bovovo v.
Ashcroft, 120 Fed. Appx. 936, 938-39 (4th Cir. 2004) (“In dismissing Bovovo’s appeal and
subsequent Motion to Reconsider, the Board abused its discretion by basing its decisions solely
on Bovovo’s failure to file a brief after checking the box in Item 6 stating that he would do so. In
both decisions, the Board failed to even mention, much less analyze for sufficiency, Bovovo's
stated reasons for the appeal on Form EOIR-26.”).
2
We note that the Espondas have not challenged the constitutionality of the regulation.
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bases for his appeal. Id. at 515.
Although 8 C.F.R. § 1003.1(d)(2)(i)(E) may appear clear on its face, it
conflicts with 8 C.F.R. § 1003.3(b), which states that “[a] party taking the appeal
must identify the reasons for the appeal in the Notice of Appeal (Form EOIR-26 or
Form EOIR-29) or in any attachments thereto, in order to avoid summary dismissal
pursuant to § 1003.1(d)(2)(i).” Thus, § 1003.3(b) can be interpreted to shield
petitioners from summary dismissal so long as they adequately identify the basis
for their appeal either on the Notice of Appeal or in a supplementary brief. The
conflict between these two provisions creates an ambiguity regarding whether the
BIA may summarily dismiss an appeal in cases where, although petitioners have
indicated that they will file a supplementary brief and then failed to do so or offer
an explanation, they have fully apprised the Board of the basis for their appeal on
the Notice of Appeal.
The Supreme Court on several occasions has noted the longstanding
principle that ambiguities in deportation laws should be construed in favor of the
alien. See, e.g., INS v. St. Cyr, 533 U.S. 289, 320 (2001); INS v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987). In light of this principle, we hold that
the BIA abused its discretion when, without determining whether the Notice of
Appeal adequately set forth the basis for the petitioners’ appeal, it summarily
dismissed the appeal solely because petitioners indicated on the Notice of Appeal
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that they would file a supplementary brief and then failed to do so and failed to
offer an explanation for not filing a brief.
The Supreme Court has instructed that “a court of appeals should remand a
case to an agency for decision of a matter that statutes place primarily in agency
hands.” INS v. Ventura, 537 U.S. 12, 16 (2002); see also Gonzales v. Thomas, 126
S.Ct. 1613, 1615 (2006). Accordingly, we GRANT the Espondas’ petition for
review and REMAND to the BIA for a determination of whether the grounds
given on the Espondas’ Notice of Appeal are adequate to apprise the BIA of the
basis for their appeal.
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