Monday, October 30, 2006

Then (not precedential): BIA Cannot Dismiss Appeal For Failing To File Brief If Reasons Clear From Notice Of Appeal

Then v. Gonzales, No. 05-4883 (3d Cir. Oct. 30, 2006) (not precedential):

When you file an appeal of an immigration judge's decision, you list for the BIA the reasons for your appeal in a box on the form. After what varies between a few months to several months, the BIA sends a letter setting a deadline for your brief, if you initially indicated you will file a brief. This case raises the issue of what happens if your notice of appeal lists your reasons for appeal but you fail to file the brief you promised you would. The BIA dismissed the appeal relying solely on how the guy did not file his promised brief. The Third Circuit ruled that was a mistake -- if the notice of appeal explains the basis for appeal, the BIA must analyze that and cannot rely only on how the guy did not file his promised brief.

So, the BIA made a mistake by summarily dismissing his BIA appeal and not explaining whether it noticed or considered the reasons he listed in his notice of appeal. The Third Circuit sent the case back to the BIA so it could examine the issues and explain its decision. Immigration Judge Annie S. Garcy was the immigration judge in the case, but the Third Circuit focused on mistakes by the BIA and did not say that Judge Garcy did anything wrong in the case.


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