Summary
The Ninth Circuit held that the BIA may not summarily dismiss an appeal solely due to an attorney's failure to file a brief or inadequate notice of appeal, without first reviewing the record to determine whether the appeal is frivolous or filed for delay under 8 C.F.R. § 3.1(d)(l-a)(iv). The court remanded where petitioners demonstrated exigent circumstances (a law office roof collapse and transcript delays) excusing the failure to file a brief, and where the BIA gave no indication it reviewed the record before dismissing the appeal. Case law topics include BIA summary dismissal standards, attorney misconduct vs. client prejudice, and the requirement of record review for frivolousness findings.
Topics
Practice areas
Questions Presented
- Whether the BIA's summary dismissal was appropriate without reviewing the record as required by 8 C.F.R. § 3.1(d)(l-a)(iv)
- Whether petitioners demonstrated exigent circumstances justifying their failure to file a brief
Holdings
- Summary dismissal of a party's appeal is not an appropriate way of dealing with an improper course of conduct by the party's attorney. The BIA must review the record before dismissing an appeal as frivolous under 8 C.F.R. § 3.1(d)(l-a)(iv).
Key quotations
“We agree with the Fifth Circuit holding in Medrano-Villatoro that summary dismissal of a party’s appeal is not an appropriate way of dealing with an improper course of conduct by the party’s attorney. The BIA is required by 8 C.F.R. § 3.1(d)(l-a)(iv) to base its finding that the appeal is frivolous upon a review of the record.” (696)
“Because there is no indication that such a review took place and because petitioners have demonstrated exigent circumstances that accounted for their failure to file a brief with the BIA, we remand the appeal to the BIA so that it may provide petitioners with an opportunity to file a brief within a reasonable time and then consider the case on its merits.” (696)
Factual background
The BIA summarily dismissed petitioners' appeal because they failed to specify reasons on their notice of appeal, never filed a brief despite promising to do so, and offered no explanation. The BIA concluded this was an abuse of process to delay deportation. Petitioners later explained that they received over thirty transcripts in a two-month period and that a roof leak in their counsel's office caused disruption. The BIA did not indicate it reviewed the record before dismissing.
Procedural history
The Board of Immigration Appeals summarily dismissed petitioners' appeal from an Immigration Judge's decision finding them deportable and denying asylum. This court initially denied the petition for review. Petitioners now seek rehearing, offering explanations for their failure to file a brief and arguing the BIA did not review the record before dismissing.
Remand instructions
Remand to the BIA to provide petitioners an opportunity to file a brief within a reasonable time and then consider the case on its merits.