Castillo-Ponce v. Attorney General of the United States

685 F. App'x 139
CourtCourt of Appeals for the Third Circuit
DecidedApril 18, 2017
Docket15-3985
StatusUnpublished

This text of 685 F. App'x 139 (Castillo-Ponce v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castillo-Ponce v. Attorney General of the United States, 685 F. App'x 139 (3d Cir. 2017).

Opinion

OPINION **

SHWARTZ, Circuit Judge.

Omar Alexander Castillo-Ponce petitions for review of a decision of the Board of Immigration Appeals (“BIA”) summarily dismissing his appeal from an order of the Immigration Judge (“IJ”) which denied him withholding of removal under 8 U.S.C. §§ 1158 and 1231(b)(3) and relief under the Convention Against Torture (“CAT”). Because the BIA did not abuse its discretion in summarily dismissing his appeal, we will deny the petition.

*140 I

Castillo-Ponce is a native of Honduras. He claims a gang attempted to force him into gang activity when he lived there. On one occasion, a gang attacked him, his brother, and a friend with machetes, and his friend was killed. He and his brother reported the attack to the police, and gang members threatened to retaliate against him for reporting the incident. According to Castillo-Ponce, the police took no action to protect them. He thereafter left Honduras and entered the United States without inspection in 2002.

In 2008, Castillo-Ponce was arrested for public drunkenness, and the Department of Homeland Security served him with a notice to appear charging him with remov-ability under 8 U.S.C. § 1182(a)(6)(A)(i). He conceded his removability and sought asylum, withholding of removal, and relief under the CAT arguing, among other things, that he was a member of a particular social group (“PSG”) of persons who have resisted gang activity. In a 2010 order, the IJ found him removable, and that he (1) was not eligible for asylum because he did not establish extraordinary circumstances to excuse his failure to file an asylum application within one year of arrival, (2) was not eligible for withholding of removal since he did not establish past or a well-founded fear of future persecution based on his membership in a PSG, and (3) was not entitled to CAT relief because he did not show a clear probability that he would be tortured with government acquiescence. The BIA agreed with the IJ, ordered Castillo-Ponce removed to Honduras, and dismissed the appeal.

Castillo-Ponce petitioned this Court for review. We granted the Government’s unopposed motion to remand for the BIA to re-examine whether Castillo-Ponce is a member of a cognizable PSG under Valdiviezo-Galdamez v. Attorney General of the United States, 663 F.3d 582 (3d Cir. 2011). Order, Castillo-Ponce v. Att’y Gen. of the U.S., No. 11-3536 (3d Cir. Apr. 5, 2012). On remand, Castillo-Ponce argued, among other things, that he was a member of a cognizable PSG, namely persons who resisted gang- membership. The BIA remanded to the IJ to develop the record and to address whether Castillo-Ponce was a member of a PSG Under Valdiviezo-Galdamez.

After a hearing, the IJ again found that Castillo-Ponce was not a member of a PSG and that he failed to establish that he would more likely than not be tortured by gang members with the acquiescence of the government if he were to return to Honduras.

Castillo-Ponce appealed to the BIA. The form Notice of Appeal (Form EOIR-26) required that he “[s]tate in detail the reason(s) for this appeal,” App. II at 34; A.R. 29, and he wrote that:

Respondent had previously appealed the IJ’s denial of 1-589 relief based on gang-resistor particular social group (PSG). The BIA dismissed and Respondent appealed to the Third Circuit. Following issuance of Valdiviezo-Galdamez, the Third Circuit remanded to the BIA. The BIA remanded to the IJ. In the interim, the BIA issued Matter of M-E-V-G-. Based on M-E-V-G’s confirmation of Matter of S-E-G-, the IJ confirmed her prior decision. Respondent claims error in IJ’s denial of his PSG.

App. II at 34; A.R. 29. The form also included the following:

WARNING: You must clearly explain the specific facts and law on which you base your appeal of the [IJ] ’s decision. The Board may summarily dismiss your appeal if it cannot tell from this Notice of Appeal, or any statement attached to *141 this Notice of Appeal, why you are appealing.

App. II at 34; A.R. 29 (emphasis in original). In addition, the form asks if the petitioner intends to file a brief to which he responded ‘Yes.” App. II at 34; A.R. 29. The form warned that:

If you mark ‘Tes” in item #8, you will be expected to file a written brief or statement after you receive a briefing schedule from the Board. The Board may summarily dismiss your appeal if you do not file a brief or statement within the time set in the briefing schedule.

App, II at 34; A.R. 29.

A briefing schedule was issued, setting November 20, 2014, as the deadline for Castillo-Ponce to file his brief and further warning that:

If you indicate on the Notice of Appeal ... that you will file a brief or statement, you are expected to file a brief or statement in support of your appeal. If you fail to file a brief or statement within the time set'for filing in this briefing schedule, the Board may summarily dismiss your appeal.

A.R. 5. Castillo-Ponce moved for, and was granted an extension to file his brief until December 11, 2014, and the amended briefing schedule again notified him that his case could be summarily dismissed if a brief was not filed. Castillo-Ponce did not file a brief or explain why none was submitted.

The BIA summarily dismissed Castillo-Ponce’s appeal because: (1) the Notice of Appeal “d[id] not contain any statements that meaningfully apprise[d] the Board of specific reasons underlying the challenge to the [IJ] ’s decision”; and (2) he did not file a separate brief or explain why he failed to do so. App. I at 4; A.R. 3. Castillo-Ponce petitions, for review.

II 1

We must decide whether the BIA acted properly in summarily dismissing Castillo-Ponce’s appeal. We review the BIA’s summary dismissal of an appeal for abuse of discretion. See Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005); Rioja v. Ashcroft, 317 F.3d 514, 515 (5th Cir. 2003). “Discretionary decisions of the BIA will not be disturbed unless they are found to be arbitrary, irrational or contrary to law.” Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (citation and internal quotation marks omitted).

The BIA regulations require an appealing party to “identify the reasons for the appeal in the Notice of Appeal ... or in any attachments thereto,” as well as to “identify the findings of fact, the conclusions of law, or both, that are being challenged.” 8 C.F.R.

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Related

Rioja v. Ashcroft
317 F.3d 514 (Fifth Circuit, 2003)
Hardeep Singh v. John Ashcroft, Attorney General
361 F.3d 1152 (Ninth Circuit, 2004)
M-E-V-G
26 I. & N. Dec. 227 (Board of Immigration Appeals, 2014)
S-E-G
24 I. & N. Dec. 579 (Board of Immigration Appeals, 2008)

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Bluebook (online)
685 F. App'x 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castillo-ponce-v-attorney-general-of-the-united-states-ca3-2017.