Casas-Chavez v. I.N.S., No. 00-71558.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtLay
Citation300 F.3d 1088
PartiesAntonio CASAS-CHAVEZ; Clementina Avila-Espinoza, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Decision Date20 August 2002
Docket NumberNo. 00-71558.
300 F.3d 1088
Antonio CASAS-CHAVEZ; Clementina Avila-Espinoza, Petitioners,
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 00-71558.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 10, 2002.
Filed August 20, 2002.

Page 1089

Veronica L. Burris Valentine, Las Vegas, NV; Charles E. Nichol, San Francisco, CA, for the petitioners.

Patrick Shen, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for the respondent.

Petition to Review a Decision of the Board of Immigration Appeals. I&NS Nos. A76-276-463, A76-276-465.

Before LAY,* FERGUSON and TALLMAN, Circuit Judges.

OPINION

LAY, Circuit Judge.


Antonio Casas-Chavez and Clementina Avila-Espinoza, husband and wife, are natives and citizens of Mexico. The Immigration and Naturalization Service (INS) issued Orders to Show Cause on January 16, 1997, charging Petitioners as deportable pursuant to INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (1994) (entering without inspection). Petitioners admitted the allegations and conceded deportability. In September 1998, an immigration judge denied the applications for suspension of deportation on the grounds that Casas-Chavez did not meet the requirement of seven consecutive years of physical presence in the United States, and because Avila-Espinoza failed to demonstrate "extreme hardship" as required for relief. The immigration judge allowed Petitioners to voluntarily depart in lieu of deportation.

Following the immigration judge's decision, Petitioners, with the aid of counsel, filed a timely Notice of Appeal with the Board of Immigration Appeals (BIA). In the Notice of Appeal, Petitioners specified their reasons for appeal, and also indicated they would file a separate brief supporting their argument. The BIA instructed Petitioners that their brief would be due on or before March 18, 1999. Petitioners' former counsel requested an extension of that date, and was granted until April 8, 1999, to file a brief. No brief was ever filed. On October 23, 2000, the BIA summarily dismissed Petitioners' appeal for failure to file a brief, pursuant to 8 C.F.R. § 3.1(d)(2)(i)(D).1

We have jurisdiction under former § 106 of the INA, 8 U.S.C. § 1105a(a) (1994). See Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) § 309(c)(4), Pub.L. 104-208, 110 Stat. 3009 (Sept. 30, 1996); Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997). This court has not specifically articulated a standard for reviewing summary dismissals. Castillo-Manzanarez v. INS, 65 F.3d 793, 794 (9th Cir.1995). Instead, the court reviews summary dismissals to determine whether they are appropriate. Id.

Section 3.1(d)(2)(i), sets out the conditions under which the BIA may summarily dismiss appeals. The specific regulation at issue in this case reads as follows:

(i) 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;

...

(D) The party concerned indicates on Form EOIR-26 or Form EOIR-29

Page 1090

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) (2001). The BIA found the failure to file a brief necessitated the summary dismissal of the appeal.

The BIA employs a strict specificity requirement when evaluating the notice of reasons for appeal. See, e.g., Castillo-Manzanarez, 65 F.3d at 795. The notice requirement has been outlined as follows:

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 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) (quoting Matter of Valencia, Interim Decision No. 3006 (BIA 1986) (emphasis omitted) (citation omitted)). The purpose of this strict notice requirement is to ensure that "the Board [is not] left guessing at how and why petitioner thought the court erred." Id. (internal citation and quotations omitted).

The notice sought under the regulation can be accomplished in one of two ways: by setting out the reasons on the Notice of Appeal itself or by filing a separate brief. See, e.g., Vargas-Garcia v. INS, 287 F.3d 882, 886 (9th Cir.2002). As a result, no longer does the requirement of specificity look to whether a brief was filed. See id.; Castillo-Manzanarez, 65 F.3d at 796 (finding...

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24 practice notes
  • Rojas-Garcia v. Ashcroft, No. 02-35788.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 29, 2003
    ...of an appeal filed with the BIA, a petitioner must state with sufficient specificity the ground for appeal. See Casas-Chavez v. INS, 300 F.3d 1088, 1089-90 (9th Cir.2002). See also 8 C.F.R. § 1003.1(d)(2)(i) (allowing the BIA to summarily dismiss appeals when the petitioner fails to specify......
  • McKelry v. Butts, Case No. 2:19-cv-07445-MWF (JDE)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • December 2, 2019
    ...that further amendment cannot cure the defects, "there is no need to prolong the litigation by permitting further amendment." Chaset, 300 F.3d at 1088; Cato, 70 F.3d at 1105-06. Here, the Court finds that further leave is not warranted as it is absolutely clear that further leave to amend w......
  • Roberto Jose Cota v. Santa Ana Police Dep't, 8:21-cv-01774-MWF-JDE
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • June 17, 2022
    ...it is clear that a complaint cannot be cured by amendment, the Court may dismiss without leave to amend. See, e.g., Chaset, 300 F.3d at 1088 (holding that “there is no need to prolong the litigation by permitting further amendment” where the “basic flaw” in the pleading cannot be cured by a......
  • Archer v. Retter, Case No. 2:20-cv-00759-DSF (JDE)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 18, 2020
    ...that further amendment cannot cure the defects, "there is no need to prolong the litigation by permitting further amendment." Chaset, 300 F.3d at 1088; Cato, 70 F.3d at 1105-06. Here, the Court finds that further leave is not warranted as it is absolutely clear that further leave to amend w......
  • Request a trial to view additional results
23 cases
  • McKelry v. Butts, Case No. 2:19-cv-07445-MWF (JDE)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • December 2, 2019
    ...that further amendment cannot cure the defects, "there is no need to prolong the litigation by permitting further amendment." Chaset, 300 F.3d at 1088; Cato, 70 F.3d at 1105-06. Here, the Court finds that further leave is not warranted as it is absolutely clear that further leave to amend w......
  • Rojas-Garcia v. Ashcroft, No. 02-35788.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 29, 2003
    ...of an appeal filed with the BIA, a petitioner must state with sufficient specificity the ground for appeal. See Casas-Chavez v. INS, 300 F.3d 1088, 1089-90 (9th Cir.2002). See also 8 C.F.R. § 1003.1(d)(2)(i) (allowing the BIA to summarily dismiss appeals when the petitioner fails to specify......
  • Archer v. Retter, Case No. 2:20-cv-00759-DSF (JDE)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 18, 2020
    ...that further amendment cannot cure the defects, "there is no need to prolong the litigation by permitting further amendment." Chaset, 300 F.3d at 1088; Cato, 70 F.3d at 1105-06. Here, the Court finds that further leave is not warranted as it is absolutely clear that further leave to amend w......
  • Kokar v. Gonzales, No. 05-4641.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 1, 2007
    ...her right to due process. Specifically, relying on Garcia-Cortez v. Ashcroft, 366 F.3d 749 (9th Cir.2004), and Casas-Chavez v. INS, 300 F.3d 1088 (9th Cir.2002), Ms. Kokar claims that, when an appellant has articulated the basis of her claim in the notice of appeal, summary dismissal for fa......
  • Request a trial to view additional results

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