Saul Viveros-rodriguez, Petitioner, v. United States Immigration and Naturalization Service, Respondent, 28 F.3d 111 (9th Cir. 1994)

MEMORANDUM^** 

Saul Viveros-Rodriguez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") summary dismissal of his appeal from the immigration judge's ("IJ") decision finding him deportable as charged and denying his application for a waiver of deportation under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We grant the petition for review.

The BIA summarily dismissed the appeal because Viveros-Rodriguez's notice of appeal (form EIOR-26) failed to list the issues he intended to present to the BIA with sufficient specificity, see 8 C.F.R. Sec. 3.1(d) (1-a) (i) (A), and because Viveros-Rodriguez indicated on his notice of appeal that he would file a brief but to do so, see 8 C.F.R. Sec. 3.1(d) (1-a) (i) (E).

In Padilla-Agustin v. INS, this court held that the combination of the "EOIR-26, the BIA's strict notice of appeal requirements, and the failure to give any advance warning before an appeal is dismissed [violates] the due process rights of an alien." 21 F.3d 970, 977 (9th Cir. 1994). Because our opinion in Padilla-Agustin v. INS called into question the adequacy of the BIA's summary dismissal procedures, we grant the petition for review. We remand so that the BIA may consider in the first instance whether its summary dismissal of Viveros-Rodriguez's appeal complied with the standards set forth in Padilla-Agustin v. INS.

PETITION FOR REVIEW GRANTED.