Olguin-Hernandez v. Ashcroft

71 F. App'x 757

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 12, 2003
• Docket: No. 01-71206, 02-72341; Agency No. A92-002-812
• Status: Published

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).

Olguin-Hernandez promised, yet failed, to file a timely written brief. The BIA nevertheless examined Hernandez’ notice of appeal to ascertain whether the form adequately specified the factual and legal basis for the appeal. It did not. Thus, “the Board was left guessing at how and why petitioner thought the court had erred,” Toquero v. INS, 956 F.2d 193, 195 (9th Cir.1992) (citation omitted), and summary dismissal of Hernandez’ appeal was appropriate. See Rojas-Garcia v. Ashcroft, No. 02-35788, 2003 WL 21739501, *4 (9th Cir. July 29, 2003).

Hernandez also filed a motion to reopen his removal proceedings, arguing that the subsequent birth of his two United States citizen children made him newly eligible for cancellation of removal. Relying upon Matter of Andazola, 23 I & N Dec. 319 (BIA 2002) and Matter of Monreal, 23 I & N Dec. 56 (BIA 2001), the BIA denied Hernandez’ motion to reopen.

We review the BIA’s denial of Hernandez’ motion to reopen for an abuse of discretion. Guzman v. INS, 318 F.3d 911, 912 n. 1 (9th Cir.2003). Given that both Andazola and Monreal are factually indistinguishable from this case, the BIA’s reliance on the two cases was not an abuse of discretion.

PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.