Oscar Padilla-Agustin v. Immigration & Naturalization Service

Opinion by Judge FERNANDEZ; Partial concurrence and partial dissent by Judge O’SCANNLAIN.

Oscar Padilla-Agustin, a native and citizen of Guatemala, petitions for review of the decision of the Board of Immigration Appeals which summarily dismissed his appeal of the Immigration Judge’s ruling denying him asylum and withholding of deportation. He also petitions for review of the BIA’s denial of his motions to reopen and reconsider its decision. Padilla was found to be in violation of Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251 (a)(2) (1988), because he entered the United States without inspection.

Padilla argues that the BIA erred in summarily dismissing his appeal without adequately informing him that it was contemplating summary dismissal, or, in the alternative, that the BIA erred in summarily dismissing his appeal because his Notice of Appeal adequately specified the reasons for the appeal. He also contends that the BIA erred in denying his first motion to reopen and reconsider, because he presented new evidence and the summary dismissal was in error. We affirm the judgment of the BIA on the first motion to reopen and reconsider. We reverse the…

concurring in part and dissenting in part:

Relying upon what it calls the “normal way to approach forms,” the majority finds that the absence of a large blank space on the printed notice of appeal form deprived Padilla of procedural due process guaranteed by the United States Constitution. Unfortunately, it is the presence of a large blank space in the reasoning of its opinion which leads the majority to such a bizarre conclusion. Because I believe that form EOIR-26 provided reasonable notice to Padilla, I must dissent from that part of the majority’s opinion denominated “A. Adequacy of the Summary Dismissal Procedures”; I.concur in the remainder.

I

The Board of Immigration Appeals (“BIA”) requires a petitioner appealing an adverse immigration judge (“IJ”) decision to state the specific grounds for the appeal. A petitioner may not merely assert that an IJ erred in denying an application for relief from deportation. Instead, as the majority observes, he or she must identify the IJ’s alleged error and discuss either the legal standards that the IJ contravened or the particular details of any factual error. Matter of Valencia, 19 I. & N.Dec. 354 (BIA 1986).

Form EOIR-26…

21 F.3d 970 Oscar PADILLA-AGUSTIN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Nos. 92-70611, 93-70351. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 9, 1994. Decided April 21, 1994. Lee A. O'Connor (on brief and argued), San Fernando Valley Neighborhood Legal Services, Pacoima, CA, for petitioner in No. 92-70611. Lee A. O'Connor (on brief and argued), San Fernando Valley Neighborhood Legal Services, Pacoima, CA, for petitioner in No. 93-70531. Timothy B. Walthall, Office of Immigration Litigation, U.S. Dept. of Justice (on brief and argued); for respondent in No. 92-70611. Timothy B. Walthall, Office of Immigration Litigation, U.S. Dept. of Justice (on brief and argued); David J. Kline, Asst. Director; and April Dawson, Law Clerk, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, (on brief), for respondent in No. 93-70351. Petition for Review of Decisions of the Board of Immigration Appeals Before: PREGERSON, O'SCANNLAIN, and FERNANDEZ, Circuit Judges. Opinion by Judge FERNANDEZ; Partial concurrence and partial dissent by Judge O'SCANNLAIN. FERNANDEZ, Circuit Judge: 1 Oscar Padilla-Agustin, a native and…