Hoxha v. Holder

• Decision Date: 02 March 2009
• Docket Number: No. 07-2940.,07-2940.
• Citation: 559 F.3d 157
• Parties: Ilir HOXHA; Fjoralba Hoxha; Brenda Hoxha, Petitioners v. Eric H. HOLDER, Jr., Attorney General of the United States; Emilio Gonzalez, Director, United States Citizenship and Immigration Services; United States Department of Justice Executive Office for Immigration Reviewboard of Immigration Appeals, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

559 F.3d 157

Ilir HOXHA; Fjoralba Hoxha; Brenda Hoxha, Petitioners v. Eric H. HOLDER, Jr., Attorney General of the United States; Emilio Gonzalez, Director, United States Citizenship and Immigration Services; United States Department of Justice Executive Office for Immigration Reviewboard of Immigration Appeals, Respondents.

No. 07-2940.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 9, 2008.

Filed: March 02, 2009.

Douglas A. Grannan, Law Office of Greg Prosmushkin, Philadelphia, PA, for Petitioners.

Monica G. Antoun, Paul F. Stone, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: SCIRICA, Chief Judge, McKEE, and SMITH, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Petitioners Ilir Hoxha (Hoxha), his wife Fjoralba, and his daughter Brenda, petition for review of the order of the Board of Immigration Appeals (BIA), which affirmed the denial by the Immigration Judge (IJ) of Hoxha's application for asylum and withholding of removal.¹ Hoxha contends that we should grant the petition for review because the IJ abused his discretion by denying a motion by counsel for a continuance. The government asserts that we lack jurisdiction to review this contention because, although Hoxha raised this point in his Notice of Appeal filed with the BIA, he did not address the issue in the brief he filed thereafter. In short, the government asserts that Hoxha failed to exhaust the issue. For the reasons set forth below, we conclude that the issue was exhausted and that we have jurisdiction. Nonetheless, because the BIA did not address whether the IJ erred by denying the motion for a continuance, we will remand this case to the BIA for it to address that issue in the first instance pursuant to I.N.S. v. Ventura, 537 U.S. 12, 17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).

I.

Ilir, Fjoralba, and Brenda Hoxha are natives and citizens of Albania. They arrived in Miami, Florida in January of 2002, and requested asylum, withholding of removal, and relief under the Convention Against Torture (CAT) as applicants under the Visa Waiver Pilot Program. Their claims were referred to an IJ. Hoxha retained Florida counsel, who filed a motion to transfer venue to Pennsylvania, where his sisters lived. The motion was granted, and a hearing was scheduled in Philadelphia for September 5, 2002. After several continuances and the appearance of new counsel on two occasions, Hoxha appeared for a hearing before an IJ on December 6, 2005. At that time, his third attorney moved to withdraw in the presence of yet another attorney, who was ready to enter his appearance on Hoxha's behalf. The IJ granted the motion to withdraw, but denied the new counsel's request for one more continuance. At the conclusion of the hearing, the IJ denied Hoxha's application for asylum, withholding of removal, and the protections of the CAT.

Hoxha's counsel filed a timely appeal to the BIA. The Notice of Appeal listed four reasons for the appeal. The first reason stated: "The Immigration Judge erred in denying [the] request for a continuance as his previous attorney withdrew just prior to his individual hearing. For this reason, [Hoxha's] counsel was not able to assist him in preparing his claim." The other three issues pertained to the merits of Hoxha's claim for asylum. In response to an inquiry in item eight of the Notice of Appeal form, Hoxha indicated that he intended to file a separate written brief.

Consistent with his response in the Notice of Appeal form, Hoxha filed a brief in support of his appeal. The brief addressed the merits of his claim for asylum and withholding of removal. It was silent, however, as to whether the denial of the continuance was error.

On appeal, the BIA affirmed the IJ's denial of asylum and withholding of removal. It did not address in its opinion Hoxha's contention that the IJ had erred by denying the motion for a continuance.

This timely petition for review followed. Hoxha does not take issue with the BIA's decision denying him asylum and withholding of removal. He argues only that the IJ abused his discretion by denying the motion made by Hoxha's new counsel for a continuance. Because this issue was not addressed in the brief filed with the BIA, the government asserts that the issue has not been exhausted and that jurisdiction is lacking.

II.

Section 1252(d) of the Immigration and Nationality Act provides that the courts of appeals "may review a final order of removal only if—(1) the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). In Abdulrahman v. Ashcroft, 330 F.3d 587 (3d Cir.2003), we declared that this statutory provision required an alien "to raise or exhaust his or her remedies as to each claim or ground for relief [before the BIA] if he or she is to preserve the right of judicial review of that claim." Id. at 595. In scrutinizing Abdulrahman's Notice of Appeal and his brief, we were unable to find any suggestion that he challenged at the administrative level the specific ground raised in his petition for review before this Court.² As a consequence, we determined that jurisdiction was lacking and that "review on that ground [had] been foreclosed." Id.³

In Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir.2004), we considered whether we had jurisdiction to review an alien's due process challenge because, although the due process issue was clearly raised in the Notice of Appeal filed with the BIA, the alien had failed to file a supporting brief. We refused to hold that Bhiski had failed to exhaust his claim under § 1252(d)(1) as he had "made some effort to exhaust, albeit insufficient ..." and there was "nothing in the regulatory scheme that compel[led] the conclusion." Id. at 367. Because the issue was exhausted, we concluded that we had jurisdiction to consider the due process challenge.

We have yet to consider the question presented here: whether we have jurisdiction to review an issue raised by a party in a notice of appeal, but not addressed in the party's brief to the BIA.⁴ After considering the case law and the applicable regulation, we conclude that the identification of an issue in a party's notice of appeal satisfies the statutory requirement of exhaustion provided that the description of that issue in the notice sufficiently apprises the BIA of the basis for the appeal. Failure to address that issue in the brief subsequently filed with the BIA will not deprive us of jurisdiction.

A.

As we noted above, in Bhiski, we considered whether jurisdiction was lacking because the alien failed to file a brief in support of his appeal to the BIA. 373 F.3d at 368. Our analysis in that case began with the regulation governing the filing of a notice of appeal with the BIA. 8 C.F.R. § 1003.3. We emphasized that the regulation did not mandate the filing of a brief with the BIA. Instead, it specified that the appellant "must identify the reasons for the appeal in the Notice of Appeal," and must indicate if he or she would be filing a brief in support of his or her appeal. 8 C.F.R. § 1003.3(b). This latter requirement, we observed, "certainly suggests that filing a brief is optional rather than mandatory." 373 F.3d at 368.

We also noted that these observations were consistent with the fact that the Notice of Appeal Form EIOR—26 contained a warning in a box, instructing that the "failure to specify the factual or legal basis for the appeal may lead to summary dismissal ... unless you give specific details in a timely separate written brief or statement filed with the Board." Id. (quoting Form EIOR—26). Thus, the appeal form also "indicate[d] the optional nature of the brief." Id. As additional support, we cited the BIA's own case law, which acknowledged that a brief may be essential when an issue raised is complex. Id. (citing Matter of Valencia, 19 I & N. Dec. 354, 355 (BIA 1986)). We concluded that "no brief is required as long as the notice of appeal does precisely what it is intended to do—place the BIA on notice of what is at issue." Id. Because Bhiski's Notice of Appeal sufficiently raised the issue on which he sought judicial review, we determined that the issue was exhausted and that we had jurisdiction.

In Yan Lan Wu v. Ashcroft, 393 F.3d 418 (3d Cir.2005), the government argued that jurisdiction was lacking because Yan Lan Wu had failed to put the BIA on notice of her claim that the IJ erred by basing his decision on only her airport interview. Yan Lan Wu's Notice of Appeal argued that the IJ erred by ignoring certain facts pertinent to her claim of persecution, namely that her father had been imprisoned and tortured by the government, and by finding that she feared the local people, rather than the police or government. In her supporting brief, Wu asserted that she had presented sufficient evidence of both past persecution and her fear of future persecution. We reiterated that in Bhiski we held that "so long as an immigration petition makes some effort, however insufficient, to place the Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed to have exhausted her administrative remedies." Id. at 422 (discussing Bhiski, supra). Applying this standard, we acknowledged that Yan Lan Wu did not explicitly argue that the IJ erred by considering only her airport interview. Nonetheless, we determined that the contention in her Notice of Appeal that the IJ's decision was "not supported by substantial evidence within the record" was sufficient to put the BIA "on notice that there was a claim of error hovering around the [IJ's] findings and ... exclusive reliance on the airport interview ...." Id.

Consistent with our approach employed in Yan Lan Wu, we scrutinized both the Notice of Appeal and the brief submitted to the BIA in Lin v. Attorney General, 543 F.3d 114 (3d Cir.2008), to determine whether Lin had challenged...