Singh v. Gonzales

• Decision Date: 29 July 2005
• Docket Number: No. 03-72494.,03-72494.
• Citation: 416 F.3d 1006
• Parties: Sarbjit SINGH, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

416 F.3d 1006

Sarbjit SINGH, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-72494.

United States Court of Appeals, Ninth Circuit.

Submitted February 9, 2005.^**

Filed July 29, 2005.

Martin Resendez Guajardo, Law Office of Martin Resendez Guajardo, San Francisco, CA, for the petitioner.

Peter D. Keisler, David Bernal, S. Nicole Nardone, Office of Immigration Litigation, Civil Division, United States Justice Department, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-827-217.

Before WALLACE, RAWLINSON, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge.

This case presents yet another due process challenge to the Notice of Appeal and summary dismissal procedures employed by the Board of Immigration Appeals ("BIA").

For more than thirty years, BIA regulations have authorized summary dismissal of appeals for which the petitioner fails to adequately specify the grounds for error. The regulations were later amended to also authorize summary dismissal where the petitioner indicates an intent to file a brief, but subsequently fails either to file the brief or explain his failure to do so. In this appeal, the petitioner claims that both regulations operated to violate his due process rights.

While we have in the past criticized the potential for confusion posed by the BIA's strict specificity requirement, the amended regulation authorizing dismissal for failure to file a brief does not suffer from the same defects. Moreover, the actions of petitioner's counsel in this case persuade us that, rather than a due process violation based on the BIA's summary dismissal procedures, the petitioner has alleged a classic case of ineffective assistance of counsel. Accordingly, we deny petitioner's due process claim based on the summary dismissal, but remand to the BIA for further consideration of his due process ineffective assistance of counsel claim.

I. BACKGROUND

Sarbjit Singh, a native and citizen of India, was charged as removable on the ground that he had overstayed his visa. Singh retained attorney Samuel Maina and applied for asylum, withholding of removal and Convention Against Torture relief. Each of Singh's claims were rejected after a hearing in which the immigration judge ("IJ") found him not credible and ordered his removal.

With Maina's assistance, Singh filed a Notice of Appeal with the BIA using form EOIR-26. In the section requesting the petitioner to "[s]tate in detail the reason(s) for [the] appeal," Maina wrote the following: "IJ erred in finding respondent was not credible and failed to carry his burden." Immediately above Maina's statement, the form contained the following conspicuous admonition: "WARNING: The failure to specify the factual or legal basis for the appeal may lead to summary dismissal without further notice unless you give specific details in a timely, separate written brief or statement filed with the board." Maina checked the box on the form, termed "Item # 6," indicating that he intended to file a separate written brief to comply with the regulation. Directly below this item, another conspicuous instruction read: "WARNING: Your appeal may be summarily dismissed if you indicate in Item # 6 that you will file a separate written brief or statement and, within the time set for filing, you fail to file the brief or statement and do not reasonably explain such failure." Thereafter, by a separate mailing, the BIA instructed the petitioner that his brief would be due on or before April 16, 2001. Maina never filed a brief.

Almost a year after the briefing deadline passed, the BIA summarily dismissed Singh's appeal pursuant to 8 C.F.R. § 3.1(d)(2)(i) (2001). The BIA offered two grounds for its decision:

Pursuant to our regulations, an appeal may be dismissed where a party indicates "that he or she will file a brief or statement in support of the appeal and, thereafter, does not file such a brief or statement, or reasonably explain his or her failure to do so, within the time set for filing. . . ." 8 C.F.R. § 3.1(d)(2)(i)(D) (2001). The Notice of Appeal explicitly warned the respondent of the regulation, and a briefing schedule indicating that the respondent's brief was due on April 16, 2001, was mailed to the respondent. To date, the respondent has not submitted a brief or offered an explanation for the failure to do so. We thus find that summary dismissal is appropriate under 8 C.F.R. § 3.1(d)(2)(i)(D).

In addition, the respondent provided general statements alleging error, but did not specifically identify those errors. The Board may summarily dismiss an appeal when the appealing party fails to specify reasons for the appeal. See 8 C.F.R. § 3.1(d)(2)(i)(A).

In re Sarbjit Singh, A77 827 217, at 1-2 (BIA, March 18, 2002) (citation and footnote omitted). In a footnote, the Board added: "We find that this case is distinguishable from Padilla-Agustin v. INS, 21 F.3d 970 (9th Cir.1994). In the instant case, the record reflects that the respondent was placed on notice that the appeal could be summarily dismissed for failure to timely submit a promised brief or statement." Id. at 1 & n. 1 (citing 8 C.F.R. § 3.1(d)(2)(i)(D)).¹

Approximately one year after the summary dismissal was issued, Singh retained new counsel and moved to reopen his proceedings, arguing that the summary dismissal violated his due process rights and that the 90 day deadline for filing a motion to reopen should be equitably tolled because of his former counsel's ineffective assistance.² In a per curiam order, the Board rejected the motion as untimely filed without addressing the equitable tolling argument. Singh timely petitioned this court to review the BIA's decision.

In the petition for review that we now consider, Singh reasserts the arguments raised in his motion to reopen; namely, that the BIA's summary dismissal violated his due process rights and that his former counsel's ineffective assistance rendered his motion to reopen subject to equitable tolling.

II. STANDARD OF REVIEW

The regulation at issue here, 8 C.F.R. § 3.1(d)(2)(i) (2001), states that the BIA "may" summarily dismiss an appeal for failure to state specific reasons or file a promised brief. Consequently, the Board's decision whether to dismiss is discretionary. Dismissal for failure to comply with this regulation is akin to dismissal in a civil case for failure to prosecute, which we review for abuse of discretion. See, e.g., Link v. Wabash R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) ("Whether such an order can stand on appeal depends not on power but on whether it was within the permissible range of the court's discretion."); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986). Accordingly, we will not reverse a dismissal under 8 C.F.R. § 3.1(d)(2)(i) unless the Board has abused its discretion.

However, the question squarely presented in this case is whether the summary dismissal violated Singh's due process rights. That question is a pure question of law which we review de novo. See Lopez v. INS., 184 F.3d 1097, 1099 (9th Cir.1999) (pure questions of law raised in a petition for review are reviewed de novo). Finally, we review the denial of a motion to reopen for abuse of discretion. See Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998).

III. DISCUSSION

A. Summary Dismissal Procedures

BIA regulations provide for summary dismissal of an appeal where the party concerned either fails to adequately specify the reasons for the appeal, or fails to file a brief after indicating an intent to do so. The particular regulation at issue in this case read as follows:

(i) Standards. The Board 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; [or]

. . .

(D) 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. § 3.1(d)(2)(i)(A), (D) (2001). The BIA referenced both provisions — subpart (A) and subpart (D) — in support of its order summarily dismissing Singh's appeal.

Prior to an amendment, effective January 13, 1994, BIA regulations did not contain a "briefing sanction" providing that an appeal can be summarily dismissed if the petitioner indicates an intent to file a brief and then fails to do so. However, BIA regulations have long contained a "specificity sanction," providing for summary dismissal where the party fails to specify the grounds for appeal on the Notice of Appeal form or in a separate document. See Matter of Holguin, 13 I & N Dec. 423, 425-26 (BIA 1969).

Singh concedes that his reasons for appeal were not specific and that no brief was filed as promised by his former counsel. He argues, however, that both the specificity and briefing sanctions provided for in BIA regulations operated to deprive him of due process, as guaranteed by the Fifth Amendment to the United States Constitution.

Singh's argument is not a novel one. Our court has grappled with the BIA's summary dismissal procedures for nearly a quarter-century. Thus, a brief examination of our prior cases analyzing these procedures is useful.

1. The Specificity Sanction

In Matter of Valencia, the BIA outlined the specificity required to avoid summary dismissal:

It is . . . insufficient to merely assert that the immigration judge improperly found that deportability had been established or denied. . . . Where eligibility for discretionary relief is at issue, it should be stated whether the error relates to grounds of statutory eligibility or to the exercise of discretion. Furthermore, it should be clear whether the alleged impropriety in the...