Pedro Calzadilla-Tobar v. Jefferson Sessions, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 18, 2018
• Docket: 16-73333
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PEDRO CALZADILLA-TOBAR, No. 16-73333

Petitioner, Agency No. A099-063-088

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

Pedro Calzadilla-Tobar, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order summarily dismissing

his appeal from an immigration judge’s removal order. Our jurisdiction is

governed by 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s

* 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). decision to summarily dismiss an appeal, and review de novo due process claims

and questions of law. Singh v. Gonzales, 416 F.3d 1006, 1009 (9th Cir. 2005). We

review for abuse of discretion the BIA’s decision to reject an untimely brief. Zetino

v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010). We deny in part and dismiss in

part the petition for review.

The BIA did not abuse its discretion or violate due process in summarily

dismissing Calzadilla-Tobar’s appeal and rejecting his brief as untimely, where he

indicated on his notice of appeal that a separate written brief would be filed but

failed to timely file a brief or sufficiently explain his failure to do so, and his notice

of appeal lacked sufficient specificity regarding the grounds for appeal. See 8

C.F.R. §§ 1003.1(d)(2)(i)(A), (E), 1003.3(c)(1); Zetino, 622 F.3d at 1013 (BIA did

not abuse its discretion or violate due process by denying an untimely brief under a

regulation indicating that it could or could not accept the brief); Rojas-Garcia v.

Ashcroft, 339 F.3d 814, 822 (9th Cir. 2003) (no due process violation where failure

to file a brief was caused by counsel’s mistake, as opposed to a deficiency in BIA’s

procedures); cf. Garcia-Cortez v. Ashcroft, 366 F.3d 749, 753-54 (9th Cir. 2004)

(BIA may violate an alien’s due process rights if it summarily dismisses an appeal

for failing to file a brief, where the notice of appeal is sufficiently detailed to put

the BIA on notice of the issues on appeal).

Calzadilla-Tobar’s contentions that the BIA did not sufficiently explain its

2 16-73333 decision or engaged in impermissible factfinding are not supported by the record.

See Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (holding the BIA

adequately considered evidence and sufficiently announced its decision).

We do not reach Calzadilla-Tobar’s unexhausted contention that ineffective

assistance of counsel excused the late filing of the brief. See Vilchiz-Soto v.

Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order) (stating that to the extent

petitioners contend they received ineffective assistance of counsel, the court lacked

jurisdiction because it was not raised before the BIA); Zhang v. Ashcroft, 388 F.3d

713, 721 (9th Cir. 2004) (petitioner must sufficiently put the BIA on notice as to

specific issues so that the BIA has an opportunity to pass on those issues).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 16-73333