53 F3d 341 Vahedi v. United States Immigration and Naturalization Service

Hossein G. VAHEDI; Fatemeh G. Vahedi, aka Fatemeh Hessam, Petitioners,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-70964.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1995.
Decided April 26, 1995.

53 F.3d 341
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

Hossein and Fatemeh Vahedi, natives and citizens of Iran, petition for review of the Board of Immigration Appeals' ("BIA") summary dismissal of their appeal from the immigration judge's ("IJ") decision finding them deportable as charged and denying their application for asylum and withholding of deportation, 8 U.S.C. Secs. 1158(a) and 1253(h). We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a). We grant the petition for review.

3

The BIA summarily dismissed the appeal because the Vahedis' notice of appeal (form EIOR-26) failed to list the issues they intended to present to the BIA with sufficient specificity. See 8 C.F.R. Sec. 3.1(d)(1-a)(i)(A).1

4

In Padilla-Agustin v. INS, this court held that the combination of the "EOIR-26, 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 the Vahedis' appeal complied with the standards set forth in Padilla-Agustin.

5

PETITION GRANTED AND REMANDED.

*

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

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."