Unpublished Disposition, 867 F.2d 612 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 612 (9th Cir. 1988)

Myrna CHUA, Petitioner,v.UNITED STATES DEPARTMENT OF IMMIGRATION AND NATURALIZATION,Respondent.

No. 88-7203.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 26, 1989.Decided Jan. 30, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Myrna Chua (Chua) petitions for review of the Board of Immigration Appeals' (BIA) dismissal of her appeal as frivolous. Chua contends that the BIA erred in (1) summarily dismissing her appeal as frivolous, and (2) terminating her voluntary departure status, thereby penalizing her for exercising her appeal rights.

The petition is granted in part. We uphold the BIA's dismissal of Chua's appeal as frivolous. See 8 C.F.R. Sec. 3.1(d) (1-a) (iv); Martinez-Zelaya v. INS, 841 F.2d 294, 295-96 (9th Cir. 1988); we reverse the BIA's termination of Chua's voluntary departure status. Its decision penalized Chua for exercising her appellate rights. See Contreras-Aragon v. INS, 852 F.2d 1083, 1094-96 (9th Cir. 1988).

FACTS

Myrna Chua (Chua), a native and citizen of the Philippines, entered the United States as a non-immigrant visitor on April 7, 1985, and was permitted to remain in the United States until October 5, 1985. On June 17, 1986, the Immigration and Naturalization Service (INS) issued an order to show cause why Chua should not be deported because she had remained in the United States for a longer time than permitted. On August 8, 1986, the Immigration Judge (IJ) granted Chua's request for a continuance of the deportation hearing. At her deportation hearing on September 18, 1986, Chua requested (1) a second continuance of her deportation proceeding because her counsel had been unable to obtain documentation from the INS and her prior counsel and (2) alternatively, voluntary departure to the Philippines. The IJ denied her request for a continuance, ruled that she was deportable and granted her request for voluntary departure.

On September 22, 1986, Chua timely appealed the IJ's decision to the Board of Immigration Appeals (BIA) and attached the trial brief previously submitted to the IJ as the reasons for her appeal. The BIA dismissed Chua's appeal in a decision dated April 28, 1988 on the ground that Chua's appeal was frivolous. Chua timely appeals.

Chua contends the BIA erred in dismissing her appeal as frivolous because her motion for a continuance was not based on good cause. This contention lacks merit.

The BIA may " [s]ummarily dismiss any appeal in any case in which the.... (iv) Board is satisfied, from a review of the record, that the appeal is frivolous or filed solely for the purpose of delay." 8 C.F.R. Sec. 3.1(d) (1-a) (iv). This court has held that summary dismissal by the BIA is appropriate if an alien submits no separate written brief or statement to the BIA explaining the alien's contentions. Martinez-Zelaya v. INS, 841 F.2d 294, 295-96 (9th Cir. 1988).

Here, Chua included the trial brief previously submitted to the IJ to specify the reasons for the appeal in her notice of appeal to the BIA. The trial brief did not explain Chua's contentions on appeal and merely indicated that she disagreed with the IJ's ruling. Because Chua did not submit a sufficient amount of information explaining the basis of her appeal to the BIA, the BIA's summary dismissal was "appropriate." Martinez-Zelaya, 841 F.2d at 296.

Chua contends that the BIA erred in terminating her voluntary departure status. This contention has merit.

The discretionary award of voluntary departure is significant because it (1) allows the alien to avoid the stigma of compulsory ejection, (2) permits the alien to select his or her destination and (3) facilitates the possibility of return to the United States. Contreras-Aragon v. INS, 852 F.2d 1088, 1090 (9th Cir. 1988). The Attorney General has discretion to award voluntary departure to aliens who are engaged in deportation proceedings. 8 U.S.C. § 1254(e); Contreras-Aragon, 852 F.2d at 1094. The delegation and implementation of this authority allowing the IJ or BIA to grant voluntary departure is provided in 8 C.F.R. Secs. 242.17(b), 244.1, and 244.2 (1987). Contreras-Aragon, 852 F.2d at 1094. The timely appeal of the IJ's decision to the BIA tolls the running of the voluntary departure period. Id. The BIA may not force an alien to abandon the possibility of voluntary departure in order to seek review of the BIA's decision. Id. at 1095. This would improperly penalize an alien for exercising her appeal rights. Id.1 

Here, Chua timely appealed to the BIA during the period of her voluntary departure status. Approximately seven months elapsed from the filing of Chua's appeal until the BIA's dismissal. Chua's original time for voluntary departure had expired by the time the BIA decided her case on appeal, and the BIA terminated Chua's voluntary departure status.

The BIA's termination of an appellant's ability to choose voluntary departure improperly places an alien in the dilemma of choosing between the right to an administrative appeal and the grant of voluntary departure. Conteras-Aragon, 852 F.2d at 1094-95. This is contrary to our holding in Contreras-Aragon. Id. Accordingly, the BIA erred in terminating Chua's voluntary departure. See id.

The petition is GRANTED in part. We REMAND for reinstatement of voluntary departure.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Even if Chua's appeal to the BIA is frivolous, the BIA may not terminate the privilege of voluntary departure as a sanction for a frivolous appeal. Contreras-Aragon, 852 F.2d at 1095 n. 3, 1096