Unpublished Disposition, 905 F.2d 1540 (9th Cir. 1990)

MEMORANDUM^** 

Petitioners, Rosa Alba Argueta-Del Sid and Glenda Isabel Argueta Mayorga, petition for review of the Board of Immigration Appeals' ("BIA") summary dismissal of their appeals. They argue that the BIA violated its regulations because the Immigration and Naturalization Service ("INS") did not serve them with transcripts and that they were deprived of an opportunity to file supporting briefs. We deny the petitions for review.

FACTS

Petitioner, Rosa Alba Argueta-Del Sid, is the mother of Glenda Isabel Argueta Mayorga. They are citizens of El Salvador who illegally entered this country. Upon receiving orders to show cause why they should not be deported, they filed applications for asylum and withholding of deportation. Argueta-Del Sid alleged that she supported the Salvadoran government and that her husband and three cousins were killed while fighting guerillas who opposed the government.

An Immigration Judge ("IJ") conducted a consolidated hearing and denied relief. The IJ stated that there must be "some nexus between the relative and her claim for asylum." On June 30, 1987, petitioners filed notices of appeal to the BIA. The stated reasons for the appeal were as follows:

A) The judge erred as a matter of law in finding that the applicant had not met the burden of proof required for 208 [asylum] and 243(h) [suspension of deportation] relief.

B) The findings were not supported by substantial evidence, e.g., nexus between applicant and parties killed for political opposition.

On August 20, 1988, counsel for petitioners filed a G-28 notice of entry of appearance of attorney form, which indicated a change of address.

On October 19, 1988, the Executive Office of Immigration Review sent counsel the oral decision of the IJ and the transcripts. The transmittal letter indicated counsel's new address and granted an extension of time to November 18, 1988, to file supporting briefs. Neither petitioner submitted a brief in support of her appeal.

The BIA filed orders of summary dismissal on January 18, 1989. Dismissal was pursuant to 8 C.F.R. Sec. 3.1(d) (1-a) (i). The order stated that petitioners had, "in no meaningful way identified the basis of the appeal from the decision of the immigration judge." The BIA noted that petitioners represented that they would file separate, written briefs. The BIA then stated:

We note that on October 19, 1988, a copy of the transcript was furnished to counsel, but that no brief or statement was filed within the time provided, and no explanation for this failure has been proffered. Such generalized statements as contained in the Notice of Appeal, without more, utterly fail to enlighten the Board as to the reasons, if any, for the appeal.

This decision was sent to counsel's former address. Both petitioners filed timely petitions for review.

JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction under 8 U.S.C. § 1103. We have jurisdiction under 8 U.S.C. § 1105a. We determine whether a BIA dismissal was "appropriate." Martinez-Zelaya v. INS, 841 F.2d 294, 295 (9th Cir. 1988).

DISCUSSION

Summary dismissal was pursuant to 8 C.F.R. Sec. 3.1(d) (1-a) (i). That regulation states that the BIA "may summarily dismiss any appeal in any case in which (i) the party concerned fails to specify the reasons for his appeal on Form I-290A (Notice of Appeal)." Petitioners contend that extenuating circumstances prevented them from filing supporting briefs. They argue that the transcripts and oral decision of the IJ were sent to the wrong address. Petitioners never raised this excuse before the BIA. See 8 C.F.R. Secs. 3.2, 3.8. Our review is "confined to the BIA's decision and the bases upon which the BIA relied." Martinez-Zelaya, 841 F.2d at 296.

We note that in Escobar-Ramos v. INS, No. 88-7309, slip op. 3399 (9th Cir. Apr. 3, 1990) (per curiam) an excuse raised for the first time on a motion to reconsider a decision on appeal was relied upon, without explanation. We, of course, do not know all of the circumstances of that case, but we do not believe that it was intended to overturn our long-standing rule that we review what was before the BIA, rather than take new evidence ourselves.

Therefore, just as the BIA was limited to considering the reasons set forth on the notices of appeal, so also are we. When petitioners fail to file briefs and the reasons on the notices of appeal do not give the BIA an adequate description of the challenges to the IJ's decision, dismissal is appropriate. Reyes-Mendoza v. INS, 774 F.2d 1364, 1365 (9th Cir. 1985). The BIA has stated that when a question of law is presented, the petitioner should provide supporting authority; and, when a question of fact is presented, the petitioner should discuss the particular details contested. In re Valencia, Int.Dec. 3006, slip op. 1, 2-3 (BIA Feb. 14, 1986).

Petitioners' reasons did not meet that standard. The first reason states that the IJ erred as a matter of law in finding that the petitioners did not meet their burdens of proof, but there is no authority to show how the IJ erred. The second reason states that the findings were not supported by substantial evidence. While this reason identifies one factual circumstance, that circumstance is cited only as an example. Even that circumstance does not show why substantial evidence did not support the IJ's finding of a lack of "nexus between applicant and parties killed for political opposition." Petitioners have not presented adequate bases for review. Therefore, summary dismissal was appropriate.

Of course, nothing we say in this decision is intended to preclude the petitioners from raising this issue before the BIA on a motion to reconsider, nor is this decision intended to express an opinion on the merits of that motion should petitioners decide to make it. 8 C.F.R. Secs. 3.2, 3.8.

DENIED.