Jose Urista Guerra v. Jefferson Sessions, III ( 2018 )

FILED
NOT FOR PUBLICATION
SEP 07 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS URISTA GUERRA, No. 15-70649
Petitioner, Agency No. A205-405-900
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 28, 2018
Pasadena, California
Before: BYBEE and WATFORD, Circuit Judges, and HERNANDEZ,** District
Judge.
José Luis Urista-Guerra (Urista-Guerra) has applied for withholding of
removal and protection under the regulations implementing the Convention
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Marco A. Hernandez, United States District Judge for
the District of Oregon, sitting by designation.
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Against Torture (CAT). The Immigration Judge (IJ) denied Urista-Guerra’s
applications. The Board of Immigration Appeals (BIA) summarily dismissed
Urista-Guerra’s appeal, pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(A), (E), after he
indicated that he would file a brief and failed to timely do so. He then filed a
petition for review in this court, which we deny.
Because the BIA dismissed Urista-Guerra’s appeal on procedural grounds,
this court’s jurisdiction is limited to review of the BIA dismissal itself. Singh v.
Ashcroft, 361 F.3d 1152, 1156 (9th Cir. 2004). Thus, we cannot address the claims
Urista-Guerra has raised regarding proceedings before the IJ. We review the
BIA’s summary dismissal to determine whether it violates Urista-Guerra’s Fifth
Amendment right to a fair appeal. Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753
(9th Cir. 2004). Summary dismissal is appropriate only if the petitioner has failed
to provide the BIA with “meaningful guidance,” either in his Notice of Appeal or
in a separate brief. Id. at 752; Casas–Chavez v. INS, 300 F.3d 1088, 1090 (9th Cir.
2002). Urista-Guerra provided the BIA with no such guidance.
On September 29, 2014, Urista-Guerra filed a Notice of Appeal with the
BIA pro se. His allegations read:
The immigration judge denied my case based on my medical records. He
did not give my [sic] time to turn in all my evidence for review. My court
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was cancelled on 9/23/2014 wich [sic] did not allow me a chance to turn in
my evidence and simply defend myself. I have evidence to defend myself in
front of a judge that is going to review my case throughlly whit [sic] all the
evidence I am able to present.
Urista-Guerra also checked a box to indicate that he would file a separate written
brief. However, he failed to timely file this brief, despite the BIA twice extending
the briefing deadline by a total of six weeks at Urista-Guerra’s request. On
January 29, 2015—fifteen days after the briefing deadline—Urista-Guerra filed a
one-sentence Motion for Consideration of a Late-Filed Brief, to which he attached
medical documents but not a brief. He submitted a brief, containing mostly
boilerplate legal arguments not relevant to his case, one day later.
We first consider whether the BIA should have accepted Urista-Guerra’s
brief. The BIA has discretion to accept or reject a brief filed out of time, but must
give “some reasoned explanation” to indicate how it “arrived at [its] conclusion.”
Garcia Gomez v. Gonzales, 498 F.3d 1050, 1051 (9th Cir. 2007) (internal
quotation and citation omitted). We review this decision only for abuse of
discretion. See id. Here, the BIA wrote that “the medical documents, without
more, do not establish how a medical reason prevented [Urista-Guerra] from filing
earlier.” As this explanation demonstrates, the BIA sufficiently engaged with the
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documents Urista-Guerra submitted in support of his motion. We thus hold that
the BIA did not abuse its discretion in declining to consider Urista-Guerra’s late-
filed brief.
As Urista-Guerra failed to file a brief, the BIA’s summary dismissal was
proper if Urista-Guerra’s Notice of Appeal also failed to provide the Board with
“meaningful guidance” as to the claims he intended to pursue on appeal. Garcia-
Cortez, 366 F.3d at 752. Although we construe such pro se notices liberally, the
notice must be sufficient to “inform the BIA of what aspects of the IJ's decision
were allegedly incorrect and why.” Reyes–Mendoza v. INS, 774 F.2d 1364, 1365
(9th Cir.1985).
Urista-Guerra’s notice is not sufficient. It does not identify what evidence
the IJ did not allow him a chance to turn in, and cites to a cancelled court date
which was to occur six days after the IJ issued his decision. At oral argument,
Urista-Guerra suggested that this additional evidence may have been
documentation of his service in the Mexican miliary. However, Urista-Guerra
testified before the IJ that he had no such documents in his possession, and
suggested that they may not be obtainable. Moreover, Urista-Guerra made no
mention of these military documents in the notice he submitted to the BIA. The
BIA is not required to “search through the record and speculate on what possible
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errors the [petitioner] claims” or “decipher general statements of error,
unsupported by specific factual or legal references.” See Rojas-Garcia v. Ashcroft,
339 F.3d 814, 820 (9th Cir. 2003) (citing Matter of Valencia, 19 I. & N. Dec. 354,
355 (BIA 1986)).
PETITION FOR REVIEW DENIED.
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