Tuesday, March 02, 2010

Bile (not precedential): 2-1 Majority Says No Jurisdiction Over Issue Where Not Appealed To BIA

Bile v. Holder
No. 08-3792
Not Precedential
August 12, 2009
2-1 decision.

Judges Sloviter, Ambro, and Greenberg. Per Curiam decision. It had been before IJ Walter A. Durling.

In the majority per curiam decision, Judges Sloviter and Greenberg held that the issue exhaustion doctrine prevents someone from raising any issue they did not raise to the BIA in any manner, not even mentioning in some way in their notice of appeal to the BIA.

Judge Ambro dissented because the BIA did consider the issue of its own accord by noting that it viewed Mr. Bile as previously being advised of the right to appeal and clearly electing not to appeal. The BIA therefore considered the validity of the waiver of the right to appeal.

One key tip is to it might be too late to bring someone new to work on the Third Circuit appeal. If the person who worked on the BIA appeal did not raise some issues, it might stop them from being raised to the Third Circuit, no matter how good the lawyer at that point is.


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