Your trial in immigration court is over. It is time
to discuss appealing the decision. The immigration judge
asks if you "reserve appeal." You indicate
that you do. You then are given the deadline for filing
a Notice of Appeal � the Notice of Appeal must be received
at the Board of Immigration Appeals no later than thirty
days after the decision of the immigration judge is
rendered1. You leave court, sometimes with
a Notice of Appeal packet, which contains Form EOIR-26,
"Notice of Appeal from a Decision of an Immigration
Judge," and Form EOIR-27, "Notice of Appearance
as Attorney Before BIA."
The notice of appeal informs the Board of Immigration
Appeals that an alien is appealing a decision. The regulations
governing appealing are predominantly found at 8 C.F.R.
�1003.3(a)(1)2, 8 C.F.R. � 1003.3(a)(3)3,
and 8 C.F.R. � 1003.1(d)4.
These regulations suggest that an appeal can be dismissed
without any administrative review under several conditions.
Relevant to our discussion are two grounds: (1) when
the Notice of Appeal lacks specificity; and (2) when
the appellant indicates on the form that he or she will
file a brief and does not file the brief. Over the years,
the Ninth Circuit Court of Appeals has heard several
cases on the issue and has helped define the validity
and scope of the regulations. Despite the decisions,
there is much ambiguity as to the authority of the BIA
to dismiss an appeal for these two reasons. Ambiguity
results from changes in the regulations themselves,
changes to the appeal form, EOIR-26, and the fact that
there are several significant permutations in fact patterns.
The permutations are:
1. Notice of Appeal with specificity, indicating that
a brief would be filed, and then no brief filed;
2. Notice of Appeal with specificity indicating that
no brief would be filed, and then no brief filed;
3. Notice of Appeal without specificity, indicating
that a brief would be filed, and then and no brief filed;
4. Notice of Appeal without specificity stating that
no brief would be filed, and no brief filed;
5. Notice of Appeal without specificity and a brief5.
Each of these permutations may also vary depending
upon whether the alien is represented by counsel or
appealing pro se.
KEY CASES.
Three important cases are Garcia-Cortez v. Ashcroft,
366 F.3d 749 (9th Cir. 2004); Vargas-Garcia
v. INS, 287 F.3d 882 (9th Cir. 2002);
and Singh v. Gonzales, 416 F.3d 1006 (9th Cir.
2005).
In Garcia-Cortez, unrepresented aliens appealed
a denial of Cancellation of Removal for Certain Nonpermanent
Residents under INA � 240A(b). Remarkably for unrepresented
aliens, their notice of appeal was detailed and specific.
The appellants noted that the immigration judge did
not consider evidence they submitted regarding their
long residence in the United States and that they were
misled by the immigration judge as to the necessity
to bring witnesses to court, which the court of appeals
found was an allegation of a violation of procedural
due process. The aliens checked the box on the EOIR-26
indicating they would file a brief. When they received
their transcript, they asked for an extension of the
briefing schedule. They later filed a brief which the
BIA rejected for lateness. The BIA dismissed the appeal
because no brief was filed6, as in the first
permutation, supra. The aliens filed a Motion
for Reconsideration arguing that they did timely file
their brief, which the BIA denied7. The Garcia-Cortez
court concluded:
[W]hen an alien gives detailed reasons to support his
appeal, either in a separate brief or on the Notice
of Appeal itself, summary dismissal under 8 C.F.R. �
1003.1(d)(2)(i)(E) violates the alien�s due process
rights as guaranteed by the Fifth Amendment.... The
federal regulation operates within the bounds of this
constitutional guarantee. The reason why it is permissible
for the BIA to summarily dismiss an appeal for failure
to timely file a brief is that an alien appealing an
order of removal must provide the BIA with adequate
notice of the specific grounds for his appeal. But when
the alien has in fact provide such notice to the BIA,
this justification falls away, and summary dismissal
for failure to timely file a brief violates the aliens
constitutional right to a fair appeal."
Garcia-Cortez , at 753.
The Ninth Circuit construed the regulations as having
a purpose � to apprize the BIA of what the appeal is
about. This can be accomplished in two ways; first,
by being specific about the grounds of the appeal on
Form EOIR-26; or, second, by timely filing a brief.
Thus, the Garcia-Cortez illustrates the principle
when there is a detailed Notice of Appeal and no brief,
even if one is promised, the case can go forward, at
least in the case of an unrepresented alien.
Earlier, in Vargas-Garcia, 287 F.3d 822, the
Ninth Circuit addressed a rather similar case. An alien
filed a notice of appeal pro se. He filled out
Form EOIR-26 arguing that the immigration judge�s decision
was erroneous, reciting specific facts upon which the
immigration judge based his decision. The Vargas-Garcia
concluded that the Notice of Appeal form, which indicated
that a separate written brief is not required8,
was inadequate to inform an alien of the high degree
of specificity the BIA demands in a Notice of Appeal.
The court cited to a Board decision9 requiring
that a Notice of Appeal must makes clear whether any
claimed "impropriety in the decision lies with the immigration
judge's interpretation of the facts or his application
of legal standards; that if there is a question of law,
authority should be included, and where the dispute
is on the facts, there should be a discussion of the
particular details contested and where eligibility for
discretionary relief is at issue, the notice should
indicate whether the error relates to grounds of statutory
eligibility or to the exercise of discretion, which
the Court construed as an actual requirement for "...a
true legal brief complete with reference to authorities
- statutes, regulations, cases, etc." and that
a brief may be essential in an appeal in some cases."
Vargas-Garcia v. INS, 287 F.3d at 885. Because
of this inadequacy, the Vargas-Garcia court concluded
that the process deprives aliens of due process because
the form does not explain that not filing a brief is
an extremely perilous practice, but rather, because
of the small area given over to writing the issues upon
review and the statement about not needing to write
a brief, gives the impression that a brief is not necessary.
While the case does not specifically address this issue,
it seems to be an example of the second permutation,
supra, where there is a Notice of Appeal with
specificity and indication that no brief would be filed,
and then no brief filed. The case also dealt with an
unrepresented appellant.
Thus, Garcia-Cortez and Vargas-Garcia
stand for the proposition that whether or not an appellant
indicates that he will provide a brief, if the notice
of appeal is specific enough, the constitutional guarantee
of due process provides that an alien�s case cannot
be dismissed for failure to file a brief, at least in
the case of pro se litigants.
In another case, the Court addressed the fourth permutation,
a Notice of Appeal with inadequate specificity, indicating
that no brief would be filed, and then no brief was
filed. In that case, Padilla-Agustin v. INS,
21 F.3d 970 (9th Cir. 1994), the Ninth Circuit
concluded that an unrepresented alien�s right to due
process was violated by the summary dismissal regulations
because the EOIR 26 was inadequate to alert the alien
of the perils of filing an unspecific Notice of Appeal
and no brief. The basis for the holding, like in Garcia-Cortez
and Vargas-Garcia was the deficiencies of Form
EOIR-26 led to ambiguity regarding the consequences
of a lack of specificity on the Notice of Appeal and
not filing a brief of a constitutional dimension.
Yet another permutation is addressed in a rather recent
case, Singh v. Gonzales, 416 F.3d 1006 (9th Cir.
2005), decided on July 29, 2005. This case addresses
the third permutation, when an alien files a Notice
of Appeal lacking adequate specificity, indicates he
will file a brief and then files no brief. In this case,
the alien was represented. Singh�s first attorney filed
a woefully unspecific notice of appeal, writing merely,
"IJ erred in finding respondent was not credible
and failed to carry his burden," and indicated
he would file a brief, but did not. The BIA dismissed
the appeal because no brief was filed when the appellant
indicated he would filed one or explain why not, pursuant
to the present 8 C.F.R. � 3.1(d)(2)(i)(E), and because
the notice of appeal lacked specificity. 8 C.F.R. �
3.1(d)(2)(i)(A).
Mr. Singh retained new, more effective counsel and
filed a motion to reopen, alleging a due process violation.
Though the Singh court did not explain the contours
of the due process violation allegation in the decision,
the claim seems based on whether the EOIR-26 is explicit
enough about the sanction of dismissal for failing to
be specific. Mr. Singh also alleged ineffective assistance
of counsel. The BIA denied the motion to reopen because
it was untimely � outside of the ninety day period allowed
for motions to reopen at 8 C.F.R. � 1003.2(c)(2) � ignoring
that ineffective assistance can toll the ninety-day
filing period in the Ninth Circuit10.
The Singh court concluded that because the
alien was represented by counsel, arguments about the
inadequacy of warning on Form EOIR-26, arguments that
controlled in Vargas-Garcia, Garcia-Cortez,
Padilla-Agustin, as well as several other cases,
did not control in this case. Because in Singh,
the alien was represented, the failure to be specific
in the Notice of Appeal and the failure to file a brief
after indicating that one would be filed cannot be attributed
to confusion about the meaning of the regulations amounting
to a due process violation. Instead, the failure was
because of attorney error and oversight. The Court concluded,
"...facts such as those alleged by Singh give rise,
not to a claim that the BIA's summary dismissal procedures
denied the petitioner due process, but instead to a
claim that he was denied effective assistance by his
counsel. Accordingly, we hold that Singh has failed
to demonstrate a due process violation as a result of
the BIA's specificity sanction." Singh,
416 F.3d at 1014.
Similarly, the Singh court held that there
was no due process violation based on the regulation
permitting dismissal for failure to file a brief. The
Court wrote:
After the BIA mailed a briefing schedule specifying
the time frame in which Singh's former counsel was required
to file his promised brief, counsel similarly had a
responsibility either to file the brief, to request
an extension, or to at least explain his failure. Counsel's
failure to take any action whatsoever for nearly a year
justified the BIA's summary dismissal. The dismissal
did not infringe upon Singh's due process rights any
more than a dismissal for failure to prosecute infringes
upon the due process rights of a counseled litigant."
Singh, 416 F.3d [pagination unavailable].
Finding no due process violations by virtue of the
regulations11, the Singh court remanded the
case to the BIA to consider the ineffective assistance
of former counsel in light of the fact that ineffective
assistance tolls the time constraints for motions to
reopen.
PRACTICE GUIDELINES FROM THE CASES.
While not definitive, some practice guidelines can
be drawn from these cases. Specificity in the Notice
of Appeal is an excellent prophylactic against premature
against rejection of an appeal. While the Ninth Circuit
found that a lack of specificity in a Notice of Appeal
did not doom the appeal in Padilla-Agustin, it did not
reiterate that same holding in Singh. While a difference
was that the appellant in Singh had an attorney, the
Singh court went to great lengths to show how much more
improved the EOIR-26 has become since Padilla-Agustin.
Eventually, it could happen that he EOIR-26 will have
enough admonitions and caveats about specificity and
other indicia on the form will become less and less
ambiguous about the need for specificity that the Ninth
Circuit will conclude that dismissing an appeal for
failing to be specific on the Notice of Appeal will
not violate due process. But for the fact that the alien
in Singh was represented, this well could have been
the outcome in Singh.
Another observation is that because the regulations
and case law about the degree of specificity needed
on a Notice of Appeal are so detailed and because the
warnings about specificity are becoming clearer, and
contradictory indicia fewer, if one says he is going
to write a brief and does not write one, eventually
the courts will conclude that failure to write a brief
is enough of a basis to dismiss an appeal. Interestingly,
the Singh court also found the regulation and
the EOIR-26 quite clear in that regard.
Writing a specific Notice of Appeal and then indicating
that one is not writing a brief is not a good idea.
While this may insulate against the specter of being
hit by lightening and missing the briefing deadline,
it also precludes receiving a transcript. A transcript
aids in identifying issues for review and allows the
brief writer to give specific references in the transcript
to errors of the immigration court. When the attorney
who is representing an alien on appeal is the same one
who represented him in court, it may be possible to
write an appeal without benefit of a transcript, particularly
when the appeal is of a discrete legal issue not bound
up in facts. When the attorney is new to the case on
appeal, however, indicating that no brief will be provided
means the attorney will not have a transcript. The attorney
will be forced to rely on what the client says happened,
or if the alien had former counsel, what former counsel
said happened. This is a poor strategy. Clients often
have little idea what their cases were about and former
counsel�s explanations of what the case is about and
what happened in immigration court are less illuminating
than simply reading a transcript.
Finally, because of the dichotomy in Singh
between aliens with or without counsel, if the alien
wants to do the appeal himself or herself (most likely
for financial reasons), the alien would be better off
providing a Notice of Appeal with specificity and indicating
that he will not be providing a brief rather than providing
a Notice of Appeal, with or without specificity, with
the future promise of a brief (unless he is sure he
will provide one in the future). The reason for this
conclusion is that one day the EOIR-26's lay-out and
warnings will be found to conform with the regulations,
thus eliminating the due process problem. When that
happens, the regulation about dismissing for failure
to file a brief will be found adequate. At that point,
the BIA will be able to dismiss an appeal simply for
failure to write a promised brief.
In Vargas-Garcia v. INS, 287 F.3d at 886, the
Ninth Circuit suggested a practical solution to the
issue of summary dismissal for lack of specificity on
the Notice of Appeal and failure to file a brief:
If the BIA continues to hold out the "benefit" of its
no-brief-required rule, it would surely ameliorate the
problems we have seen if the BIA gave notice to aliens
who have not come up to snuff, rather than briskly issuing
summary dismissals. That might well be a much better
apotropaion than the BIA's past tinkering with EOIR-26
has proven to be.
The BIA has chosen the path of continued tinkering,
and Singh gives a strong indication that one
day the Ninth Circuit will conclude that the BIA has
gotten it right-enough. When that happens, the Ninth
Circuit will allow the BIA to dismiss appeals simply
for lack of specificity in a Notice of Appeal or for
failure to write a brief after indicating that one would
be written.
CONCLUSION
The Ninth Circuit Court of Appeals has heretofore
been willing to find the BIA�s regulations about summary
dismissal of appeals for failure to be specific about
the issues on appeal and for failing to write a promised
brief unconstitutional because of deficiencies in warning
about this harsh consequence. This willingness does
not extend to represented aliens. The future portends
that the courts will find the warnings adequate for
constitutional purposes and these regulations will be
permitted to exert their full force. Thus prudence requires
a detailed Notice of Appeal and the filing of a brief,
particularly, when you say you will write one.
1. 8 C.F.R. � 1003.38.
2. 8 C.F.R.� 1003.3(a) Filing -- (1) Appeal from decision
of an immigration judge. A party affected by a decision
of an immigration judge which may be appealed to the
Board under this chapter shall be given notice of the
opportunity for filing an appeal. An appeal from a decision
of an immigration judge shall be taken by filing a Notice
of Appeal from a Decision of an Immigration Judge (Form
EOIR-26) directly with the Board, within the time specified
in � 1003.38. The appealing parties are only those parties
who are covered by the decision of an immigration judge
and who are specifically named on the Notice of Appeal.
The appeal must reflect proof of service of a copy of
the appeal and all attachments on the opposing party.
An appeal is not properly filed unless it is received
at the Board, along with all required documents, fees
or fee waiver requests, and proof of service, within
the time specified in the governing sections of this
chapter. A Notice of Appeal may not be filed by any
party who has waived appeal pursuant to � 1003.39.
3. 8 C.F.R. � 1003.3(a)(3) General requirements for
all appeals. The appeal must be accompanied by a check,
money order, or fee waiver request in satisfaction of
the fee requirements of � 1003.8. If the respondent
or applicant is represented, a Notice of Entry of Appearance
as Attorney or Representative Before the Board (Form
EOIR-27) must be filed with the Notice of Appeal. The
appeal and all attachments must be in English or accompanied
by a certified English translation.
(b) Statement of the basis of appeal. The party taking
the appeal must identify the reasons for the appeal
in the Notice of Appeal (Form EOIR-26 or Form EOIR-29)
or in any attachments thereto, in order to avoid summary
dismissal pursuant to � 1003.1(d)(2)(i). The statement
must specifically identify the findings of fact, the
conclusions of law, or both, that are being challenged.
If a question of law is presented, supporting authority
must be cited. If the dispute is over the findings of
fact, the specific facts contested must be identified.
Where the appeal concerns discretionary relief, the
appellant must state whether the alleged error relates
to statutory grounds of eligibility or to the exercise
of discretion and must identify the specific factual
and legal finding or findings that are being challenged.
The appellant must also indicate in the Notice of Appeal
(Form EOIR-26 or Form EOIR-29) whether he or she desires
oral argument before the Board and whether he or she
will be filing a separate written brief or statement
in support of the appeal. An appellant who asserts that
the appeal may warrant review by a three-member panel
under the standards of � 1003.1(e)(6) may identify in
the Notice of Appeal the specific factual or legal basis
for that contention.
4. 8 C.F.R. � 1003.1(d)(2) Summary dismissal of appeals
-- (i) Standards. A single Board member or panel may
summarily dismiss any appeal or portion of any appeal
in any case in which:
(A) The party concerned fails to specify the reasons
for the appeal on Form EOIR-26 or Form EOIR-29 (Notices
of Appeal) or other document filed therewith;
(B) The only reason for the appeal specified by the
party concerned involves a finding of fact or a conclusion
of law that was conceded by that party at a prior proceeding;
(C) The appeal is from an order that granted the party
concerned the relief that had been requested;
(D) The Board is satisfied, from a review of the record,
that the appeal is filed for an improper purpose, such
as to cause unnecessary delay, or that the appeal lacks
an arguable basis in fact or in law unless the Board
determines that it is supported by a good faith argument
for extension, modification, or reversal of existing
law;
(E) The party concerned indicates on Form EOIR-26 or
Form EOIR-29 that he or she will file a brief or statement
in support of the appeal and, thereafter, does not file
such brief or statement, or reasonably explain his or
her failure to do so, within the time set for filing;
(F) The appeal does not fall within the Board's jurisdiction,
or lies with the Immigration Judge rather than the Board;
(G) The appeal is untimely, or barred by an affirmative
waiver of the right of appeal that is clear on the record;
or
(H) The appeal fails to meet essential statutory or
regulatory requirements or is expressly excluded by
statute or regulation.
(ii) Action by the Board. The Board's case management
screening plan shall promptly identify cases that are
subject to summary dismissal pursuant to this paragraph.
An order dismissing any appeal pursuant to this paragraph
(d)(2) shall constitute the final decision of the Board.
(iii) Disciplinary consequences. The filing by an attorney
or representative accredited under � 1292.2(d) of this
chapter of an appeal that is summarily dismissed under
paragraph (d)(2)(i) of this section may constitute frivolous
behavior under � 1003.102(j). Summary dismissal of an
appeal under paragraph (d)(2)(i) of this section does
not limit the other grounds and procedures for disciplinary
action against attorneys or representatives.
5. It is should not relevant in this permutation whether
an alien says he will or will not file a brief and then
files one, though if he says he will not, he will not
receive a transcript and the quality of the brief may
suffer as a consequence as will be discussed further,
infra. Further, if the alien files a Notice of
Appeal lacking specificity and indicates that he will
not file a brief, he risks dismissal under 8 C.F.R.
� 1003.1(d)(2)(i)(E). A trivial permutation is a Notice
of Appeal with specificity and a brief, which obviously
passes muster under any reading of the regulations and
the Constitution.
6. The BIA rejected the brief on September 29, 1998,
and denied the appeal on March 25, 2002. What necessitates
the BIA to so strictly adhere to its brief-filing deadlines,
returning a brief it alleged was 40 days late when it
did not address the case until three and a half years
later (1273 days), is beyond the scope of this article
and perhaps beyond reason.
7. The BIA also added that "...upon review of
the record, we are not persuaded that the Immigration
Judge�s ultimate resolution of the case was in error."
Garcia-Cortez , at 751. The Garcia-Cortez
court held that this language "did not constitute
an adoption of the IJ�s decision, but amounted to a
dismissal on purely procedural grounds." Garcia-Cortez
, at 752. Thus, the Court of Appeals held that the BIA
had not reviewed the case on the merits.
8. The regulation under consideration stated that if
you indicate you will file a brief but fail to file
one, this can itself lead to summary dismissal. By 2004
and the Garcia-Cortez decision, the regulation
was modified to state that a case can be dismissed if
an alien indicates that he will file a brief, but does
not file such brief or statement, or reasonably explain
his or her failure to do so, within the time set for
filing. The Garcia-Cortez Court did not discuss
the regulation when finding that dismissing an appeal
without notice to the alien when the notice of appeal
was specific violates due process.
9. Matter of Valencia, 19 I. & N. Dec. 354,
355 (BIA 1986).
10. See, inter alia, Singh v. Ashcroft,
367 F.3d 1182 (9th Cir. 2004) ( a different
Mr. Singh).
11. While the Singh court is clear that it did
not find the summary dismissal regulations unconstitutional
under the due process clause when an alien is represented,
the court�s creating a strict dichotomy between "due
process violations" and "ineffective assistance
of counsel" appears inaccurate inasmuch as the
rationale for allowing reopening based on ineffective
assistance of counsel is due process. An alien with
ineffective representation is deprived of a fair hearing,
i.e., procedural due process. As the BIA wrote
in Matter of Anselmo, 20 I. & N. Dec. 25,
31-32 (BIA 1989), cited in, Matter of Assaad,
23, I. & N. Dec. 553 (BIA 2003), "As a result
of this extensive body of law, the principle that aliens
may have a valid claim of ineffective assistance of
counsel if an attorney's actions were so deficient as
to foreclose the fundamental fairness of the proceedings
is settled law in most circuits. We are therefore bound
by this precedent." The due process basis for reopening
a case because of ineffective assistance of counsel
was also made clear in the seminal BIA decision on the
isssue, Matter of Lozada, 19 I. & N. Dec.
637, 638 (9th Cir. 1988), wherein the BIA
wrote, "Any right a respondent in deportation proceedings
may have to counsel is grounded in the fifth amendment
guarantee of due process. Magallanes-Damian v. INS,
783 F.2d 931 (9th Cir. 1986); Paul v. INS, 521
F.2d 194 (5th Cir. 1975). Ineffective assistance of
counsel in a deportation proceeding is a denial of due
process only if the proceeding was so fundamentally
unfair that the alien was prevented from reasonably
presenting his case. Ramirez-Durazo v. INS, 794
F.2d 491 (9th Cir. 1986); Lopez v. INS, 775 F.2d 1015
(9th Cir. 1985); see also Magallanes-Damian
v. INS, supra (alien must show not merely
ineffective assistance of counsel, but assistance which
is so ineffective as to have impinged upon the fundamental
fairness of the hearing in violation of the fifth amendment
due process clause). One must show, moreover, that he
was prejudiced by his representative's performance.
Mohsseni Behbahani v. INS, 796 F.2d 249 (9th
Cir. 1986). See generally Matter of Santos,
Interim Decision 2969 (BIA 1984)." Thus, as a technical
matter, the Singh court found the BIA�s decision
faulty for ignoring a due process violation because
of ineffective assistance of counsel, though not for
faulty regulations.
