Ivezaj v. I.N.S.

Decision Date08 August 1991
Docket NumberNo. 90-3980,90-3980
Citation940 F.2d 660
PartiesUnpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Marko IVEZAJ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

Before MERRITT, Chief Judge, KEITH, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

MERRITT, Chief Judge.

Petitioner appeals the dismissal of his appeal of an order of deportation by the Board of Immigration Appeals ("Board"). He lists his nationality as Albanian, and his birthplace in Titograd, Yugoslavia, in 1967. He entered the United States in 1987 without going through immigration, and because of that is deportable. Petitioner did not contest deportability on those grounds before the Immigration Judge, but rather filed an application for political asylum.

The Immigration Judge found Petitioner's evidence concerning persecution to be speculative at best and found that he had not shown a well-founded fear of persecution. He held that punishment for avoiding military service is not persecution and that the kind of discrimination set out by petitioner did not rise to the level of persecution.

Petitioner filed a notice of appeal with the Board of Immigration Appeals but failed to file a statement or brief detailing the error of the Immigration Judge and the basis for reversing that decision. The Board dismissed the appeal based on this failure, citing 8 C.F.R. 3.1(d)(1-a)(i), which allows the Board to "summarily dismiss any appeal in any case in which (i) any party concerned fails to specify the reasons for his appeal on Form I-290A (Notice of Appeal)...." It held that the failure of the Petitioner to so specify in the Notice of Appeal or in a statement or brief "utterly fail to enlighten the Board as to the reasons, if any, for the appeal." (Order of the Board at p. 1).

The Immigration and Naturalization Service (the "Service") urges that the shortcomings in Petitioner's filings are tantamount to a failure to perfect his appeal and constitute a failure to exhaust his administrative remedies, resulting in a lack of jurisdiction in this Court. While it is clear that a true failure to exhaust administrative remedies is jurisdictional, Dokic v. Immigration and Nauralization Service, 899 F.2d 530, 532 (6th Cir.1990); Athehortua-Vanegas v. Immigration and Naturalization Service, 876 F.2d 238, 240 (1st Cir.1989); Garcia-Mir v. Smith, 766 F.2d 1478 (11th Cir.1988); Townsend v. United States Department of Justice Immigration and Naturalization Service, 799 F.2d 179 (5th Cir.1986); Hernandez v. Immigration and Naturalization Service, 539 F.2d 384 (5th Cir.1976), only Townsend in the Fifth Circuit holds that there is no jurisdiction in a situation such as the one before us. We believe the better rule is set out in Athehortua-Vanegas, 876 F.2d 238, which carefully analyzes the laws and regulations and holds that the dismissal of the appeal by the Board is a final order, reviewable by the Courts of Appeals. This general result has been reached without such thorough analysis by the other Circuits as well, and later by the Fifth Circuit in Medrano-Villatoro v. Immigration and Naturalization Service, 966 F.2d 132 (5th Cir.1989). Martinez-Zelaya v. Immigration and Naturalization Service, 841 F.2d 294 (9th Cir.1988); Bonne-Annee v. Immigration and Naturalization Service, 810 F.2d 1077 (11th Cir.1987); Der-Rong Chour v. Immigration and Naturalization Service, 578 F.2d 464 (2nd Cir.1978), cert....

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2 cases
  • Ivezaj v. I.N.S.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 28, 1996
    ...(6th Cir.1994) (unpublished) (taking judicial notice of the persecution of ethnic Albanians in Kosovo); Ivezaj v. INS, 940 F.2d 660, 1991 WL 151157, at * 2 (6th Cir.1991) (unpublished) (same) [Anton Ivezaj does not appear to be a relation to this case's Marko Ivezaj]; Dalou v. INS, 914 F.2d......
  • Palushaj v. I.N.S., 93-3196
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 17, 1994
    ...and the effect of both on the asylum requests. We note that this same reasoning was followed in Ivezaj v. INS, 940 F.2d 660 (table), No. 90-3980, 1991 WL 151157 (6th Cir., Aug. 8, 1991), also involving a Yugoslav citizen of Albanian ethnicity. See also Dokic v. INS, 899 F.2d 530 (6th This c......

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