Unpublished Disposition, 931 F.2d 60 (9th Cir. 1991)

MEMORANDUM^** 

Jose Francisco Pacheco-Iriarte, a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals' ("BIA") summary dismissal of his appeal for failure to adequately specify the grounds for the appeal pursuant to 8 C.F.R. Sec. 3.1(d) (1-a) (i). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a) and deny the petition for review.

* Background

On September 21, 1988, Pacheco-Iriarte was issued an order to show cause why he should not be deported pursuant to section 241(a) (2) of the Immigration and Naturalization Act ("Act"), 8 U.S.C. § 1251(a) (2), as an alien who entered the United States without inspection.

At his initial deportation hearing, Pacheco-Iriarte conceded deportability but requested asylum and withholding of deportation under sections 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158, 1253. On April 25, 1989, the immigration judge ("IJ"), after holding a hearing, denied Pacheco-Iriarte's application for asylum and withholding of deportation, but granted his request for voluntary departure. Pacheco-Iriarte timely filed a Form I-290A notice of appeal with the BIA in which he stated that the following reason for his appeal:

Respondent is a native and citizen of Honduras. He received military training in the use of explosives and demolition. The anti-government guerrillas came to his job site and demanded his assistance to destroy a bridge. He promised to assist the guerrillas because they told him he would be killed if he refused.

Respondent contends that he has established a reasonable and well-founded fear of future persecution and death and he should be granted political asylum in the reasonable exercise of discretion.

In his notice of appeal, Pacheco-Iriarte also indicated that he would file a supplemental brief. No brief, however, was ever filed. On January 12, 1989, the BIA summarily dismissed Pacheco-Iriarte's appeal finding that he had offered no explanation for his failure to submit a brief and that he "has not alleged any error by the immigration judge [,] has not identified particular factual details at issue [, and] ... has utterly fail [ed] to enlighten the Board as to the reasons, if any, for the appeal." Pacheco-Iriarte timely petitions for review.

II

Standard of Review

"Although we have not clearly articulated the standard for reviewing BIA summary dismissal of appeals under 8 C.F.R. Sec. 3.1(d) (1-a) (1987), we have analyzed whether such summary dismissals are 'appropriate.' " Martinez-Zelaya v. INS, 841 F.2d 294, 295 (9th Cir. 1988) (quoting Reyes-Mendoza v. INS, 774 F.2d 1364, 1365 (9th Cir. 1981)); see also Escobar-Ramos v. INS, No. 88-7309, slip op. 2365, 2375 (9th Cir. Mar. 1, 1991) (ruling on "the appropriateness of the BIA's [summary] dismissal").

III

Analysis

Pursuant to 8 C.F.R. Sec. 3.1(d) (1-a) (i), the BIA may summarily dismiss an appeal where the alien fails to specify the reasons for the appeal in the notice of appeal. We have held that summary dismissal is appropriate when the alien fails to adequately "inform the BIA of what aspects of the IJ's decision were allegedly incorrect and why." Reyes-Mendoza v. INS, 774 F.2d 1364, 1365 (9th Cir. 1981) (citing Matter of Holquin, 13 I & N Dec. 423, 425-26 (BIA 1969)).

Here, Pacheco-Iriarte's notice of appeal is conclusory and does not adequately inform the BIA of the specific grounds for his appeal. The statements in the notice of appeal fail to cite any legal authority or any specific facts surrounding the IJ's alleged errors and in no meaningful way apprise the BIA of the specific legal or factual basis for his appeal. Furthermore, Pacheco-Iriarte failed to file a brief with the BIA despite indicating in his notice of appeal that he would. Thus, based on the information contained in the notice of appeal, the BIA's summary dismissal under 8 C.F.R. Sec. 3.1(d) (1-a) (i) was "appropriate." See Martinez-Zelaya, 841 F.2d at 296; Reyes-Mendoza, 774 F.2d at 1364-65. Moreover, to the extent Pacheco-Iriarte seeks, in his brief to this court, to present the grounds for his appeal to the BIA, his "arguments come too late.... [O]ur review is confined to the BIA's decision and the bases upon which the BIA relied." Martinez-Zelaya, 841 F.2d at 296.

Finally, Pacheco-Iriarte urges this court to remand his case to the BIA for reconsideration in light of recent changes in the immigration regulations. See, e.g., 8 C.F.R. Secs. 208, 302 (1990). The new regulations, however, apply only to applications for asylum and withholding of deportation which are filed on or after October 1, 1990. See 8 C.F.R. Sec. 208.1(a). Applications which were filed prior to that date are not subject to review "except by motion granted in exercise of the discretion by the Board of Immigration Appeals." Id. Thus, Pacheco-Iriarte's proper course of action is to file a motion with the BIA requesting it to reopen his application under the new regulations.

Accordingly, Pacheco-Iriarte's petition for review is denied. We stay the mandate for sixty days, however, to allow Pacheco-Iriarte time to file a motion to reopen with the BIA. If a motion to reopen is filed with the BIA, the mandate will be stayed for such time as is necessary for the disposition of the motion by the BIA. See Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985). Furthermore, within 14 days of the expiration of the sixty-day stay, the parties, either jointly or separately, shall file status reports. If the petitioner fails to comply, the mandate will issue without further notice.

PETITION DENIED.