Domingo Villalta-gomez, Petitioner, v. Immigration and Naturalization Service, Respondent, 69 F.3d 546 (9th Cir. 1995)

MEMORANDUM^** 

Petitioner Domingo Villalta-Gomez, a native and citizen of Nicaragua, petitions for review of the Board of Immigration Appeals' summary dismissal of his appeal from a deportation order denying him asylum and withholding of deportation. Petitioner argues that the BIA erroneously concluded that his Notice of Appeal was not sufficiently specific and that the dismissal procedures used by the BIA violated his due process rights. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), and we grant the petition for review.

Petitioner's Notice of Appeal contained only "generaliz [ations] and conclusory statement [s] about the proceedings before the IJ," Toquero v. INS, 956 F.2d 193, 195 (9th Cir. 1992), and therefore fell short of the BIA's specificity standard. A petitioner's due process rights may be violated, however, by the "concatenation of EOIR-26, the BIA's strict Notice of Appeal requirements, and the failure to give any advance warning before an appeal is dismissed." Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir. 1994). All three factors are present in the instant case where petitioner used Form EOIR-26, the BIA maintains its strict specificity standard, and the INS did not file "a brief arguing for dismissal based on insufficient specificity, which would have put petitioner on notice of the potential for summary dismissal of his appeal." Castillo-Manzanarez v. INS, No. 94-70606, slip op. 11455, 11462 (9th Cir. Sep. 12, 1995).¹ 

PETITION FOR REVIEW GRANTED.