Kokar, Anju v. Gonzales, Alberto R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4641
ANJU KOKAR,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A74-297-991
____________
SUBMITTED OCTOBER 16, 2006—DECIDED MARCH 1, 2007
____________
Before POSNER, RIPPLE and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Anju Kokar was taken into cus-
tody by the Department of Homeland Security (“DHS”)
after overstaying her visitor’s visa. Her applications for
asylum, withholding of removal and relief under the
Convention Against Torture were denied by an Immigra-
tion Judge (“IJ”). Ms. Kokar filed an appeal with the
Board of Immigration Appeals (“BIA”), which summarily
affirmed the IJ’s decision. Ms. Kokar then sought further
review in this court. For the reasons set forth in this
opinion, we now affirm the decision of the Board and
deny the petition for review.
2 No. 05-4641
I
BACKGROUND
A. Facts
Ms. Kokar1 is a native of Bangkok, Thailand. In July
2001, she was admitted to the United States on a visitor’s
visa bearing a false name.
Prior to Ms. Kokar’s coming to the United States, her
mother had borrowed a large sum of money from loan
sharks to pay for medical treatment for Ms. Kokar’s step-
father. The family encountered difficulties repaying the
debt, and Ms. Kokar explored the possibility of coming
to the United States to earn the necessary funds. She ob-
tained a passport from a broker; at the time she purchased
the passport, the broker informed Ms. Kokar that she
would have to work in the United States to repay the
cost of the passport. Ms. Kokar believed that the cost of
the passport was approximately $6,000.
Upon arrival in the United States, Ms. Kokar was in-
formed that she owed $45,000 for her passport and travel
costs and that she would have to work as a prostitute to
repay these costs. She worked in several different cities
until she was apprehended by the DHS in Houston,
Texas. When Ms. Kokar was taken into custody, she was
traveling to New York to make a payment towards her
$45,000 “debt.”
Since the time of her arrest, Ms. Kokar has been em-
ployed at a restaurant in Chicago, Illinois, which is owned
1
Anju Kokar is the name that appeared on the false passport.
The petitioner’s real name is Chalanthorn Malakul. For consis-
tency, however, we shall refer to the petitioner by the name
that appeared on the visa.
No. 05-4641 3
by her boyfriend’s mother. She has been sending approxi-
mately $300 per month back to Thailand. She does not
know how much of these funds have been used to pay off
the original loan and how much of these funds simply
have been used by her mother and step-father for living
expenses. At her removal proceeding, Ms. Kokar testified
that “[s]he is afraid of [the loan sharks] and what they
might do” if she were returned to Thailand.2 She also
stated that she did not believe that the Thai police would
assist her if she encountered problems with the loan
sharks.
B. Administrative Proceedings
In her initial removal hearing, Ms. Kokar admitted that
she had entered the country illegally, but sought asylum,
withholding of removal and relief under the Convention
Against Torture.3 The IJ found that Ms. Kokar had testi-
fied credibly to the above facts. However, the IJ denied
relief because Ms. Kokar had failed to establish that she
was a member of “a particular social group which would
be cognizable under the Immigration and Nationality Act,”
2
Petitioner’s Br. at 5.
3
Initially, Ms. Kokar’s counsel indicated that she would be
seeking protection under the Victims of Trafficking and Violence
Protection Act of 2000. Because “T-visas” are outside of the IJ’s
area of responsibility, the IJ rescheduled Ms. Kokar’s removal
hearing to allow her an opportunity to seek this relief. At the
time of the rescheduled hearing, Ms. Kokar had not obtained
this relief, and Ms. Kokar’s attorney expressed doubt both as
to whether this type of relief would be available to Ms. Kokar
and as to how he should proceed with this application.
4 No. 05-4641
specifically “disadvantaged women who are taken ad-
vantage of by the system in Thailand or by ‘loan sharks.’ ”
A.R.21. Furthermore, the IJ determined that “she ha[d] not
established that there exists a reasonable possibility of
persecution on account of the group characteristics.” Id. at
22. Additionally, the IJ found that Ms. Kokar’s subjec-
tive fear of mistreatment at the hands of loan sharks was
not objectively reasonable given that neither her mother,
nor her other relatives, had been harmed or forced into
prostitution as a result of the debt owed. Finally, the
IJ denied Ms. Kokar’s claims because she failed to estab-
lish that the government of Thailand would be unwilling
or unable to protect her if she was threatened by the loan
sharks.4
On November 9, 2004, Ms. Kokar’s attorney filed a
notice of appeal with the BIA. The notice of appeal in-
structed that the appellant “[s]tate in detail the reason(s)
for this appeal.” A.R.8. The notice also contained the
following highlighted warning:
!WARNING: You must clearly explain the specific
facts and law on which you base your appeal of the
Immigration Judge’s decision. The Board may sum-
marily dismiss your appeal if it cannot tell from this
Notice of Appeal, or any statements attached to the
Notice of Appeal, why you are appealing.
Id. The stated basis for Ms. Kokar’s appeal was: “While
finding Respondent’s testimony to be credible, IJ erred in
4
Because Ms. Kokar did not meet the criteria for asylum, the
IJ also determined that Ms. Kokar did not meet the more
stringent requirements for withholding of removal or protec-
tion under the Convention Against Torture.
No. 05-4641 5
denying her asylum by refusing to recognize her as a
member of the protected social group of ‘victims of
women traffiking [sic] for prostitution[]’ under the U.S.
asylum laws.” Id.
On the same page of the notice, the form asked the
appellant: “Do you intend to file a separate written brief
or statement after filing this Notice of Appeal?” Id. Im-
mediately beneath this question was another warning:
!WARNING: If you mark “Yes” in item #8, you will
be expected to file a written brief or statement after
you receive the briefing schedule from the Board. The
Board may summarily dismiss your appeal if you do
not file a brief or statement within the time set in the
briefing schedule.
Id.
The Board later sent the parties a briefing schedule
dated July 26, 2005. The briefing schedule again warned
Ms. Kokar that, if she failed to file a brief or statement
within the time set by the briefing schedule, the appeal
could be dismissed.5 However, no brief was filed on behalf
of Ms. Kokar, nor did Ms. Kokar or her attorney submit
a statement explaining their failure to do so.
5
Specifically, the notice of briefing schedule stated:
WARNING: If you indicated on the Notice of Appeal (Form
EOIR-26) that you will file a brief or statement, you are
expected to file a brief or statement in support of your
appeal. If you fail to file the brief or statement within
the time set for filing in this briefing schedule, the Board
may summarily dismiss your appeal. See 8 C.F.R.
§ 1003.1(d)(2)(i)(E).
A.R.3.
6 No. 05-4641
The BIA summarily dismissed Ms. Kokar’s appeal on
November 30, 2005. In its opinion, the Board recounted
that Ms. Kokar had checked the box indicating a sepa-
rate brief or statement would be filed. “However,” the
Board continued, “the record indicates that the appel-
lant did not file such brief or statement, or reasonably
explain the failure to do so, within the time set for filing.
Accordingly, the appeal is summarily dismissed under
the provisions of 8 C.F.R. § 1003.1(d)(2)(i)(E).” A.R.2.
Ms. Kokar timely sought review in this court.
II
ANALYSIS
A.
This court has not determined the standard of review
which should be applied to summary dismissals by the
BIA. Ms. Kokar points to Awe v. Ashcroft, 324 F.3d 509 (7th
Cir. 2003), for the proposition that “[t]his Court should
review the summary dismissal to determine whether it
is appropriate.” Petitioner’s Br. at 7. In Awe, this court
observed that “[w]e do not see anything in the record
here to suggest that the BIA inappropriately exercised its
power in summarily dismissing Awe’s appeal under
§ 3.1(d)(2)(i)(D),[6] and we therefore affirm its decision on
these grounds.” 324 F.3d at 513; see also Garcia-Cortez v.
Ashcroft, 366 F.3d 749, 751 (9th Cir. 2004) (reviewing
summary dismissal for appropriateness). However, there
is no discussion in the court’s opinion regarding stand-
6
The regulation subsequently has been renumbered as 8 C.F.R.
§ 1003.1(d)(2)(i).
No. 05-4641 7
ard of review, nor is there any indication that the court
meant for this statement to establish the standard to be
applied.
The Government acknowledges the language in Awe, but
correctly notes that Awe “did not expressly articulate” a
standard of review. Respondent’s Br. at 13. It urges this
court to adopt the abuse of discretion standard employed
by the Fifth Circuit in Rioja v. Ashcroft, 317 F.3d 514,
515 (5th Cir. 2003), and more recently adopted by the
Eleventh Circuit in Esponda v. United States Attorney Gen-
eral, 453 F.3d 1319, 1321 (11th Cir. 2006). In Esponda, the
court explained that “[b]ecause the regulation at issue here,
8 C.F.R. § 1003.1(d)(2)(i)(E), indicates that the BIA ‘may’
summarily dismiss an appeal, it vests discretion in the
BIA. Thus, we review the BIA’s application of the regula-
tion to summarily dismiss the Espondas’ appeal for
abuse of discretion.” Id. at 1321.
The present appeal, however, does not require us to
resolve the standard of review question because we
perceive no error or abuse of discretion in the BIA’s
dismissal of Ms. Kokar’s administrative appeal.
B.
1. This Court’s Earlier Precedent
This court previously has addressed the BIA’s dismissal
of “procedurally defective” appeals. Awe, 324 F.3d at 512;
see also Stroe v. INS, 256 F.3d 498, 499 (7th Cir. 2001). In
Stroe, the petitioners, who were represented by counsel,
appealed an adverse asylum decision to the BIA. Petition-
ers’ counsel received an initial thirty-day extension to file
a brief; however, counsel failed to file a brief on behalf
8 No. 05-4641
of the petitioners until three months after the extended
deadline. Prior to the BIA’s receipt of the brief, it had
dismissed the appeal on the ground that a brief had
not been filed. Before this court, the petitioners argued
that the Board had denied them “due process of law
when it dismissed the appeal for failure to file a timely
brief without having notified them of the possibility that
dismissal might be a consequence of such a failure.” Stroe,
256 F.3d at 499. We characterized this argument as
“border[ing] on the frivolous”:
The Board was under no duty, either constitutional or
statutory, to send [counsel] periodic reminders. An
appellant’s failure to file a brief is a serious procedural
default, and, at least when the appellant is represented
by counsel . . . dismissal is an appropriate sanction.
Id.We held similarly in Awe, 324 F.3d at 513. As in Stroe, the
petitioner in Awe had received an adverse ruling from an
IJ on his applications for asylum and withholding of
deportation. Awe appealed to the BIA
by submitting a Notice of Appeal, Form EOIR-26, on
which he checked the box indicating that he intended
to file a separate written brief in support of his appeal.
Also, in the space provided on the Notice of Appeal
itself, Awe stated in some detail his reasons for ap-
pealing the IJ’s decision. At that time Awe requested,
and later received, an additional 30 days to file his
brief; however, he never submitted a brief or an ex-
planation for its absence to the BIA. One month after
Awe’s brief was due but never filed, the INS filed a
brief expressing its support for the IJ’s decision. Two
months later the BIA summarily dismissed Awe’s
appeal, citing 8 C.F.R. § 3.1(d)(2)(i)(D).
No. 05-4641 9
Id. at 512. In his brief before this court, Awe did not
challenge the BIA’s “decision to dismiss his petition for
procedural reasons but instead argue[d] that the BIA’s
substantive review of the IJ’s decision was flawed.” Id. At
oral argument, Awe’s attorney acknowledged that he
had missed the briefing deadline, but argued that “his
mistake was not fatal because the Notice of Appeal gave
the BIA a ‘fair appraisal’ of the issues to be addressed in
Awe’s appeal.” Id. at 513. We held that Awe’s notice
argument was waived because he failed to present it to
the court prior to oral argument. However, we continued:
Even assuming Awe had not waived his right to
challenge the BIA’s procedural dismissal, we note that
8 C.F.R. § 3.1(d)(2)(i)(D) explicitly gives the BIA author-
ity to dismiss procedurally defective appeals, and we
have condoned the BIA’s use of this power in cases
similar to this one. See Stroe v. INS, 256 F.3d 498, 499
(7th Cir. 2001) (holding summary dismissal appro-
priate where party indicated he would file brief,
requested and received 30-day filing extension, and
never filed brief nor explained why he had not); accord
Rioja v. Ashcroft, 317 F.3d 514, 515-16 (5th Cir. 2003). We
do not see anything in the record here to suggest that
the BIA inappropriately exercised its power in sum-
marily dismissing Awe’s appeal under § 3.1(d)(2)(i)(D),
and we therefore affirm its decision on these grounds.
Awe, 324 F.3d at 513.7 With these authorities in mind,
we turn to Ms. Kokar’s arguments.
7
In rejecting Awe’s argument, we specifically noted that the
Ninth Circuit had “held that the BIA may excuse a petitioner’s
failure to file a brief if the Notice of Appeal is sufficiently
thorough.” Awe v. Ashcroft, 324 F.3d 509, 513 (7th Cir. 2003)
(citing Casas-Chavez v. INS, 300 F.3d 1088, 1091 (9th Cir. 2002)).
10 No. 05-4641
2. Ms. Kokar’s Contentions
Ms. Kokar presents two arguments for our considera-
tion. First, she submits that the BIA erred when it dis-
missed her appeal because it failed to give adequate
reasons for its decision. Second, she maintains that, under
the circumstances presented here, the BIA’s dismissal of
her appeal violated due process.
a.
With respect to her first argument, Ms. Kokar submits
that, because dismissal under § 1003.1(d)(2)(1)(E) is
permissive, rather than mandatory, the BIA was re-
quired to justify its application of the summary dismissal
rule in her case. Ms. Kokar does not point to any authority
that has imposed this requirement on the BIA. Indeed,
Ms. Kokar’s argument runs counter to this court’s case
law, which has upheld the BIA’s use of the summary
dismissal mechanism without requiring further explana-
tion or justification by the BIA. See, e.g., Awe, 324 F.3d
at 513; Stroe, 256 F.3d at 499.
b.
Ms. Kokar also contends that, under the circumstances
of her case, the BIA’s invocation of § 1003.1(d)(2)(i)(E)
violated her right to due process. Specifically, relying
on Garcia-Cortez v. Ashcroft, 366 F.3d 749 (9th Cir. 2004),
and Casas-Chavez v. INS, 300 F.3d 1088 (9th Cir. 2002),
Ms. Kokar claims that, when an appellant has articulated
the basis of her claim in the notice of appeal, summary
dismissal for failure to timely file a brief violates due
process.
No. 05-4641 11
As an initial matter, we must consider whether this
argument is properly before us. Ms. Kokar never pre-
sented her due process argument to the BIA by way of a
motion to reopen. “Although due process claims gen-
erally do not require exhaustion because the BIA does
not have authority to review constitutional challenges,
when those issues involve procedural errors correctable
by the BIA, applicants must raise such claims as part of
their administrative appeal.” Capric v. Ashcroft, 355 F.3d
1075, 1087 (7th Cir. 2004). Here, according to Ms. Kokar, the
BIA could have cured the alleged due process violation
either by evaluating the adequacy of her claim as set forth
in the notice of appeal or by considering her claim on the
merits. Thus, Ms. Kokar’s due process claim appears to be
one that is “correctable by the BIA,” and therefore sub-
ject to the exhaustion requirement.
However, even if Ms. Kokar’s due process claim were
properly before us, we nevertheless would reject her
claim on the merits. Ms. Kokar’s argument rests primarily
on the Ninth Circuit’s opinion in Garcia-Cortez. The Ninth
Circuit stated:
When an alien gives detailed reasons to support his
appeal, either in a separate brief or on the Notice of
Appeal itself, summary dismissal under 8 C.F.R.
§ 1003.1(d)(2)(i)(E) violates the alien’s due process
rights as guaranteed by the Fifth Amendment. [Casas-
Chavez, 300 F.3d at] 1090 n.2. Due process requires
that aliens who seek to appeal be given a fair oppor-
tunity to present their cases. The federal regulation
operates within the bounds of this constitutional
guarantee. The reason why it is permissible for the
BIA to summarily dismiss an appeal for failure to
timely file a brief is that an alien appealing an order
of removal must provide the BIA with adequate notice
12 No. 05-4641
of the specific grounds for his appeal. But when the
alien has in fact provided such notice to the BIA, this
justification falls away, and summary dismissal for
failure to timely file a brief violates the alien’s con-
stitutional right to a fair appeal. See Casas-Chavez, 300
F.3d at 1090-91 n.3.
Garcia-Cortez, 366 F.3d at 753 (additional quotation marks
and citations omitted).8
As our earlier precedent makes clear, we respectfully
disagree with our colleagues’ assessment for two reasons.
First, we believe that the authority for the court’s initial
proposition is illusory. The portion of Casas-Chavez cited
by the court states:
When the petitioner establishes the ground for appeal
with sufficient clarity on the Notice of Appeal form, the
mere failure to file a brief after indicating one would
be filed may not be a constitutionally sufficient rationale
for dismissing an alien’s appeal without considering
the merits. See Castillo-Manzanerez, 65 F.3d at 796 n.3.
300 F.3d at 1090 n.2 (emphasis added).
However, in Castillo-Manzanerez v. INS, 65 F.3d 793, 795-
96 n.3 (9th Cir. 1995), the entire footnote reads:
An amendment to 8 C.F.R. § 3.1(d)(1-a), effective
January 13, 1994, allows the BIA to summarily dismiss
an appeal where a petitioner indicates on Form
EOIR-26 “that he or she will file a brief or statement
8
The Ninth Circuit has recognized that, in the absence of
specific reasons stated in the notice of appeal, the BIA’s invoca-
tion of § 1003.1(d)(2)(i) does not violate due process. See Singh v.
Gonzales, 416 F.3d 1006, 1015 (9th Cir. 2005).
No. 05-4641 13
in support of the appeal and, thereafter, does not file
such brief or statement, or reasonably explain his or
her failure to do so, within the time set for filing.” 8
C.F.R. § 3.1(d)(1-a)(E) (1995). Even assuming that the
amendment states a constitutionally adequate ground upon
which to base a summary dismissal, we note that the
regulation did not become effective until almost four
years after Castillo-Manzanarez filed his Notice of
Appeal. Thus, contrary to the government’s contention,
the amendment does not govern the outcome of this
case.
Id. (emphasis added). In sum, the Ninth Circuit only
suggested in Castillo-Manzanerez that summary dismissal
under the present circumstances may not be constitu-
tionally sound; this suggestion, however, was merely dicta
and was not accompanied by any analysis. The suggestion
was repeated in Casas-Chavez, again without explanation
or elaboration. In Garcia-Cortez, however, this suggestion
became, without further explanation or elaboration, an
affirmative statement that due process is violated when
the BIA invokes 8 C.F.R. § 1003.1(d)(2)(i)(E) to dismiss
an appeal when the party has explained the basis of the
appeal on the notice of appeal form.9
In addition to relying on Casas-Chavez, the Ninth Circuit
in Garcia-Cortez also offered the following justification
for its holding, which, with respect, we also find unpersua-
sive:
Due process “requires that aliens who seek to appeal
be given a fair opportunity to present their cases.” . . .
9
As has been set forth above, see supra note 7, this court was
aware of the holding of the Ninth Circuit in Casas-Chavez when
it issued its decision in Awe.
14 No. 05-4641
The reason why it is permissible for the BIA to sum-
marily dismiss an appeal for failure to timely file a
brief is that an alien appealing an order of removal
must provide the BIA with adequate notice of the
specific grounds for his appeal. But when the alien
has in fact provided such notice to the BIA, this justi-
fication falls away, and summary dismissal for fail-
ure to timely file a brief violates the alien’s constitu-
tional right to a fair appeal.
366 F.3d at 753 (citations omitted). The statement, how-
ever, fails to acknowledge that the filing of a brief before
the BIA is optional. In order for an appeal to be con-
sidered by the BIA, the alien need only give an explana-
tion of the claim (and its factual or legal basis) on the
Notice of Appeal form. Thus, all aliens have a “fair oppor-
tunity to present their cases.” Id. The alien, however, may
choose to file a brief to provide further explanation with
respect to her claims. If the alien chooses to file a brief,
then the alien must do so within the time limits specified
by the BIA or, if she cannot do so, provide the BIA with
an explanation for that inability. The reason why it is
permissible for the BIA to summarily dismiss an appeal
for failure to timely file a brief is not solely, as the Ninth
Circuit states, to apprise the BIA of the specific grounds of
the appeal; it also is to permit the Board to manage its
large docket. Indeed, this court has recognized that “[a]n
appellant’s failure to file a brief is a serious procedural
default” for which dismissal is “an appropriate sanction.”
Stroe, 256 F.3d at 499.10
10
However, even if we were to follow the Ninth Circuit and
hold that appeals may not be dismissed for failure to file a brief
(continued...)
No. 05-4641 15
c.
The Court of Appeals for the Eleventh Circuit also has
determined that summary dismissal pursuant to 8 C.F.R.
§ 1003.1(d)(2)(i)(E) violates due process when the alien
10
(...continued)
when the grounds for the appeal have been set forth adequately
in the Notice of Appeal, the rule would not benefit Ms. Kokar.
The Ninth Circuit held in Garcia-Cortez that a summary dis-
missal for failure to file a brief violates due process only
if “adequate notice” is given to the BIA regarding the basis of
the appeal. Garcia-Cortez, 366 F.3d at 753. In an earlier case, that
court explained that an adequate notice was one that met the
requirements set forth in 8 C.F.R. § 3.1(d) (now 8 C.F.R.
§ 1003.3(b)). See Castillo-Manzanarez v. INS, 65 F.3d 793, 795
(9th Cir. 1995). The Ninth Circuit reiterated that “[w]here
eligibility for discretionary relief is at issue, it should be
stated whether the error relates to grounds of statutory eligi-
bility or to the exercise of discretion. . . . Where 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.” Id. (internal quotation
marks, citations and emphasis omitted).
In this case, however, the only statement in the notice of
appeal explaining the basis of the appeal was the following:
“While finding Respondent’s testimony to be credible, IJ erred
in denying her asylum by refusing to recognize her as a mem-
ber of the protected social group of ‘victims of women traffik-
ing [sic] for prostitution[]’ under the U.S. asylum laws.” A.R.8.
No further explanation of the claim was given, nor was the
statement accompanied by any reference to the administrative
record or to legal authorities. Consequently, even if we were
to apply the Ninth Circuit’s standard, we believe that the
BIA’s dismissal of Ms. Kokar’s appeal still would survive a
constitutional challenge.
16 No. 05-4641
adequately has apprised the Board of the nature of the
claim by way of the Notice of Appeal. See Esponda, 453
F.3d 1319.11 However, the rationale for its conclusion
differs from that of the Ninth Circuit:
Although 8 C.F.R. § 1003.1(d)(2)(i)(E) may appear
clear on its face, it conflicts with 8 C.F.R. § 1003.3(b),
which states that “[a] party taking the appeal must
identify the reasons for the appeal in the Notice of
Appeal (Form EOIR-26 or Form EOIR-29) or in any
attachments thereto, in order to avoid summary
dismissal pursuant to § 1003.1(d)(2)(i).” Thus,
§ 1003.3(b) can be interpreted to shield petitioners
from summary dismissal so long as they adequately
identify the basis for their appeal either on the Notice
of Appeal or in a supplementary brief. The conflict
between these two provisions creates an ambiguity
regarding whether the BIA may summarily dismiss
an appeal in cases where, although petitioners have
indicated that they will file a supplementary brief
and then failed to do so or offer an explanation, they
have fully apprised the Board of the basis for their
appeal on the Notice of Appeal.
The Supreme Court on several occasions has noted
the longstanding principle that ambiguities in de-
portation laws should be construed in favor of the
11
Ms. Kokar did not submit Esponda v. United States Attorney
General, 453 F.3d 1319 (11th Cir. 2006), to this court as supple-
mental authority; nor did she present to this court an argument
based on the alleged ambiguity in the regulations similar to
the one forwarded by the appellants in Esponda. Despite this
shortcoming, we believe that, for the sake of completeness,
we must address the rationale of our sister circuit.
No. 05-4641 17
alien. See, e.g., INS v. St. Cyr, 533 U.S. 289, 320 (2001);
INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987). In light
of this principle, we hold that the BIA abused its
discretion when, without determining whether the
Notice of Appeal adequately set forth the basis for
the petitioners’ appeal, it summarily dismissed the
appeal solely because petitioners indicated on the
Notice of Appeal that they would file a supplemen-
tary brief and then failed to do so and failed to offer
an explanation for not filing a brief.
Esponda, 453 F.3d at 1322 (parallel citations omitted).
We respectfully disagree with the Eleventh Circuit that
the combination of § 1003.1 and § 1003.3 creates ambigu-
ity. Section 1003.3 states that
[t]he party taking the appeal must identify the reasons
for the appeal in the Notice of Appeal (Form EOIR-26
or Form EOIR-29) or in any attachments thereto, in
order to avoid summary dismissal pursuant to
§ 1003.1(d)(2)(i). The statement must specifically identify
the findings of fact, the conclusions of law, or both, that are
being challenged. . . . The appellant must also indicate in the
Notice of Appeal . . . whether he or she desires oral
argument before the Board and whether he or she will
be filing a separate written brief or statement in support of
the appeal. . . .
8 C.F.R. § 1003.3 (emphasis added). Thus, § 1003.3 re-
quires that the appellant both specifically identify the
bases of the IJ’s opinion being challenged and indicate
whether she will file a separate written brief. These re-
quirements are consistent with the summary dismissal
powers of the Board set forth in 8 C.F.R. § 1003.1(d)(2)(i),
which provides that there are eight circumstances under
18 No. 05-4641
which “[a] single Board member or panel may sum-
marily dismiss any appeal or portion of any appeal”;
those include “(A) The party concerned fails to specify
the reasons for the appeal on Form EOIR-26 or Form EOIR-
29 (Notices of Appeal) or other document filed therewith;”
and “(E) The party concerned indicates on Form EOIR-
26 or Form EOIR-29 that he or she will file a brief or
statement in support of the appeal and, thereafter, does
not file such brief or statement, or reasonably explain his
or her failure to do so, within the time set for filing . . . .”
At bottom, the Eleventh Circuit’s view is that, because
§ 1003.3 contains an additional warning with respect to
the consequences for failure to identify the reasons for
appeal, an appellant might be lured into believing that
this shortcoming, and this shortcoming alone, might re-
sult in summary dismissal. In addition to giving a warn-
ing, however, § 1003.3 also cross-references § 1003.1,
which clearly identifies all of the grounds for summary
dismissal. No person, certainly no attorney, who read both
§ 1003.3 and § 1003.1 would be confused about the actions
or failures that might result in summary dismissal.
Furthermore, that an appellant may suffer summary
dismissal either for failing to set forth reasons or for fail-
ing to file a brief (after indicating an intention to do so) is
also apparent from the face of the notice of appeal form,
Form EOIR-26. Item 6 of Form EOIR-26 requests that the
appellant “[s]tate in detail the reason(s) for this appeal.”
A.R.8. Immediately following Item 6 is the following
warning:
!WARNING: You must clearly explain the specific
facts and law on which you base your appeal of the
Immigration Judge’s decision. The Board may sum-
marily dismiss your appeal if it cannot tell from this
No. 05-4641 19
Notice of Appeal, or any statements attached to this
Notice of Appeal, why you are appealing.
Id. Item 8 of the notice of appeal also asks, “Do you intend
to file a separate written brief or statement after filing
this Notice of Appeal?” Item 8 is immediately followed
by language similar to that which follows Item 6:
! WARNING: If you mark “yes” in item #8, you will be
expected to file a written brief or statement after you
receive a briefing schedule from the Board. The Board
may summarily dismiss your appeal if you do not file
a brief of statement within the time set in the briefing
schedule.
Id. Any appellant who reads Form EOIR-26 would under-
stand the consequences of failing to file a brief, conse-
quences consistent with § 1003.1.
Section 1003.3 requires the appellant both to articulate
the grounds for appeal and to indicate whether a brief
will be filed. Section 1003.1 informs the appellant that the
appeal may be subject to summary dismissal if she either
fails to detail her reasons for appeal or fails to file
a brief after indicating that she will do so. Form EOIR-26
repeats both the requirements of § 1003.3, as well as the
possibility of summary dismissal for failure to articulate
reasons or to file a brief after indicating that she will do
so, consistent with § 1003.1. Consequently, we do not
believe that there is a realistic possibility that an appellant,
or her counsel, might be confused about the BIA’s
power to summarily dismiss an appeal pursuant to
§ 1003.1(d)(2)(i)(E) under these circumstances, and, there-
fore, the regulations present no due process concerns.
Although we respect the positions taken by our sister
circuits on this issue, neither the rationale of the Ninth
20 No. 05-4641
Circuit nor that of the Eleventh Circuit persuade us that
we should revisit our decisions in Stroe and in Awe.12 An
alien seeking review by the BIA has the option to sup-
plement the reasons for appeal set forth in the notice
with a separate statement or brief. There is no require-
ment that she do so; however, having chosen to take that
route, she must comply with the procedural deadlines set
forth by the BIA or face the possibility of dismissal, conse-
12
The Ninth and Eleventh Circuits are not the only other circuits
that have spoken on this issue. The Fifth and Sixth Circuits have
taken a position similar to this court’s. See Rioja v. Ashcroft, 317
F.3d 514, 515-16 (5th Cir. 2003) (“The BIA was within its statu-
torily designated discretion to summarily dismiss Rioja’s ap-
peal after he indicated on the notice of appeal form that a
separate brief or statement would be filed and then failed to
submit such brief or statement before the filing deadline.”);
Ahmed v. Gonzales, 198 F. App’x 517, 520 (6th Cir. 2006) (unpub-
lished) (“We now follow the Fifth Circuit in holding that fail-
ure to file a supplementary brief alone may be and is here an
adequate ground for summary dismissal.”). The Third Circuit,
by contrast, has followed the rationale of the Eleventh Circuit
in Esponda. See Then v. Attorney General of the United States, No.
05-4883, 2006 WL 3068893, at *3 (3d Cir. Oct. 30, 2006) (unpub-
lished) (remanding case to the BIA for consideration of reasons
set forth in the notice of appeal even though petitioner had
failed to file a brief after indicating on Form EOIR-26 that he
would do so).
Finally, although the Second Circuit has not spoken to the
exact circumstances set forth here, it has held that due process
is violated when the BIA summarily dismisses a case in which
a pro-se petitioner sets forth reasons for his appeal in the
notice of appeal, indicates that he will file a brief and files a
timely motion for extension of time in which to file a brief. See
Lewis v. Chertoff, 194 F. App’x 1, 2 (2d Cir. 2006) (unpublished).
No. 05-4641 21
quences clearly set forth on the face of the notice of ap-
peal. The subsequent dismissal of an appeal for failure to
comply with these deadlines cannot be characterized as
the result of legitimate confusion over the possible conse-
quence and, especially when the alien has the benefit of
counsel, does not deprive the alien of the right to be heard.
Instead, it preserves the right common to adjudicative
bodies, here the BIA, to control their docket and to penalize
“serious procedural default[s].” See Stroe, 256 F.3d at 499.13
Conclusion
For the foregoing reasons, the petition for review is
denied, and the decision of the BIA is affirmed.
PETITION DENIED
DECISION AFFIRMED
13
We note that Ms. Kokar does not argue that 8 C.F.R.
§ 1003.1(d)(2)(i)(E) is being applied by the BIA in an uneven-
handed or freakish manner, nor are there facts in the record
that would support such a conclusion. Cf. Braun v. Powell, 227
F.3d 908, 912 (7th Cir. 2000) (reciting the rule that, in order to be
“an adequate ground of decision” as to bar federal habeas
review, a state’s procedural rule must be “applied in a con-
sistent and principled way” and may not be “employed infre-
quently, unexpectedly, or freakishly” (internal quotation
marks and citations omitted)). Consequently, we have no oc-
casion to determine whether such an argument, if supported
by the record, would constitute a due process violation.
22 No. 05-4641
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-1-07