Monday, March 02, 2009

Hoxha: BIA Must Address All Issues In The Notice Of Appeal

Hoxha v. Holder
No. 07-2940
March 2, 2009

Judges Scirica, McKee, and Smith. Opinion by Judge Smith. Douglas A. Grannan of the Law Office of Greg Prosmushkin of Philadelphia for the Hoxhas. Monica G. Antoun and Paul F. Stone of OIL for the government.

The BIA is required to address all issues adequately mentioned in the Notice of Appeal to the BIA, even if the person filing the appeal does not provide additional explanation for those points in the full BIA appeal brief. The Third Circuit views the appeal brief as an optional filing. Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004). The regulation that demands a notice of appeal is 8 CFR 1003.3. Its wording sets forth a demand for a detailed notice of appeal and tends to indicate the full appeal brief is optional rather than mandatory. The EOIR-26 form suggests failing to file a brief does not trigger automatic forfeiture of the appeal, either.

Therefore, the BIA must analyze all issues fairly raised in the Notice of Appeal and in any full BIA appeal brief, even if an issue might appear in only one of those filings and not the other. This is a circuit split with the Sixth Circuit in Hassan v. Gonzales, 402 F.3d 429, 433 n.5 (6th Cir. 2005) and the Ninth Circuit in Abebe v. Mukasey, 2009 WL 50120 at *3 (9th Cir. 2009) (en banc).

The Third Circuit has the better argument because it focuses on the specific language in the unusual world of immigration administrative appeals. In this case, the BIA ignored an issue raised in the Notice of Appeal so the Third Circuit overturned the BIA and remanded for further proceedings on the issue the BIA failed to address the first time around.


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