Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1991)Annotate this Case
Tita Velasco LIM, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 14, 1990.* Decided Jan. 29, 1991.
Before HUG, BEEZER and BRUNETTI, Circuit Judges.
Tita Velasco Lim, a native of the Philippines, petitions for review of the Board of Immigration Appeals' ("BIA") summary dismissal of her appeal from the Immigration Judge's ("IJ") denial of voluntary departure based on her failure to specify sufficiently the basis for her appeal. Lim has conceded deportability, and admitted that she violated her nonimmigrant student status by working without work authorization and by misrepresenting her citizenship to gain employment. We have jurisdiction under 8 U.S.C. § 1105a(a) (1988), and we affirm the BIA's summary dismissal of Lim's appeal of the IJ's denial of voluntary departure.
The BIA has authority to dismiss summarily any appeal which fails to specify the reasons for the appeal in the notice of appeal (form I-290A) to the BIA. 8 C.F.R. Sec. 3.1(d) (1-a) (i) (1990); Reyes-Mendoza v. INS, 774 F.2d 1364, 1365 (9th Cir. 1985). This court analyzes such dismissals for their "appropriateness." See Martinez-Zelaya v. INS, 841 F.2d 294, 295 (9th Cir. 1988). Summary dismissal has been held to be "appropriate if an alien submits no separate written brief or statement to the BIA and inadequately informs the BIA of 'what aspects of the IJ's decision were allegedly incorrect and why.' " Id. at 296 (quoting Reyes-Mendoza, 774 F.2d at 1365). In relevant part, the BIA has specified that the notice of appeal should state
'whether the error relates to grounds of statutory eligibility or to the exercise of discretion ..., whether the alleged impropriety in the decision lies with the [IJ's] interpretation of the facts or his application of legal standards ..., [w]here a question of law is presented, supporting authority should be included, and where the dispute is on the facts, there should be a discussion of the particular details contested.'
Lozada v. INS, 857 F.2d 10, 12 (1st Cir. 1988) (quoting Matter of Valencia, Interim Dec. 3006 (BIA 1986)).
As her reason for her appeal in this case, Lim provided a statement on the BIA notice of appeal form that stated that " [t]he [IJ's] decision was based on a misinterpretation of the Immigration Reform and Control Act of 1986 [IRCA]." Lim also indicated that she did not request oral argument but that she would be filing a separate written brief or statement. Prior to her filing the separate brief or statement, however, Lim requested a transcript of the hearing before the IJ.
Lim never received the requested transcript from the BIA and now contends she was therefore justified in not filing the promised separate brief. Although Lim filed an "Appellate Brief" with the BIA in response to the IJ's order to have the record on appeal forwarded to the BIA without a transcript, this brief fails to further specify her reasons for taking an appeal. Instead, the brief merely provides reasons why a transcript should have been provided.
We conclude that the BIA's summary dismissal of Lim's appeal without providing the requested transcript was appropriate. Lim's one-sentence stated reason for her appeal, in the absence of a supporting statement or brief, is "inadequate to inform the BIA of what aspects of the IJ's decision were allegedly incorrect and why." Reyes-Mendoza, 774 F.2d at 1365. The IJ issued a three-page memorandum of its oral decision denying Lim's request for voluntary departure, and based its decision in part on the fact that Lim had violated the IRCA by working without authorization. Lim's notice of appeal failed, however, to, for example, indicate what portion of the IRCA the IJ purportedly misinterpreted in reaching its decision and why. This deficiency, coupled with Lim's failure to file a supplemental brief or request oral argument, justifies the BIA's summary dismissal of her appeal. See Alleyne v. INS, 879 F.2d 1177, 1185 (3d Cir. 1989) (" ' [s]pecificity [in notice of appeal] is especially important if counsel does not ask for oral argument and files no brief....' ") (quoting 2 C. Gordon and G. Gordon, Immigration Law and Procedure, Sec. 62.10 (1988)); cf. Medrano-Villatoro v. INS, 866 F.2d 132, 133-34 (5th Cir. 1989) (reversing BIA's summary dismissal based on conclusion that petitioner's nine listed reasons for appeal, while not "models of clarity, ... were adequate for purposes of the notice of appeal").
We are additionally unpersuaded that Lim's asserted reasons for failing to file a promised separate brief have merit. Lim argues that a transcript of the proceedings before the IJ was necessary to enable her to properly determine the basis of the IJ's decision. As stated in her notice of appeal to the BIA, however, Lim's appeal involves a challenge to the IJ's interpretation of the IRCA. This interpretation was set forth in the IJ's memorandum decision and presents solely a legal issue. We therefore reject Lim's assertion that a transcript of the proceeding was necessary for specifying the reasons for her appeal.