Padilla-Agustin v. I.N.S., PADILLA-AGUSTI

• Decision Date: 21 April 1994
• Docket Number: 93-70351,PADILLA-AGUSTI,Nos. 92-70611,P,s. 92-70611
• Citation: 21 F.3d 970
• Parties: Oscaretitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 970

21 F.3d 970

Oscar PADILLA-AGUSTIN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Nos. 92-70611, 93-70351.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 9, 1994.

Decided April 21, 1994.

Lee A. O'Connor (on brief and argued), San Fernando Valley Neighborhood Legal Services, Pacoima, CA, for petitioner in No. 92-70611.

Lee A. O'Connor (on brief and argued), San Fernando Valley Neighborhood Legal Services, Pacoima, CA, for petitioner in No. 93-70531.

Timothy B. Walthall, Office of Immigration Litigation, U.S. Dept. of Justice (on brief and argued); for respondent in No. 92-70611.

Timothy B. Walthall, Office of Immigration Litigation, U.S. Dept. of Justice (on brief and argued); David J. Kline, Asst. Director; and Petition for Review of Decisions of the Board of Immigration Appeals

April Dawson, Law Clerk, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, (on brief), for respondent in No. 93-70351.

Before: PREGERSON, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

Opinion by Judge FERNANDEZ; Partial concurrence and partial dissent by Judge O'SCANNLAIN.

FERNANDEZ, Circuit Judge:

Oscar Padilla-Agustin, a native and citizen of Guatemala, petitions for review of the decision of the Board of Immigration Appeals which summarily dismissed his appeal of the Immigration Judge's ruling denying him asylum and withholding of deportation. He also petitions for review of the BIA's denial of his motions to reopen and reconsider its decision. Padilla was found to be in violation of Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(2) (1988), because he entered the United States without inspection.

Padilla argues that the BIA erred in summarily dismissing his appeal without adequately informing him that it was contemplating summary dismissal, or, in the alternative, that the BIA erred in summarily dismissing his appeal because his Notice of Appeal adequately specified the reasons for the appeal. He also contends that the BIA erred in denying his first motion to reopen and reconsider, because he presented new evidence and the summary dismissal was in error. We affirm the judgment of the BIA on the first motion to reopen and reconsider. We reverse the ruling of the BIA on the second motion to reconsider and on the summary dismissal because we determine the notice given Padilla of the potential for summary dismissal was, when coupled with the subsequent procedures, constitutionally deficient.

BACKGROUND

Padilla is a 51 year old native and citizen of Guatemala who entered the United States without inspection on November 9, 1990. On November 10, 1990, the Immigration and Naturalization Service issued an Order to Show Cause why he should not be deported under Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251 (1988). During a hearing before the IJ, at which he was not represented by counsel, Padilla conceded his deportability, designated Guatemala as the country for his deportation, and submitted his asylum application and supporting documentation. Since Padilla spoke no English, only his native Spanish, a court interpreter assisted him at this hearing and at all of those which followed. The IJ denied Padilla's asylum and withholding of deportation applications. The IJ also denied Padilla's request for voluntary departure.

Padilla, still representing himself, filed a Notice of Appeal, form EOIR-26, with the BIA on September 14, 1991, without any supporting brief. The only reasons for appeal stated on the form were:

I request my Political Asylum request be accepted because I fled my country in order to save myself because the Political situation I was persecuted. Now if I return I'll be--mistreated or killed I need the chance to stay in this country until the situation change in my country.

He also checked boxes to state that he waived oral argument and would not file a separate brief or statement.

The BIA summarily dismissed Padilla's appeal pursuant to 8 C.F.R. Sec. 3.1(d)(1-a)(i) (1992). It reasoned that he "in no meaningful way identified the basis for the appeal ... [and] failed to specify any respect in which the immigration judge's decision [was] incorrect."

On March 24, 1992, Padilla, represented by counsel, filed a motion to reconsider and reopen the matter before the BIA. He sought to argue the merits of the IJ's decision against him. He also submitted some newspaper clippings concerning the state of affairs in Guatemala and the activities of guerrillas there. The BIA denied the motion to reopen and reconsider on June 8, 1992. It reasoned that (as to the motion to reconsider) the summary dismissal was entirely proper Padilla then filed a second motion to reconsider the BIA's summary dismissal of his appeal based on the fact that the BIA did not notify him, before the actual dismissal, that it was considering summary dismissal. He claimed that he did not timely receive a copy of the INS's motion requesting a dismissal, due to addressing errors or due to forwarding delays at the post office. He also argued that he was legally entitled to receive notice of the possibility of summary dismissal. The BIA rejected his contentions and denied the motion on February 22, 1993, reasoning that it had actually dismissed the appeal on a different basis from that requested by the INS and no legal requirement mandated that an alien be notified of an impending summary dismissal. Padilla then petitioned for review of that decision. Both petitions are now before us.

because Padilla had only offered general and conclusory statements in support of his appeal. As to the motion to reopen, it said that he had failed to present new facts or evidence that would warrant reopening the matter. He petitioned this court for review of that ruling on September 4, 1992.

JURISDICTION AND STANDARDS OF REVIEW

A. Jurisdiction

Our jurisdiction is based upon 8 U.S.C. Sec. 1105a(a). However, as a threshold matter, the INS contends that this court lacks jurisdiction over the BIA's decision to summarily dismiss because Padilla did not file a separate appeal of that decision before the BIA ruled on his first motion to reopen and reconsider. This contention is without merit. It is well-established in this Circuit that "[b]ecause the time for filing a petition for judicial review on the underlying order does not begin to run until the agency acts upon [a] motion to reopen, it is not necessary for a petitioner to file a protective appeal from the BIA's original decision in order to preserve the issues raised therein." Chu v. INS, 875 F.2d 777, 779-80 (9th Cir.1989) (internal quotation omitted). Indeed, "[n]ot only is a premature petition not necessary, it is a nullity because there is no final deportation order to review." Id. In other words, where an alien "seeks to reopen his case with the BIA before he files a petition for review," as Padilla did here, "he must wait to ask for his one hearing in the Ninth Circuit until after the BIA has ruled on his motion to reopen." Ogio v. INS, 2 F.3d 959, 960 (9th Cir.1993) (per curiam) (emphasis in original). We therefore have jurisdiction to review both the BIA's summary dismissal of Padilla's appeal and its subsequent decisions on the motions to reopen and reconsider.

B. Standard of Review

Although this Circuit has merely analyzed whether summary dismissals by the BIA are "appropriate," without articulating the applicable standard of review (see Martinez-Zelaya v. INS, 841 F.2d 294, 295 (9th Cir.1988)), other circuits have reviewed summary dismissals by the BIA based upon lack of specificity of the bases for appeal under an abuse of discretion standard. See Townsend v. INS, 799 F.2d 179, 182 (5th Cir.1986) (per curiam). The BIA's decisions denying reconsideration, as well as motions to reopen, are also reviewed for an abuse of discretion. INS v. Doherty, --- U.S. ----, ----, 112 S.Ct. 719, 725, 116 L.Ed.2d 823 (1992) (denial of motion to reopen reviewed for abuse of discretion regardless of the underlying basis of the alien's request to reopen); INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 912, 99 L.Ed.2d 90 (1988) (denial of motion to reopen based on failure to introduce previously unavailable, material evidence reviewed for abuse of discretion); Saldana v. INS, 762 F.2d 824, 827 (9th Cir.1985), amended, 785 F.2d 650 (1986) (BIA's decisions concerning both motions to reconsider and motions to reopen should be reviewed for an abuse of discretion). Under the abuse of discretion standard, the decision of the BIA "will be upheld unless it is arbitrary, irrational, or contrary to law." Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985) (quotation omitted). Where the BIA's denial of a motion to reopen is based on a question of law, however, it is reviewed de novo. Gonzales v. INS, 921 F.2d 236, 238 (9th Cir.1990), overruled on other grounds, Butros v. INS, 990 F.2d 1142 (9th Cir.1993).

DISCUSSION

A. Adequacy of the Summary Dismissal Procedures

Padilla claims that the INS failed to timely serve him with its motion to summarily dismiss his appeal. He also claims that because the BIA failed to provide him with notice of a possible summary dismissal, that dismissal violated his fifth amendment right to procedural due process.

We reject the first of his contentions. Padilla simply cannot establish that he was prejudiced by the INS's failure to properly serve him with its motion to dismiss: the INS sought to dismiss the appeal as frivolous under 8 C.F.R. Sec. 3.1(d)(1-a)(iv) (1992), but the BIA independently dismissed his appeal under another provision, 8 C.F.R. Sec. 3.1(d)(1-a)(i) (1992), because he failed to specify the bases for his appeal. See Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th Cir.1980) (stating that a "[v]iolation of a regulation renders a deportation unlawful only if [it] prejudiced the interests of the alien") (internal quotation omitted), cert. denied, 456 U.S. 994, ...