Unpublished Disposition, 855 F.2d 860 (9th Cir. 1986)

MEMORANDUM^** 

Fahmi Michael Bajoa petitions for review of an order of the Board of Immigration Appeals (BIA) summarily dismissing his appeal from a denial of asylum and withholding of deportation. We affirm the dismissal and the grant of voluntary departure, but withhold our mandate for 60 days to allow petitioner to file with the BIA a motion to reopen or reconsider.

FACTS

Petitioner Bajoa is a 30-year old native and citizen of Iraq. On November 2, 1983, he was charged with entering the United States without inspection, in violation of 8 U.S.C. § 1251(a) (2). In April 1984, he retained an attorney, Kerry Yianilos, whom he later replaced with attorney George Siddell. At a deportation hearing on June 25, 1985, Bajoa conceded deportability, but requested asylum and withholding of deportation or, in the alternative, voluntary departure.

The immigration judge (IJ) denied Bajoa asylum and withholding of deportation, but found him statutorily eligible for voluntary departure and granted it. He then granted the request of Bajoa's attorney to withdraw from representing Bajoa.

The next day, Bajoa filed a notice of appeal with the BIA. Despite indicating on the form that he would file a separate brief or statement, Bajoa never did so. On October 22, 1986, sixteen months after the notice of appeal was filed, the BIA summarily dismissed Bajoa's appeal for failure to specify the reasons for the appeal. Bajoa timely petitioned for review by this court.

DISCUSSION

We have jurisdiction to review the BIA's order under 8 U.S.C. § 1105a(a). Because 8 C.F.R. Sec. 3.1(d) (1-a) (i) states that the BIA "may" summarily dismiss an appeal for failure to state reasons, the Board's decision whether to dismiss is discretionary. Dismissal on such grounds is akin to a dismissal in a civil case for failure to prosecute, which we review for abuse of discretion. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Accordingly, we will not reverse a dismissal under 8 C.F.R. Sec. 3.1(d) (1-a) unless the Board has abused its discretion.

To give notice of appeal, petitioner used Form I-290A, which asks appellants to " [b]riefly, state reasons for this appeal." In response, petitioner wrote, "Respondent maintains that his request for grant of political asylum should have been granted." Below, he filled in a blank provided on the form for the purpose by indicating "I AM filing a separate written brief or statement." Since nothing additional was filed, the only reason for appealing in the record before the BIA was that stated on the notice of appeal.

The BIA may summarily dismiss any appeal in which "the party concerned fails to specify the reasons for his appeal." 8 C.F.R. Sec. 3.1(d) (1-a) (i) (1987). In Reyes-Mendoza v. INS, 774 F.2d 1364 (9th Cir. 1985), the petitioner failed to file a separate statement in support of his appeal. The only reason he offered was the statement on his notice of appeal: "Wrongful denial of suspension of deportation." Id. We upheld the Board's summary dismissal under Sec. 3.1(d) (1-a) (i), noting that Reyes' statement was "inadequate to inform the BIA of what aspects of the IJ's decision were allegedly incorrect and why." Id. at 1365.

Bajoa's statement was equally inadequate. He neither specified what was erroneous in the IJ's determination nor explained to the BIA why he had failed to file a brief or statement. Summary dismissal was therefore appropriate, and the Board did not abuse its discretion.

Bajoa argues that Siddell, his attorney at the deportation hearing, abandoned him after the hearing, and that Bajoa was thus denied the effective assistance of counsel.

At the close of the hearing, the IJ asked Siddell to advise Bajoa of the appropriate procedures for filing an appeal to the BIA. Siddell signed a form certifying that notice of appeal had been filed. He then requested to withdraw from representing petitioner. The IJ granted his request. Bajoa filed his notice of appeal the next day.

Despite Siddell's having withdrawn from the case, however, the INS continued to list him as Bajoa's counsel and to correspond with him as such. On August 6, 1986, more than a year after the deportation hearing, the IJ's office sent Siddell a copy of the IJ's decision and the transcript of the hearing before the IJ, and advised him that he had 25 days in which to file an appeal brief. On September 16, the INS filed a one-page brief urging dismissal of the appeal under 8 C.F.R. Sec. 3.1(d) (1-a). Three days later, the IJ's office sent the IJ's decision, the record and the INS's brief to the BIA, together with a cover letter stating that "Briefs have been received from the Service only." A copy of the cover letter was sent to Siddell. On its final order of October 22 dismissing the appeal, the BIA listed Siddell as attorney for Bajoa. After issuing the order, the BIA sent Siddell a copy the same day, stating: "Reference is made to your interest in the above case."

To prove ineffective assistance of counsel, a party must first demonstrate that an attorney-client relationship existed. Committee of Central American Refugees v. INS, 795 F.2d 1434, 1439 (9th Cir. 1986), amended at 807 F.2d 769 (9th Cir. 1986). The record reflects Siddell's withdrawal with leave of the IJ. Nothing suggests any further contact between Siddell and Bajoa. However, correspondence continued from the Service to Siddell despite Siddell's withdrawal of record from representing Bajoa. Of particular importance is the August 6, 1986 letter, in which the INS sent Siddell the transcript of the deportation hearing and advised of the due-date of the brief.

Siddell, as former counsel, certainly, at a minimum, had a duty to put this information into Bajoa's hands or advise the Service that it should do so. It is also possible that Siddell had made a commitment to Bajoa to write the brief or assist in its preparation and that as a result of his failure to do so, Bajoa was deprived of notice and an opportunity to file a timely brief, or, was denied Siddell's promised services in connection with the preparation of the brief. Such conduct could constitute ineffective assistance of counsel. Alternatively, or, additionally, the Service could be at fault for sending notice of the brief's due-date to Siddell rather than directly to Bajoa.

Unfortunately, Bajoa's brief leaves both this court and the Service completely unenlightened as to the facts. He has offered only an argument, without support, that Siddell "abandoned" him in an "abrupt rupturing of legal representation." On this record, we cannot determine whether Bajoa was denied the effective assistance of counsel. While the record suggests that Siddell's continuing role in the case may have prejudiced Bajoa, we simply cannot ascertain from Bajoa's argument whether that is what happened. Nor do we have any way of knowing whether Bajoa had timely notice of the due date of his brief or, if not, whether the Service was at fault. Bajoa has given us no basis upon which to reverse the dismissal.

Bajoa advances two other arguments on appeal: that he was denied due process at his deportation hearing because the IJ failed to provide him with an interpreter; and that the IJ's denial of asylum and withholding was erroneous.

We lack jurisdiction to review these claims. Orders of deportation or exclusion "shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right." 8 U.S.C. § 1105a(c). Because 8 C.F.R. Sec. 3.1(b) (2) concerns a right to appeal the deportation decision of an IJ, an alien must exhaust that remedy before petitioning us for review. Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that issue and deprives this court of jurisdiction. Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir. 1987).

There is an exception to this rule when the unexhausted issue is a due process claim. Since the Board has no jurisdiction to adjudicate constitutional issues, an alien may advance a due process argument for the first time in this court. Id. at 908. However, if the claim involves a procedural error that could be corrected by the administrative tribunal, we will require that the claim be presented to the administrative tribunal in the first instance. Id.

Bajoa's due process claim that he was denied the assistance of an interpreter alleges a procedural error that could have been corrected by the agency. Since Bajoa failed to raise either the interpreter claim or the wrongful denial of asylum claim before the BIA, we are without jurisdiction to review them now.

CONCLUSION

Because Bajoa did not specify the reasons for his appeal, the Board acted within its discretion in denying the appeal. We affirm the dismissal and the grant of 30 days' voluntary departure. It is possible, however, that he had cause for his failure to submit a brief. If Siddell never informed him of the August 6 letter, Bajoa may not have had access to the record or known that the deadline for filing a brief was approaching. He may have been relying on Siddell to file a brief. If, on the other hand, he was acting pro se, he may not have known that a brief was even necessary. The instructions for appeal set forth on the appeal form are confusing in that they state that a brief is not necessary and direct that reasons on the form be brief. The Service may be at fault in not directing notice to Bajoa. In sum, the record is silent as to why he failed to support his appeal with a statement of reasons.

Under 8 C.F.R. Sec. 3.2, upon a proper showing, Bajoa may be entitled to have his claims reviewed by the Board in a motion to reopen or reconsider. To justify such a motion, he would have (1) to make a prima facie showing that he is eligible for the relief sought; and (2) to explain his failure to present these claims in his initial appeal. Aviles-Torres v. INS, 790 F.2d 1433, 1435-36 (9th Cir. 1986). Accordingly, we withhold our mandate for 60 days to give Bajoa an opportunity to file a motion to reopen or reconsider.

AFFIRMED; MANDATE WITHHELD FOR 60 DAYS; VOLUNTARY DEPARTURE CONTINUES FOR THIRTY DAYS AFTER MANDATE ISSUES OR 30 DAYS AFTER FINAL DISPOSITION OF ANY MOTION TO REOPEN, WHICHEVER IS LATER.