Salas v. Ashcroft

48 F. App'x 693

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 11, 2002
• Docket: No. 01-71228, A75-301-258, A75-301-259
• Status: Published

Opinion

MEMORANDUM

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Although Petitioners filed a notice of appeal by counsel, the appeal was never perfected. The appellate brief to the BIA was rejected as untimely and no motion was filed for leave to file an untimely brief, nor was other action taken to obtain review. Because the appeal was not perfected, the BIA did not abuse its discretion in denying relief on the appeal. See Toquero v. Immigration and Naturalization Service, 956 F.2d 193 (9th Cir.1992) (failure to file a brief in support of appeal to the BIA justifies summary affirmance of Immigration Judge’s decision). See also 8 C.F.R. § 3.1(d)(2)(i)(E) (allowing summary dismissal of appeal where party indicates that they will file a brief in support of the appeal and does not do so in a timely manner). Accordingly, we need not reach the question whether the new one-judge appellate process within the BIA was constitutionally permissible.

Petitioner has not identified any way in which the result would have been different, either on the untimeliness or on substantive issues, had the earlier 3-judge process still been in place, so no prejudice is identified.

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.