JOS GARCIA-CORTEZ ALICIA CHAVARIN-CARRILLO v. JOHN ASHCROFT, ATTORNEY GENERAL, JOS GARCIA-CORTEZ ALICIA CHAVARIN-CARRILLO v. JOHN ASHCROFT, ATTORNEY GENERAL

Citations: 366 F.3d 749; 2004 U.S. App. LEXIS 8248Docket: 02-70866

Court: Court of Appeals for the Ninth Circuit; April 27, 2004; Federal Appellate Court

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José Garcia-Cortez and Alicia Chavarin-Carrillo petitioned against the Board of Immigration Appeals (BIA) for summarily dismissing their appeal of a removal order due to their failure to timely file a brief. They argued that their Notice of Appeal provided sufficient grounds for their claim, thus the BIA's dismissal was improper. The Ninth Circuit exercised jurisdiction under 8 U.S.C. § 1252 and determined that the BIA should not have dismissed the appeal, as the petitioners had adequately detailed their arguments in the Notice of Appeal. The case was remanded to the BIA for a merits review. 

The petitioners, originally from Mexico, conceded to being removable after entering the U.S. and sought cancellation of removal and voluntary departure. They represented themselves during their hearings, asserting that their removal would cause exceptional hardship to their U.S. citizen children and that they had been in the U.S. for over ten years, a point the immigration judge (IJ) failed to consider adequately. Their Notice of Appeal detailed their belief that the IJ made an error by not acknowledging their evidence and not adequately informing them of procedural requirements, leading to their request for an attorney and further consideration of their case.

Garcia and Chavarin indicated on their Notice of Appeal that they would submit a written brief to support their appeal against an Immigration Judge's (IJ) decision. The Board of Immigration Appeals (BIA) provided them the IJ's decision and hearing transcript on June 27, 1998, setting a deadline of July 29, 1998, for their brief. Upon their request, the BIA granted them an extension until August 19, 1998. However, the petitioners missed this deadline, and the BIA rejected their late submission on September 29, 1998, providing instructions for filing a motion for consideration of the late brief, which they did not pursue. The petitioners claimed they were unaware of the brief's rejection until a summary decision was issued two-and-a-half years later. On March 25, 2002, the BIA summarily dismissed their appeal based on the untimely filing of their brief, stating that failure to file without a reasonable explanation could lead to dismissal. The BIA found no merit in the petitioners' ultimate case resolution and cited compliance with 8 C.F.R. 3.1(d)(2)(i)(D). After the BIA denied their motion for reconsideration due to lack of evidence of timely mailing, the petitioners appealed. The document also references a precedent case, Singh v. Ashcroft, where the BIA's authority to dismiss appeals for untimely briefs was upheld, though distinctions were made between that case and the current situation involving Garcia and Chavarin, particularly regarding the submission of specific reasons and the filing of a motion for reconsideration.

The BIA's statement that it was "not persuaded" by the IJ's decision does not equate to an endorsement of that decision; rather, it indicates a procedural dismissal of Garcia and Chavarin's appeal. Consequently, the review is limited to the appropriateness of the BIA's summary dismissal, not the merits of the IJ's ruling. The BIA is permitted to summarily dismiss appeals from aliens who fail to provide a separate written brief or adequately specify the aspects of the decision being contested. An alien must offer clear guidance to the BIA regarding the contested issues, which can be done through the Notice of Appeal or a separate brief. If detailed reasons for the appeal are provided, a summary dismissal may violate the alien's due process rights under the Fifth Amendment, as due process requires a fair opportunity to present one's case. The BIA's regulation allows for summary dismissal if no adequate notice of appeal grounds is given; however, if such notice is provided, the dismissal is unconstitutional. A Notice of Appeal must specify the alleged errors in the IJ's decision clearly, and while it need not challenge every aspect, it should detail how and why the IJ erred. Vague assertions of abuse of discretion fail to meet the necessary specificity for the BIA's review.

Garcia and Chavarin's Notice of Appeal detailed specific reasons for contesting the Immigration Judge's (IJ) decision. They argued that the IJ improperly discounted a letter from Garcia's former employer, which stated that Garcia had resided in the U.S. since before May 19, 1987, thereby establishing over ten years of physical presence prior to the Notice to Appeal. The IJ dismissed the letter as hearsay and inconsistent with Garcia's testimony, despite its relevance to the physical presence issue, making it a legitimate basis for appeal. 

Additionally, the petitioners claimed due process violations, asserting that the IJ unfairly criticized them for not calling witnesses without informing them of their right to do so. This argument was valid given their lack of legal representation and limited English proficiency, combined with the IJ's abrasive demeanor. The Notice of Appeal fulfilled the Board of Immigration Appeals' (BIA) requirement for specificity, adequately notifying the BIA of the contested issues. Consequently, the petition was granted, and the case was remanded to the BIA for a merits determination. 

To qualify for cancellation of removal, applicants must demonstrate ten years of continuous physical presence, good moral character, no convictions, and that removal would cause exceptional hardship to a qualifying relative. The BIA may dismiss appeals if parties fail to file required briefs or statements without a reasonable explanation. The IJ had informed the petitioners of their rights to examine evidence, present their own, and question witnesses.