Juan-Cruz v. INS

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60129
Summary Calendar

PEDRO SAN JUAN-CRUZ,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review of a Final Order of
the Board of Immigration Appeals
(A91 572 726)
(October 20, 1995)

Before GARWOOD, WIENER, and PARKER, Circuit Judges.

PER CURIAM*:

I. FACTS

By Order to Show Cause ("OSC") dated November 27, 1991, and

filed on December 18, 1991, the Immigration and Naturalization

Service ("INS") sought to deport Pedro San Juan-Cruz ("San Juan").

*
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should not be published.
San Juan was initially accused of entering the United States on or

about January 15, 1990, by presenting a Resident Alien Card ("I-

551") issued on the basis of his alleged eligibility as a Special

Agricultural Worker ("SAW"). It was further alleged that San Juan

had obtained his I-551 by fraud because he purchased a fraudulent

affidavit attesting to the fact that he was qualified as a SAW when

he actually was not, and thus, he lacked a valid entry document.

On May 13, 1992, the INS filed an amended OSC alleging that

San Juan entered the United States on or before October 26, 1988,

and that he had obtained an adjustment of status on December 1,

1990, pursuant to § 210 of the Immigration and Nationality Act

("INA"), 8 U.S.C. § 1180, based on his fraudulent SAW status.

Approximately two weeks prior to the filing of the amended OSC, San

Juan's attorney filed an application for a waiver of deportation

pursuant to § 241(a)(1)(H) of the INA, 8 U.S.C. § 1251(a)(1)(H).

The INS opposed the request, arguing that San Juan was not

statutorily eligible for relief because he committed the alleged

fraud at the time of adjustment of status as opposed to the time of

entry. The INS argued, inter alia, that § 241(a)(1)(H) provides a

waiver for aliens who commit fraud at the time of entry only, not

for those who commit fraud at the time of adjustment of status.

An Immigration Judge ("IJ") conducted a hearing on August 25,

1992, to determine whether San Juan was statutorily eligible for a

waiver under § 241(a)(1)(H). San Juan argued that he had made a

number of departures and reentries into the United States

subsequent to the time he committed the alleged fraud regarding the

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adjustment of status. The INS stipulated that San Juan had entered

the United States in or about January 1991, subsequent to the

alleged fraudulent adjustment of status.

The IJ found that San Juan was not statutorily eligible for a

waiver under § 241(a)(1)(H), holding that relief under §

241(a)(1)(H) is available to a respondent in deportation

proceedings who has been "charged with excludability at entry," and

thus, San Juan could not "avail himself of the provisions of

Section 241(a)(1)(H)" because he was not charged with being

excludable at entry but rather, being excludable at the time of

adjustment of status.

San Juan filed a notice of appeal with the Board of

Immigration Appeals ("BIA") on September 2, 1992, which stated:

The Immigration Judge erred in ordering
Respondent deported. Also erred in deciding
that Respondent was not statutorily eligible
to apply for relief under Waiver as per
Section 241(a)(1)(H) of the Act. The facts of
this case support Respondent's right to apply
and be considered for such a Waiver, which the
Judge denied to consider.

The notice of appeal also requested thirty days after receipt of

the hearing transcript to file a brief. San Juan concedes that his

lawyer failed to file a brief.

The INS responded to San Juan's notice of appeal, listing as

an appellate issue, "[w]hether the Immigration Judge erred in

denying relief under § 241(a)(1)(H)." The INS noted that San Juan

had not filed a brief and thus, moved to dismiss the appeal for

lack of prosecution and because "it was not supported by any legal

argument."

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 The BIA summarily dismissed San Juan's appeal, without

reaching the merits, on January 23, 1995. In so doing, the BIA

stated that San Juan had "in no meaningful way identified the basis

of the appeal from the decision of the immigration judge." The

BIA also noted that San Juan had indicated "that he would be filing

a separate written brief or statement in support of his appeal

. . . [but] [n]o brief or statement was subsequently filed by

counsel . . . [and] [n]o explanation has been given for his failure

to file a brief after he indicated he would do so."

San Juan filed a timely petition for review.

II. DISCUSSION

San Juan contends that the BIA erred by summarily dismissing

his appeal because the notice of appeal, although admittedly:

not a `model of clarity,' was adequate to apprise the
Board of the nature of his appeal . . . [and] put the
Board on notice that he was challenging the Immigration
Judge's denial of his application for relief and
deportation under INA 241(a)(1)(H) on the ground that the
Petitioner was statutorily ineligible.

Summary dismissals based on the lack of specificity in a

notice of appeal are reviewed for an abuse of discretion. Medrano-

Villatoro v. I.N.S., 866 F.2d 132, 134 (5th Cir. 1989). In

Medrano-Villatoro, this court held that: 1) the statement of

reasons for appeal must inform the BIA what was wrong about the

IJ's decision and why; 2) the statement must specify whether the

petitioner challenges erroneous findings of fact or law, or both;

3) if a question of law is presented, supporting authority must be

cited, and if the dispute is on the facts, the particular details

at issue must be identified; and 4) if the denial of discretionary

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relief is in question, the statement must disclose whether the

alleged error relates to grounds of statutory eligibility or the

exercise of discretion. Id. at 133-34.

The court further held that although "the petitioner could

have set out his reasons for appeal at greater length in a brief or

separate written statement, he was not required to do so. Nor was

he required to fully argue his position in the notice of appeal."

Id. at 134.

Therefore, because the "petitioner's statement of reasons for

his appeal was sufficiently detailed to allow the BIA to determine

the nature of the error and to guide the BIA in its preliminary

assessment of the record," summary dismissal "on the grounds the

petitioner failed to specify the reasons for the appeal was an

abuse of discretion." Id. It is unclear whether the petitioner in

Medrano-Villatoro listed, as any of his reasons for the appeal, a

question of law; it is clear that he raised a fact issue. Id. at

133-34.

At the time of the Medrano-Villatoro decision, 8 C.F.R.

§ 3.1(d)(1-a)(i) accorded the BIA the discretion to summarily

dismiss an appeal if "`the party concerned fails to specify the

reasons for his appeal on Form I-290A (Notice of Appeal)'."

Medrano-Villatoro, 866 F.2d at 133. On April 6, 1992, the U.S.

Attorney General proposed Interim Regulations amending, inter alia,

8 C.F.R. § 3.1(d)(1-a)(i). 57 Fed. Reg. 11,568-11,575 (April 2,

1992). The proposed Interim Regulations were adopted by the

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Attorney General as final on January 13, 1994. 59 Fed. Reg. 1,896-

1,900 (Jan. 13, 1994).

The proposed, and subsequently finalized, regulations provide

that the BIA has the discretion to summarily dismiss an appeal if

"the party concerned fails to specify the reasons for the appeal on

Form EOIR-26 or Form EOIR-29 (Notices of Appeal) or other documents

filed therewith." 8 C.F.R. § 3.1(d)(1-a)(i)(A). Also, the

regulations in question added § 3.1(d)(1-a)(i)(E) which states that

the BIA has the discretion to summarily dismiss an appeal if "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, did not file [same], or reasonably explain his or

her failure to do so, within the time set for filing."

After the Interim Regulations had been proposed, but prior to

their finalization, this court reiterated that an appeal from the

BIA's summary dismissal, on the ground that a petitioner failed to

specify the basis for an appeal, would be governed by Medrano-

Villatoro. Verduzco-Arevalo v. I.N.S., 989 F.2d 186, 187 (5th Cir.

1993). In Verduzco-Arevalo, this court, without setting out the

grounds contained in the petitioner's notice of appeal, found that

the grounds satisfied "the threshold standard approved in Medrano-

Villatoro," and remanded the case to the BIA for a ruling on the

merits. Id. at 187.

There is no published authority directly on point in this

circuit addressing the adequacy of a notice of appeal which

presents both a question of law and a question of fact, and there

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is no published authority interpreting the regulations finalized on

January 13, 1994, with respect to the BIA's summary dismissal of

appeals. Unpublished authority indicates that a notice of appeal

is subject to summary dismissal under § 3.1(d)(1-a)(i)(A) when a

petitioner fails to cite authority in support of a legal argument.

See Shadwell v. I.N.S., No. 93-5602, slip op. at 3 (5th Cir. Aug.

31, 1994).1

San Juan's notice of appeal states that the IJ erred in

deciding that San Juan "was not statutorily eligible to apply for

relief under a Waiver as per Section 241(a)(1)(H)." The notice

also states that the "facts of this case support [San Juan's] right

to apply and be considered for such a Waiver." San Juan's

statement of reasons is not "sufficiently detailed to allow the BIA

to determine the nature of the error and to guide the BIA in its

preliminary assessment of the record." Medrano-Villatoro, 866 F.2d

at 134. It was not an abuse of discretion for the BIA to conclude

that the notice did not tell the BIA what was wrong with its

decision. Furthermore, San Juan's notice did not specifically cite

supporting authority regarding his presentation of a question of

law. Id.

San Juan filed his notice of appeal in September 1992. The

proposed regulations discussed above, originally proposed in April

1
Shadwell involved a summary dismissal under §
3.1(d)(1-a)(i)(A) for, inter alia, failure "to offer supporting
authority for [the] alleged legal errors." Shadwell, slip op. at
3. However, unlike the instant case which appealed a legal issue
concerning statutory eligibility for a waiver of deportation,
Shadwell concerned a legal issue concerning discretionary
eligibility for a waiver of deportation. Id. at 1-3.

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1992, became final on January 13, 1994. The BIA then dismissed San

Juan's appeal on January 23, 1995. Thus, the regulations became

final after the notice was filed yet before the appeal was

dismissed. However, this court need not address the applicability

of the regulations in this setting. Whether or not the regulations

apply, San Juan's notice was insufficient under Medrano-Villatoro.

San Juan devotes a significant amount of his appellate brief

to arguing the merits of the claims raised before the IJ. This

court is without jurisdiction to entertain the merits of his claims

and thus, must decline to do so because this court's review is

confined to the BIA's decision. See Ozdemir v. I.N.S., 46 F.3d 6,

8 (5th Cir. 1994) (court does not have jurisdiction to consider

substantive issues not raised before the BIA); Townsend v. I.N.S.,

799 F.2d 179, 181-82 (5th Cir. 1986) (insufficient notice of appeal

to BIA is tantamount to a failure to exhaust administrative

remedies which, when statutorily mandated, as it is in this case,

see 8 U.S.C. § 1105a(c), is jurisdictional, precluding review by

this court).

The order of the BIA is therefore AFFIRMED.

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