Armando Cabello v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2022
• Docket: 21-70791
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 13 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO MIGUEL CABELLO, No. 21-70791

Petitioner, Agency No. A208-080-966

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 9, 2022** Portland, Oregon

Before: SCHROEDER and SUNG, Circuit Judges, and ANTOON,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. Armando Cabello, a citizen of Mexico, petitions for review of the decision

of the Board of Immigration Appeals (“BIA”) to summarily dismiss his appeal

pursuant to 8 C.F.R. § 1003.1(d)(2)(i)(A), (E) for failure to specify the reasons for

the appeal and for failing to file a separate brief after stating an intent to do so.

In his petition, Mr. Cabello extensively argues the merits of the Immigration

Judge’s (“IJ”) decision to deny his petition for asylum, withholding of removal,

protection under the Convention Against Torture (“CAT”), and cancellation of

removal. This court’s review, however, is limited to the BIA’s summary dismissal

because the BIA based its decision on the purely procedural grounds set out in 8

C.F.R. § 1003.1(d)(2)(i)(A), (E). See Singh v. Ashcroft, 361 F.3d 1152, 1156 (9th

Cir. 2004).

The BIA may summarily dismiss an appeal where, as here, the Notice of

Appeal does not specify the reasons for the appeal. 8 C.F.R. § 1003.1(d)(2)(i)(A).

To satisfy this specificity requirement, a petitioner asserting a legal challenge must

reference supporting authority, and when challenging a decision of fact, the

petitioner must identify the particular details that are contested. See Rojas-Garcia

v. Ashcroft, 339 F.3d 814, 820 (9th Cir. 2003). Mr. Cabello’s Notice of Appeal

contains generalized statements of law without support and vague references to

erroneous factual conclusions. See Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753

2 (9th Cir. 2004). Contrary to Mr. Cabello’s argument in this Court, the pre-hearing

briefing he submitted to the IJ does not satisfy the specificity requirement in

Section 1003.1 because that briefing does not identify any factual or legal errors in

the IJ’s analysis. See id.

The BIA may also summarily dismiss an appeal where petitioners indicate

that they will file a brief or statement in support of their appeal and do not file

these documents, or reasonably explain their failure to do so, by the time the filing

deadline expires. 8 C.F.R. § 1003.1(d)(2)(i)(E). Mr. Cabello indicated in his

Notice of Appeal that he would file a separate written brief or statement. The

Notice of Appeal warned that his appeal could be dismissed if he did not timely

file. Despite this warning, Mr. Cabello did not file a separate brief or statement

and did not explain his failure to do so. The BIA did not err by summarily

dismissing his appeal in accordance with 8 C.F.R. § 1003.1(d)(2)(i)(E).

The petition is DENIED.