Unpublished Disposition, 894 F.2d 409 (9th Cir. 1989)

MEMORANDUM^** 

Flor Linarte Lee, a citizen of Nicaragua, petitions for review of the summary dismissal by the Board of Immigration Appeals ("BIA") of her appeal from an immigration judge's decision to deport her. We affirm.

Lee filed a notice of appeal with the BIA on September 9, 1988. She stated the following three reasons for appeal:

1. The immigration judge erred in denying the appellant's application for Section 212(c) relief. This decision was contrary to the evidence and constituted an abuse of discretion.

2. The immigration judge erred in denying the appellant's applications for Section 208 and 243(h) relief. These decisions were contrary to the evidence and constituted an abuse of discretion.

3. The immigration judge improperly considered that the appellant's prior marriage to a United States citizen may not have been a bona fide marriage and this impermissible factor affected his decision in denying 212(c), 208, and 243(h) relief.

She also stated that she would file a brief within thirty days after receiving a transcript of her hearing. Lee received the hearing transcript on October 25, 1988, but never filed a brief.

The BIA summarily dismissed her appeal on January 26, 1989 pursuant to 8 C.F.R. Sec. 3.1(d) (1-a) (i). The BIA noted that Lee had never filed a brief and explained that Lee's first two grounds for appeal failed to specify factual or legal errors. Although her third reason was more specific, the Board decided that it was meritless because the immigration judge decided to deport Lee because of her convictions for shoplifting, prostitution, forgery and possession with intent to deliver heroin, and not because of the possibility that her marriage may have been a sham.

We have held that summary dismissal is appropriate when individuals fail to inform the BIA of "what aspects of the [immigration judge's] decision were allegedly incorrect and why." Reyes-Mendoza v. Immigration and Naturalization Service, 774 F.2d 1364, 1365 (9th Cir. 1985). Lee's first two grounds for appeal do not identify specific errors of the immigration judge and were properly summarily dismissed by the BIA. Although Lee attempts to explain why the immigration judge erred to this court, her reasons "come too late." Martinez-Zelaya v. Immigration and Naturalization Service, 841 F.2d 294, 296 (9th Cir. 1988). "Our review does not extend to what [Lee] should have argued to the BIA. Instead, our review is confined to the BIA's decision and the bases upon which the BIA relied." Id.

Unlike Lee's first two grounds for appeal, her third ground alleges a specific error and should not be summarily dismissed under 8 C.F.R. Sec. 3.1(d) (1-a) (i). However, the Board can dismiss frivolous claims after reviewing the record pursuant to 8 C.F.R. Sec. 3.1(d) (1-a) (iv). We agree with the BIA that Lee's third reason for appeal is meritless. The record indicates that the immigration judge's decision to deny Lee relief was not based upon the possibility that her marriage may have been a sham. When the immigration judge set forth his reasons for deportation, he did not rely at all upon the questionable validity of Lee's marriage.¹  The decision of the BIA is

AFFIRMED.