Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 884 F.2d 1394 (9th Cir. 1989)

No. 88-7139.

United States Court of Appeals, Ninth Circuit.

Before CHAMBERS and WIGGINS, Circuit Judges, and RUDI M. BREWSTER,**  District Judge.

Petitioner Andres Gutierrez seeks review of the Board of Immigration Appeals' (Board's) orders (1) dismissing his appeal of an Immigration Judge's (IJ) decision finding him deportable and denying his application for asylum, and (2) denying his motion to reopen his appeal.1  We affirm the Board's orders and deny the petition for review.

Gutierrez is a 39-year-old native of El Salvador who entered this country without inspection in 1981. On August 5, 1981, the Immigration and Naturalization Service (INS) instituted deportation proceedings against him by issuing an Order to Show Cause, and ordering him to appear for a deportation hearing on August 13, 1981 (AR 127). Gutierrez requested political asylum and withholding of deportation (AR 129, 134). These requests were referred by an IJ for an advisory opinion to the State Department's Bureau of Rights and Humanitarian Affairs which concluded Gutierrez had failed to establish a well-founded fear of persecution upon his return to El Salvador (AR 196, 133). The IJ came to the same conclusion after a hearing on July 29, 1986, and thus denied the requests for asylum and withholding of deportation, and granted Gutierrez voluntary departure (AR 88-93).2 

1. December 17, 1987 Order Dismissing Appeal of the IJ's Decision

On July 31, 1986, Gutierrez filed through his attorney, Kevin Maynard, a notice of appeal of the IJ's decision to the Board (AR 87). Maynard signed the notice of appeal (Form 1-290A). Gutierrez did not sign the form. In response to the request on the form that he " [b]riefly state reasons for this appeal", counsel typed, "The decision of the IJ denying respondent's application for political asylum and his request for withholding of deportation is not supported by, and contrary to, the evidence" (AR 87). The notice of appeal also stated: "I am submitting a written brief and request 30 days after receipt of the transcript to submit appellate brief wherein additional issues may be raised." On the bottom of the form, counsel filled in blanks provided by the form indicating: "I am filing a separate brief or statement." No such brief or statement was ever submitted to the Board.

A copy of the IJ's decision of July 29, 1986, and a transcript of the testimony of the hearing were sent to Maynard on September 2, 1987, with the notation that he was granted until October 5, 1987, to submit an appellate brief (AR 86). The Board summarily dismissed Gutierrez's appeal on December 17, 1987, pursuant to 8 C.F.R. Sec. 3.1(d) (1-a) (i) for failure to specify sufficiently the basis for the appeal.3 

We affirm the Board's decision. The reasons for the appeal must inform the Board of " 'what aspects of the IJ's decision were allegedly incorrect and why.' " Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir. 1988), (quoting Reyes-Mendoza v. INS, 774 F.2d 1364-65 (9th Cir. 1985)). Here, the statement on the form that the IJ's decision "is not supported by, and contrary to, the evidence [,]" is inadequate to inform the Board what was wrong about the IJ's decision and why. See Matter of Holquin, 13 I & N Dec. 423, 425 (BIA 1969). Gutierrez was given an opportunity to file a brief to explain in this conclusory statement. He failed to do so. Summary dismissal was appropriate.

2. April 2, 1989 Order Denying Motion to Reopen Appeal

On February 29, 1988, Gutierrez filed a motion through his attorney, Scott Pink, to vacate the Board's order dismissing his appeal and to reopen the appeal on the ground that his failure to file a brief was the result of inadvertence and excusable neglect (AR 69).4  The motion stated that respondent "did not receive a transcript of the deportation hearing or any order indicating the due date of the brief" (AR 69). The Board denied the motion to reopen on April 1, 1988, on the ground that Gutierrez failed to establish good cause for not filing a brief and "fail [ed] to establish prima facie eligibility for relief" (AR 3).

Denial of Gutierrez's motion to reopen is reviewed for an abuse of discretion. Aviles-Torres v. INS, 790 F2d 1433, 1435 (9th Cir. 1986). To justify reopening, petitioner "must make a prima facie showing that [he is] eligible for the relief sought, INS v. Jong Ha Wang, 450 U.S. 139, 143-44 n., ... (1981) (per curiam), and ... explain [his] failure to present the evidence in the previous proceeding. 8 C.F.R. Secs. 3.2, 3.8." Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987).

The Board did not abuse its discretion by denying the motion to reopen. First, the record indicates that a copy of the IJ's decision and a transcript of the deportation hearing were mailed to the attorney of record, Maynard, on September 2, 1987 (AR 86). These documents were accompanied by notice that counsel was granted until October 5, 1987, to submit a brief in support of the appeal and that opposing counsel was granted until November 5, 1987, to respond. Although this notice is not accompanied by a certificate of service by mail, we note the notice indicates a copy was sent to the INS and that the government submitted timely its memorandum in opposition to the appeal, even though Gutierrez had filed no brief.

Second, even if Gutierrez did not receive a copy of the IJ's decision and accompanying briefing schedule, his explanation about why no brief was filed after his counsel's office received the government's memorandum in opposition to the appeal is wholly inadequate.5  Gutierrez claims neither he nor his attorneys "could have known when the brief was due or that the brief had not been filed until after the [Board's] December 17 order dismissing the appeal" (Petitioner's Opening Brief at 20). This statement is utterly implausible. Gutierrez acknowledges two months elapsed between the time his counsel's office received the government's memo and the time the office received the notice dismissing Gutierrez's appeal. Why counsel failed to communicate with the Board, the IJ or opposing counsel to determine the status of the case is not explained.

Third, Gutierrez's bare allegation in his motion to reopen that he is eligible for adjustment of status is insufficient to make a prima facie showing that he is eligible for asylum or withholding of deportation.

The Board did not abuse its discretion by denying Gutierrez's motion to reopen his appeal. The Board's denial of Gutierrez's motion for reopening is affirmed. The petition for review is DENIED.

 ***

MEMORANDUM

 *

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

 **

The Honorable Rudi M. Brewster, United States District Judge for the Southern District of California, sitting by designation

 ***

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 Circuit R. 36-3

 1

Contrary to the government's contention, the petition for review filed in this court makes clear Gutierrez is appealing both orders

 2

The record is silent on the reason for the length of the delay between the issuance of the order to show cause and the deportation hearing

 3

The regulations permit the Board to summarily dismiss an appeal where "the party concerned fails to specify the reasons for his appeal on Form I-290A (Notice of Appeal)." 8 C.F.R. Sec. 3.1(d) (1-a) (i)

 4

Pink is a lawyer with the law firm of Marron, Reid and Sheey. Maynard, the lawyer who represented Gutierrez below, left the firm in September 1987, and failed to inform anyone that a brief should be filed on Gutierrez's behalf (AR 71)

 5

Curiously, Gutierrez fails to state in all his supporting papers the exact date the government's memorandum was received