53 F3d 338 Guerrero v. Immigration and Naturalization Service

Maria Concepcion GUERRERO, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-70436.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1995.*
Decided April 28, 1995.

53 F.3d 338
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BROWNING, SNEED, and T.G. NELSON, Circuit Judges.

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1

MEMORANDUM**

2

Maria Concepcion Guerrero, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' ("BIA") summary dismissal of her appeal from the immigration judge's ("IJ") decision finding her deportable and denying her request for voluntary departure. Guerrero also appeals from the BIA's denial of her motion to reopen. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a); see Chu v. INS, 875 F.2d 777, 770-80 (9th Cir.1989). We grant the petition for review.

3

The BIA summarily dismissed Guerrero's appeal because the notice of appeal (form EOIR-26) failed to list the issues she intended to present to the BIA with sufficient specificity, see 8 C.F.R. Sec. 3.1(d)(1-a)(i)(A),1 and because she neither filed a brief on appeal nor an explanation for her failure to do so.

4

In Padilla-Agustin v. INS, this court held that the combination of an inadequate notice of appeal form, combined with "the BIA's strict Notice of Appeal requirements, and the failure to give any advance warning before an appeal is dismissed [violates] the due process rights of an alien." 21 F.3d 970, 977 (9th Cir.1994). Accordingly, because our opinion in Padilla-Agustin calls into question the adequacy of the BIA's summary dismissal procedures, we grant the petition for review. We remand so that the BIA may consider in the first instance whether its summary dismissal of Guerrero's appeal was proper in light of Padilla-Agustin v. INS.2

5

PETITION FOR REVIEW GRANTED.

*

The panel unanimously finds this case suitable for decision 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

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1

Under 8 C.F.R. Sec. 3.1(d)(1-a)(i)(A), the BIA may summarily dismiss any appeal in which "[t]he party concerned fails to specify the reasons for the appeal on [the Notice of Appeal Form] or other document filed therewith."

2

In light of our decision here, we decline to consider at this time the issue of whether the BIA properly denied Guerrero's motion to reopen