Vargas-Garcia v. I.N.S., No. 00-71019.

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtFernandez
Citation287 F.3d 882
PartiesMauro VARGAS-GARCIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Decision Date25 April 2002
Docket NumberNo. 00-71019.
287 F.3d 882
Mauro VARGAS-GARCIA, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 00-71019.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 5, 2002.
Filed April 25, 2002.

Peter R. Afrasiabi, Chapman University School of Law, Orange, CA; Melanie J. Boyer (Admitted Student, argued) and Rosa E. Sahagun (Admitted Student, argued), for the Petitioner; Susan E. Hill, Law Offices of Susan E. Hill, Los Angeles, CA, for the Petitioner.

Heather Phillips, Office of Immigration Litigation, (argued); Stephen J. Flynn, Office of Immigration Litigation, Washington, DC, for the respondent.

Page 883

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

Before: FERNANDEZ and RAWLINSON, Circuit Judges, and REED, JR.,* District Judge.

OPINION

FERNANDEZ, Circuit Judge.


Mauro Vargas-Garcia, a citizen of Mexico, 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 suspension of deportation. See INA § 244(a)(1), 8 U.S.C. § 1254(a)(1) (repealed 1996). He argues that the BIA should not have summarily dismissed his appeal without notice. We grant the petition.

BACKGROUND

Vargas illegally entered the United States in 1988, and has been here ever since. He is not married, but he lives with the mother of his child and supports both of them. He sought suspension of deportation at his hearing before the IJ in May of 1998, because, as he explained, he had a United States citizen daughter whom he supported, and it would be a hardship if he were returned to Mexico under the circumstances. The facts were not well developed — the whole of the testimony covers only about six pages of transcript. At the end of the hearing, the IJ issued a four-page decision, which denied suspension on the basis that Vargas had not shown extreme hardship.

Vargas appealed to the BIA and set forth the following as the basis of that appeal:1

The immigration law erred as a matter of law when he denied my application for cancellation of removal under section 240(B)(1)(D) of the Immigration and Naturalization Act (INA), as amended, by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (September 30, 1996). Under new section 240 A(1)(D), I was supposed to establish that my removal would result in "exceptional and extremely unusual" hardship to my child. I support my U.S. citizen daughter and we are very close so I think any reasonable person would agree that if I were to return to my country without her, her life would be much more difficult because her mother would probably need to apply for public benefits to support her and she would need to be raised without a father. I consider the judge interpreted the law in a wrong manner because I think any reasonable person would call what my child would suffer without me "exceptional extreme hardship".

As to the documents proving my physical presence in the United States I was not given any objective reason of why they were being denied or why they lacked credibility. As to my moral character that was not an issue for I have not committed any crime in any part of the world or being arrested. Therefore I am asking you to review my case for I consider the interpretation of the law that the Immigration Judge used was wrong.

Over two years later, the BIA dismissed the appeal because, it said, the "allegations of error" lacked specificity. Vargas then filed his petition for review.

Page 884

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to decide whether the summary dismissal of Vargas' appeal to the BIA denied him due process of law. See 8 U.S.C. § 1105a(a)(1), repealed by Section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996); Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001). We have made it clear that, in general, we review summary dismissals for the purpose of determining whether they are "appropriate," but we have not further articulated the standard of review. See Castillo-Manzanarez v. INS, 65 F.3d 793, 794 (9th Cir.1995). Nor need we do so here.

DISCUSSION

Vargas argues that the combination of the defective Notice of Appeal Form — EOIR 26 — and the summary dismissal without any notice was sufficient to deny him due process. We agree.

We have been forced to deal with EOIR 26, and its predecessors, for over 10 years.2 We extensively vetted it and pointed out its defects in Padilla-Agustin v. INS, 21 F.3d 970 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995). Rather than try to paraphrase what we said there, we will quote Padilla-Agustin at some length, but we should first note that before it was decided, we had already expressed disquiet about the fact that the BIA's decisional law sets out a rather stern specificity standard, while the Notice of Appeal forms do not do so and instead even suggest that not much detail is required. See Toquero, 956 F.2d at 197. At that earlier time, we opined...

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8 practice notes
  • Justice Department, Immigration and Naturalization Service,
    • United States
    • Federal Register August 26, 2002
    • August 26, 2002
    ...of the Notice of Appeal as clear as possible, taking into account the concerns expressed in cases such as Vargas- Garcia v. INS, 287 F.3d 882 (9th Cir. 2002). 6. Barring Oral Argument Before a Single Board One commenter stated that eliminating oral argument in cases assigned to a single Boa......
  • United States v. Charleswell, No. 04–4513.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 1, 2006
    ...Lopez, 445 F.3d at ––––; United States v. Calderon, 391 F.3d 370, 375–76 (2d Cir.2004); Sosa, 387 F.3d 131;see also Vargas–Garcia v. INS, 287 F.3d 882, 884 (9th Cir.2002) (finding that language contained in a Notice of Appeal form misled aliens to believe that they need only make a brief st......
  • U.S. v. Charleswell, No. 04-4513.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 1, 2006
    ...Lopez, 445 F.3d at ___; United States v. Calderon, 391 F.3d 370, 375-76 (2d Cir.2004); Sosa, 387 F.3d 131; see also Vargas-Garcia v. INS, 287 F.3d 882, 884 (9th Cir.2002) (finding that language contained in a Notice of Appeal form misled aliens to believe that they need only make a brief st......
  • Truong v. U.S. Sec'Y of Agri., Slip Op. 06-150. Court No. 05-00419.
    • United States
    • U.S. Court of International Trade
    • October 12, 2006
    ...Process Clause of the United States Constitution, see e.g., Stieberger v. Apfel, 134 F.3d 37, 40 (2d Cir. 1997); cf. Vargas-Garcia v. INS, 287 F.3d 882, 886 (9th Cir.2002); (2) the fact that statutory or regulatory notice requirements evidence a legislative judgment regarding what may be re......
  • Request a trial to view additional results
7 cases
  • United States v. Charleswell, No. 04–4513.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 1, 2006
    ...Lopez, 445 F.3d at ––––; United States v. Calderon, 391 F.3d 370, 375–76 (2d Cir.2004); Sosa, 387 F.3d 131;see also Vargas–Garcia v. INS, 287 F.3d 882, 884 (9th Cir.2002) (finding that language contained in a Notice of Appeal form misled aliens to believe that they need only make a brief st......
  • U.S. v. Charleswell, No. 04-4513.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 1, 2006
    ...Lopez, 445 F.3d at ___; United States v. Calderon, 391 F.3d 370, 375-76 (2d Cir.2004); Sosa, 387 F.3d 131; see also Vargas-Garcia v. INS, 287 F.3d 882, 884 (9th Cir.2002) (finding that language contained in a Notice of Appeal form misled aliens to believe that they need only make a brief st......
  • Truong v. U.S. Sec'Y of Agri., Slip Op. 06-150. Court No. 05-00419.
    • United States
    • U.S. Court of International Trade
    • October 12, 2006
    ...Process Clause of the United States Constitution, see e.g., Stieberger v. Apfel, 134 F.3d 37, 40 (2d Cir. 1997); cf. Vargas-Garcia v. INS, 287 F.3d 882, 886 (9th Cir.2002); (2) the fact that statutory or regulatory notice requirements evidence a legislative judgment regarding what may be re......
  • Rojas-Garcia v. Ashcroft, No. 02-35788.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 29, 2003
    ...specificity requirement in combination with the BIA's summary dismissals without notice violates due process. See Vargas-Garcia v. INS, 287 F.3d 882, 886 (9th Cir.2002) (holding that combination of BIA's strict specificity requirement and summary dismissals without notice results in denial ......
  • Request a trial to view additional results
1 provisions
  • Justice Department, Immigration and Naturalization Service,
    • United States
    • Federal Register August 26, 2002
    • August 26, 2002
    ...of the Notice of Appeal as clear as possible, taking into account the concerns expressed in cases such as Vargas- Garcia v. INS, 287 F.3d 882 (9th Cir. 2002). 6. Barring Oral Argument Before a Single Board One commenter stated that eliminating oral argument in cases assigned to a single Boa......

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