NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2866
___________
SANTOS E. ELIAS AGUILAR,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A204-758-242)
Immigration Judge: Jason L. Pope
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2021
Before: MCKEE, SHWARTZ and RESTREPO, Circuit Judges
(Opinion filed: July 8, 2021)
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OPINION *
___________
PER CURIAM
Santos Elias Aguilar, proceeding pro se, petitions for review of an order of the
Board of Immigration Appeals (BIA) summarily dismissing his appeal. For the reasons
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
that follow, we will deny the petition.
Aguilar is a native and citizen of Guatemala who entered the United States in 2007
at the age of 13. In 2019, he was charged with removability pursuant to 8 U.S.C.
§ 1227(a)(1)(B), for remaining in the United States for a time longer than permitted.
Aguilar conceded the charge, as well as the allegations in the Notice to Appear, which
included a criminal conviction for contempt and pending criminal charges. The
Immigration Judge (IJ) sustained the charge of removability. Aguilar filed an application
for asylum, withholding of removal, and protection under the Convention Against
Torture. He also sought discretionary cancellation of removal. After a hearing, the IJ
issued a decision denying all relief.
Aguilar appealed the IJ's decision to the BIA. In his notice of appeal (NOA), filed
on March 2, 2020, Aguilar did not specify any legal or factual basis for his appeal. He
indicated that he was unable to prepare a brief because he did not have a written copy of
the IJ’s oral decision, but that he would be “submitting a brief at a schedule [sic] date.”
A.R. at 74. A briefing schedule was issued on May 14, 2020, indicating that briefs had to
be submitted to the BIA by June 4, 2020. On June 9, 2020, Aguilar filed a submission
with the BIA, which included a letter requesting an extension of time to file a brief. In
that letter, Aguilar, who was in the custody of Immigration and Customs Enforcement
and held at the Essex County Correctional Facility (ECCF), maintained that the law
library was closed due to COVID-19, and therefore he could not access a typewriter.
A.R. at 14. The submission was returned to Aguilar as “unfiled” because it did not
include proof of service. Aguilar sent the same submission back to the BIA with a
2
certificate of service, which he asserted was indeed part of his initial submission. He
provided various documents in support of his appeal, but he did not include any
arguments addressing the IJ’s decision.
The Board issued a decision denying the extension request and summarily
dismissing the appeal based on Aguilar’s failure to specify his reasons for the appeal on
Form EOIR–26, see 8 C.F.R. § 1003.1(d)(2)(i)(A), and his failure to file a brief, see 8
C.F.R. § 1003.1(d)(2)(i)(E). The Board specifically noted that, even assuming Aguilar’s
June 9, 2020 filing had included a certificate of service, the extension request would have
been denied because it was untimely filed. Aguilar timely petitioned for review in this
Court.
We have jurisdiction to review final orders of removal pursuant to 8 U.S.C.
§ 1252(a)(1). We review the BIA’s summary dismissal of an appeal for an abuse of
discretion. See Uddin v. Att’y Gen., 870 F.3d 282, 288 (3d Cir. 2017). “Discretionary
decisions of the BIA will not be disturbed unless they are found to be arbitrary, irrational
or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (citation and internal
quotation marks omitted).
The BIA regulations require an appealing party to “identify the reasons for the
appeal in the Notice of Appeal . . . or in any attachments thereto,” as well as to “identify
the findings of fact, the conclusions of law, or both, that are being challenged.” 8 C.F.R.
§ 1003.3(b). The BIA “may summarily dismiss any appeal or portion of any appeal in
any case in which . . . [t]he party concerned fails to specify the reasons for the appeal on
Form EOIR-26 . . . (Notice[ ] of Appeal) or other document filed therewith.” Id.
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§ 1003.1(d)(2)(i)(A). The NOA form contains an explicit warning advising aliens that
the appeal may be summarily dismissed if they fail to “clearly explain the specific facts
and law” on which the appeal is based. A.R.at 75. Aguilar indicated on his NOA that he
could not specify any reasons for his appeal because he did not have a written copy of the
IJ’s oral decision. A.R. at 75. But in compliance with the BIA’s practice, the IJ rendered
his decision orally and recited it in Aguilar’s presence, and, prior to filing his NOA,
Aguilar was served with a copy of the Summary Order, summarizing the IJ’s decision.
See BIA Practice Manual, § 4.2(a)(i) (Feb. 20, 2020). It cannot be said that the Board
abused its discretion in summarily dismissing the appeal pursuant to § 1003.1(d)(2)(i)(A),
where, despite being notified of the requirements, Aguilar wholly failed to allege any
errors with the IJ’s decision in the NOA. Notably, even after receiving a transcript of the
decision, Aguilar did not file any document with the Board advising it of a basis for
appeal. See id., § 4.2(d).
The BIA may also summarily dismiss an appeal if “[t]he party concerned indicates
on Form EOIR-26 . . . 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.” Id. § 1003.1(d)(2)(i)(E) (emphasis added).
The NOA form contains an explicit warning to this effect. A.R. at 75. Aguilar indicated
in his NOA that he would be filing a brief, but his request for an extension of time to file
a brief was untimely. 1 The BIA did not discuss Aguilar’s basis for the delay – that the
1
Although the request for an extension of time was delivered to prison officials at ECCF
for mailing four days before the filing deadline, the BIA does not observe a “mailbox”
4
law library was closed due to COVID-19. But Aguilar did not state why his inability to
access the law library precluded him from submitting a brief, other than to assert that it
prevented access to a typewriter which would make his brief “acceptable” and “look
better presented.” And, in any event, the BIA’s alternative determination under §
1003(d)(2)(i)(A) was sufficient by itself to support summary dismissal. See 8 C.F.R.
§1003.3(b); cf. Esponda v. Att’y Gen., 453 F.3d 1319, 1322 (11th Cir. 2006) (holding
that the BIA may not summarily dismiss an appeal under § 1003.1(d)(2)(i) unless the
notice of appeal fails to identify the reasons for the appeal).
Based on the foregoing, we will deny the petition for review.
rule and does not consider a motion filed until the BIA has received it. See BIA Practice
Manual, § 3.1(a)(i).
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Santos Elias Aguilar v. Attorney General United States
Combined Opinion