Oros-Martinez
Oros-Martinez v. Ashcroft
Opinion
Lead Opinion
MEMORANDUM **
The Board of Immigration Appeals may summarily dismiss an appeal if “[t]he party ... indicates on Form EOIR-26 ... that he or she will file a brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his or her failure to do so....” 8 C.F.R. § 1003.1 (d)(2)(i)(E).
Oros-Martinez indicated on the EOIR26 form that he would file a separate written brief fully articulating the specific factual and legal basis for his appeal, but did not do so. Martinez now relies on Vargas-Garcia v. INS, 287 F.3d 882 (9th Cir.2002), to support his claim that the form is ambiguous, and thereby excuses his failure to file a brief.
However, Vargas, unlike Martinez, did not indicate that he would file a separate written brief. Id. at 885 n. 3. Thus, his case turned solely on the clarity of the form’s instructions. Id. at 884 . In contrast, Martinez committed to filing a brief, and was provided a briefing schedule by the BIA. Thus, any failure of the EOIR-26 form to adequately describe what the BIA requires in order to evaluate an appeal was not at issue. See Toquero v. INS, 956 F.2d 193, 196 (9th Cir.1992).