Escobar-Ramos v. I.N.S.

• Decision Date: 20 June 1990
• Docket Number: J,No. 88-7309,ESCOBAR-RAMO,88-7309
• Citation: 927 F.2d 482
• Parties: Andy Mabelose Maximo Martinez-Reyes, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 482

927 F.2d 482

Andy Mabel ESCOBAR-RAMOS, Jose Maximo Martinez-Reyes, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 88-7309.

United States Court of Appeals Ninth Circuit.

Submitted June 20, 1990 ^* Upon Respondent's Petition for Rehearing.

Decided March 1, 1991.

Tom Stanley, Los Angeles, Cal., for petitioners.

Michael C. Johnson, Asst. U.S. Atty., Los Angeles, Cal., David V. Bernal, Office of Immigration Litigation, Civ. Div., U.S Dept. of Justice, Washington, D.C., for respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before TANG, NELSON and REINHARDT, Circuit Judges.

TANG, Circuit Judge:

Petitioners Andy Mabel Escobar-Ramos and Jose Maximo Martinez-Reyes petition for rehearing of a decision of this court denying their petition for review of a decision of the Board of Immigration Appeals (BIA). The BIA had issued an order dismissing their appeal from an Immigration Judge's (IJ) decision finding them deportable and denying their application for asylum.

We deny without prejudice the petition for review of the decision of the BIA but we stay our mandate to permit the BIA to consider petitioners' motion to reopen or reconsider their appeal.

On December 2, 1985, following a hearing the IJ concluded that Escobar-Ramos and Martinez-Reyes were deportable and denied their applications for asylum and withholding.

On December 12, 1985, petitioners appealed to the BIA from the IJ's decision by submitting a notice of appeal, Form I-290A. Petitioners provided four reasons and indicated that they would file a separate written brief or statement after reviewing the transcript of the hearing.

Nearly two years after the deportation hearing, the Immigration Court Clerk of the Office of the Immigration Judge sent the transcript of the hearing to petitioners' counsel on October 19, 1987, and granted petitioners until November 3, 1987 to submit a written brief.

Petitioners submitted no brief. On June 21, 1988, the attorney for the Immigration and Naturalization Service did submit a brief addressing the issues raised in petitioners' notice of appeal.

On June 28, 1988, the BIA dismissed the petitioners' appeal in reliance upon 8 C.F.R. Sec. 3.1(d)(1-a)(i) ¹ because the petitioners did not disclose adequately the basis for the appeal on their notice of appeal, never filed a brief with the BIA despite promising to do so and offered no explanation for the failure to file a brief. The BIA also based its action on 8 C.F.R. Sec. 3.1(d)(1-a)(iv) ² because it concluded that the usual practice of petitioners' counsel was to identify only general issues on the notice of appeal form and not to file a written brief despite assurances that he would do so. The Board concluded that this practice constituted an abuse of process designed to perpetuate petitioners' stay in this country.

This court in an unpublished memorandum, dated September 6, 1989, denied the petitions for review of the BIA's decisions. We noted that petitioners had pointed to no effort on their part to secure additional time or otherwise to provide an adequate explanation of their grounds for appeal during the eight months between the time the transcript was complete and the date the BIA rendered its decision.

In their petition for rehearing, Escobar-Ramos and Martinez-Reyes have elaborated on their original explanation as to why they failed to file a brief with the BIA; they also request rehearing on the basis of the BIA's failure to recite that it reviewed the record before summarily dismissing their appeal as required by 8 C.F.R. Sec. 3.1(d)(1-a)(iv). See Medrano-Villatoro v. INS, 866 F.2d 132, 134 (5th Cir.1989). We issued an opinion reversing and remanding on April 3, 1990, 901 F.2d 695 (9th Cir.1990). Respondent INS thereupon petitioned for rehearing. Upon such rehearing we file this amended opinion.

We agree with the Fifth Circuit holding in Medrano-Villatoro that summary dismissal of a party's appeal is not an appropriate way of dealing with an improper course of conduct by the party's attorney. The BIA is required by 8 C.F.R. Sec. 3.1(d)(1-a)(iv) to base its finding that the appeal is frivolous upon a review of the record for the case under consideration. Because there is no indication that such a review took place, 8 C.F.R. Sec. 3.1(d)(1-a)(iv) cannot justify summary dismissal of petitioners' appeal.

The BIA also relied on 8 C.F.R. Sec. 3.1(d)(1-a)(i) to dismiss summarily the petitioners' appeal on the ground that the statement of reasons for appeal contained in Form I-290A was inadequate.

Form I-290A, the Notice of Appeal to the BIA, contains the potential for misleading the unwary. It requires the appellant to "Briefly state reasons for this appeal." (Emphasis supplied.) The instructions on the reverse side of the form provide that "The Board may deny oral argument and summarily dismiss any appeal in any deportation proceeding in which ... the party concerned fails to specify the reasons for his/her appeal on the reverse side of the form." Appellants are informed that "a brief in support of or in opposition to an appeal is not required." The form then supplies less than three inches of space to provide these reasons for the appeal and does not invite the use of an additional piece of paper.

Despite the apparently liberal standard implied by the instructions contained on Form I-290A the BIA has articulated fairly strict requirements for appellants trying to state their reasons for appeal:

It is ... insufficient to merely assert that the immigration judge improperly found that deportability had been established or denied an application for relief from deportation ... 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.

Matter of Valencia, Interim Decision No. 3006 (BIA 1986).

There is no indication on the face of Form I-290A or in the instructions on the reverse side as to the need for this level of specificity.

When the BIA considers the adequacy of the statement of grounds for appeal for purposes of a possible summary dismissal pursuant to 8 C.F.R. Sec. 3.1(d)(1-a)(i) it has normally considered written briefs submitted by the appellants. The reported cases of this court reviewing such summary dismissals have all involved instances in which the appellant has provided no brief to the BIA. See Martinez-Zelaya v. INS, 841 F.2d 294 (9th Cir.1988); Roque-Carranza v. INS, 778 F.2d 1373 (9th Cir.1985); Reyes-Mendoza v. INS, 774 F.2d 1364 (9th Cir.1985). This is also true in other circuits. Athehortua-Vanegas v. INS, 876 F.2d 238 (1st Cir.1989); Medrano-Villatoro v. INS, 866 F.2d 132 (5th Cir.1989); Bonne-Annee v. INS, 810 F.2d 1077 (11th Cir.1987); Townsend v. INS, 799 F.2d 179 (5th Cir.1986). These opinions assumed that deficiencies in the statements of reasons for appeal on Form I-290A could be remedied by the adequate brief. This court articulated that position in Martinez-Zelaya, 841 F.2d at 296: "We have held that summary dismissal by the BIA is appropriate if an alien submits no separate written brief or statement to the BIA and inadequately informs the BIA of what aspects of the IJ's decision were allegedly incorrect and why."

A fair opportunity for a party appealing to the BIA to prepare an appropriate brief is therefore of crucial importance since the list of reasons for appeal listed on Form I-290A need not be adequate by itself and will frequently not be so.

The immigration courts' practice regarding according sufficient time to appellants to prepare briefs is not reassuring. In this case fifteen days separated the issuance of the transcript in Washington D.C. from the due date for petitioners' brief before the BIA. The deportation hearing transcript was issued in Washington, D.C. and was mailed from there to the office of petitioners' counsel in Los Angeles. The record does not reflect the time that the transcript was en route. The days during which the transcript was in the mail cut into the fifteen day time period that petitioners' attorney had been granted for preparing and submitting the brief. The short time period granted petitioners to submit a brief is in sharp contrast to the two years that the immigration court took in preparing the transcript of the deportation hearing. A check of other cases pending before this court ³ in which the BIA summarily dismissed appeals for inadequate statements of reasons for appeal reveals that in three other cases, appellants were given fifteen days from the date of issuance of the transcript in Washington, D.C. in which to submit briefs, three appellants were given seventeen days, two appellants were given twenty-five days and three appellants were given thirty days. Requests for additional time to submit briefs were sometimes granted, sometimes denied and sometimes not answered.

No precedent exists for guidance...