Opinion
20-527 NAC
07-07-2022
BRYAN FRANCISCO ANDRADE-DURAN, Petitioner, v. MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent.
FOR PETITIONER: Bruno Joseph Bembi, Esq., Hempstead, NY. FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Zoe J. Heller, Senior Litigation Counsel; Katherine S. Fischer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
UNPUBLISHED OPINION
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of July, two thousand twenty-two.
FOR PETITIONER: Bruno Joseph Bembi, Esq., Hempstead, NY.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Zoe J. Heller, Senior Litigation Counsel;
Katherine S. Fischer, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
PRESENT: RAYMOND J. LOHIER, JR., WILLIAM J. NARDINI, STEVEN J. MENASHI, Circuit Judges.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petitioner Bryan Francisco Andrade-Duran, a native and citizen of El Salvador, seeks review of a January 29, 2020, decision of the BIA summarily dismissing his appeal of a November 1, 2019, decision of an Immigration Judge ("IJ"). In re Bryan Francisco Andrade-Duran, No. A 209 898 128 (B.I.A. Jan. 29, 2020), dismissing appeal from No. A 209 898 128 (Immigr. Ct. N.Y. City Nov. 1, 2019). We assume the parties' familiarity with the underlying facts and procedural history.
We have reviewed only the BIA's decision dismissing as untimely Andrade-Duran's appeal of the IJ's decision. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factual findings for substantial evidence and questions of law de novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). The BIA's interpretation of its own regulations is "controlling unless plainly erroneous or inconsistent with the regulation." Perriello v. Napolitano, 579 F.3d 135, 138 (2d Cir. 2009). The BIA did not err in dismissing the appeal as untimely.
A notice of appeal must be filed with the BIA within 30 days of an IJ's decision and "is not properly filed unless it is received at the Board, along with all required documents, fees or fee waiver requests ...." 8 C.F.R. § 1003.3(a)(1); see also id. § 1003.38(b) (30-day deadline), (d) ("If the fee is not paid or the Appeal Fee Waiver Request (Form EOIR-26A) is not filed within the specified time period . . . the appeal will not be deemed properly filed ...."). The regulations specify that the appeal must be filed with the fee or with a fee waiver request "in satisfaction of the fee requirements in [8 C.F.R.] § 1003.8." Id. § 1003.3(a)(3). Section 1003.8(a)(3), in turn, states: "If the fee waiver request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed ...."
Citations to the regulations are to the version in effect at the time of the agency proceedings.
The BIA's Practice Manual warns that an improperly filed notice may be considered untimely: "If an appeal is received by the Board but has not been properly filed (for example, the filing fee is missing or Proof of Service has not been completed), the appeal may be rejected. Rejection does not extend the filing deadline. Instead, it can result in an untimely filing and, ultimately, dismissal of the appeal." BIA Prac. Man. Ch. 4.2(b) (E.O.I.R.) (September 2019), available at https://www.justice.gov/eoir/file/1205211 (internal citations omitted).
The BIA may excuse an untimely filing by certification under 8 C.F.R. § 1003.1(c), a discretionary process not subject to our review, or by equitable tolling when the petitioner raises it. See Attipoe v. Barr, 945 F.3d 76, 80, 82 (2d Cir. 2019); Matter of Liadov, 23 I. &N. Dec. 990, 993 (B.I.A. 2006) (noting that late filing may be excused by selfcertification under exceptional circumstances).
Andrade-Duran does not dispute that he received the rejection notice, which instructed him to refile either within 30 days of the IJ's decision or within 15 days of the date of the rejection notice if he included a request for the BIA to consider the appeal on certification. He did neither. Instead, he filed his corrected notice of appeal on December 23, 2019, more than 30 days after the IJ's November 1, 2019, decision, and more than 15 days after the November 25, 2019, rejection notice. His argument that his appeal was timely because his initial, defective notice of appeal was filed within the 30-day time limit has no merit because, under the regulations and practice manual guidance, that notice was not properly filed. See 8 C.F.R. §§ 1003.3(a)(1), (3), 1003.8(a)(3), 1003.38(d). And the BIA had the authority to summarily dismiss the untimely appeal when he did not timely cure the defective filing. 8 C.F.R. § 1003.1(d)(2)(i)(G). He did not ask the BIA to take the appeal by certification as instructed in the rejection notice. And there was no basis for the BIA to consider equitable tolling of the appeal period because he did not identify any reason for his failure to timely cure the defective filing, and does not identify such a reason here. Cf. Attipoe, 945 F.3d at 82.
Andrade-Duran failed to exhaust his due process arguments before the BIA. See Arango-Aradondo v. INS, 13 F.3d 610, 614 (2d Cir. 1994) (holding that exhaustion principles require a petitioner to raise a due process claim before the BIA in the first instance where the claim "involves procedural errors correctable by the administrative tribunal" (quotation marks omitted)); see also Severino v. Mukasey, 549 F.3d 79, 83 (2d Cir. 2008). Even were we to reach those arguments, he has not stated a claim because he has not shown that the BIA "denied [him] a full and fair opportunity to present h[is] claims or . . . otherwise deprived h[im] of fundamental fairness" by returning his rejected fee waiver to him rather than making it part of the record. Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (internal quotation marks omitted). To the extent that he argues that due process requires a full record of the proceedings before the IJ, he has not shown prejudice because only the BIA's summary dismissal of his appeal is before us. See Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) ("Parties claiming denial of due process in immigration cases must, in order to prevail, allege some cognizable prejudice fairly attributable to the challenged process." (internal quotation marks omitted)).
For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.