Pedro Calzadilla-Tobar v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO CALZADILLA-TOBAR, No. 16-73333
Petitioner, Agency No. A099-063-088
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Pedro Calzadilla-Tobar, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order summarily dismissing
his appeal from an immigration judge’s removal order. Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
decision to summarily dismiss an appeal, and review de novo due process claims
and questions of law. Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005). We
review for abuse of discretion the BIA’s decision to reject an untimely brief. Zetino
v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010). We deny in part and dismiss in
part the petition for review.
The BIA did not abuse its discretion or violate due process in summarily
dismissing Calzadilla-Tobar’s appeal and rejecting his brief as untimely, where he
indicated on his notice of appeal that a separate written brief would be filed but
failed to timely file a brief or sufficiently explain his failure to do so, and his notice
of appeal lacked sufficient specificity regarding the grounds for appeal. See 8
C.F.R. §§ 1003.1(d)(2)(i)(A), (E), 1003.3(c)(1); Zetino, 622 F.3d at 1013 (BIA did
not abuse its discretion or violate due process by denying an untimely brief under a
regulation indicating that it could or could not accept the brief); Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 822 (9th Cir. 2003) (no due process violation where failure
to file a brief was caused by counsel’s mistake, as opposed to a deficiency in BIA’s
procedures); cf. Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753-54 (9th Cir. 2004)
(BIA may violate an alien’s due process rights if it summarily dismisses an appeal
for failing to file a brief, where the notice of appeal is sufficiently detailed to put
the BIA on notice of the issues on appeal).
Calzadilla-Tobar’s contentions that the BIA did not sufficiently explain its
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decision or engaged in impermissible factfinding are not supported by the record.
See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (holding the BIA
adequately considered evidence and sufficiently announced its decision).
We do not reach Calzadilla-Tobar’s unexhausted contention that ineffective
assistance of counsel excused the late filing of the brief. See Vilchiz-Soto v.
Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order) (stating that to the extent
petitioners contend they received ineffective assistance of counsel, the court lacked
jurisdiction because it was not raised before the BIA); Zhang v. Ashcroft, 388 F.3d
713, 721 (9th Cir. 2004) (petitioner must sufficiently put the BIA on notice as to
specific issues so that the BIA has an opportunity to pass on those issues).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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