ARTICLES

The Notice of Appeal to the BIA.
The Crucial First Step in the Appeals Process

by

by Jonathan D. Montag*

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.


*Jonathan D. Montag practices immigration law at The Law Offices of Jonathan D Montag in San Diego, California. He is a graduate of the University of Pennsylvania and the University of San Diego School of Law. He is a past San Diego Chapter Chair, a member of the National Benefit Center Liaison Committee, and is on the Immigration Today Editorial Advisory Board. He was named one of California Lawyer Magazine attorneys of the year for the year 2005.

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.




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