Omar Castillo-Ponce v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: GREENAWAY JR., SHWARTZ and *SIMANDLE, Circuit Judges. Total Pages: 7. Judge: SHWARTZ Authoring. *Honorable Jerome B. Simandle, Chief District Judge of the United States District Court for the District of New Jersey, sitting by designation.

Case: 15-3985

Document: 003112596392

Page: 1

Date Filed: 04/18/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-3985
______________
OMAR ALEXANDER CASTILLO-PONCE,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
______________
Petition for Review of an Order of the Board of Immigration Appeals
(Agency No. A088-649-274)
Immigration Judge: Hon. Miriam K. Mills
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 14, 2017
______________
Before: GREENAWAY, JR., SHWARTZ, Circuit Judges, and SIMANDLE, Chief
District Judge.*
(Filed: April 18, 2017)
______________
OPINION**
______________

*

Honorable Jerome B. Simandle, Chief District Judge of the United States District
Court for the District of New Jersey, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

Case: 15-3985

Document: 003112596392

Page: 2

Date Filed: 04/18/2017

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.
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 removability
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
2

Case: 15-3985

Document: 003112596392

Page: 3

Date Filed: 04/18/2017

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 I-589 relief based on
gang-resistor particular social group (PSG). The BIA dismissed and
Respondent appealed to the Third Circuit. Following issuance of
3

Case: 15-3985

Document: 003112596392

Page: 4

Date Filed: 04/18/2017

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 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 “Yes” 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.

4

Case: 15-3985

Document: 003112596392

Page: 5

Date Filed: 04/18/2017

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.
II1
We must decide whether the BIA acted properly in summarily dismissing CastilloPonce’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.
§ 1003.3(b). The BIA “may summarily dismiss any appeal or portion of any appeal in
any case in which . . . [t]he party concerned fails to specify the reasons for the appeal on
Form EOIR-26 . . . (Notice[ ] of Appeal) or other document filed therewith.” Id.
§ 1003.1(d)(2)(i)(A). The BIA may also summarily dismiss an appeal if “[t]he party
concerned indicates on Form EOIR-26 . . . that he or she will file a brief or statement in
1

The IJ had jurisdiction pursuant to 8 C.F.R. § 1240.1(a), and the BIA had
jurisdiction pursuant to 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(1).
5

Case: 15-3985

Document: 003112596392

Page: 6

Date Filed: 04/18/2017

support of the appeal and, thereafter, does not file such brief or statement, or reasonably
explain his or her failure to do so, within the time set for filing.” Id. § 1003.1(d)(2)(i)(E).
The BIA acted within its discretion when it summarily dismissed Castillo-Ponce’s
appeal pursuant to § 1003.1(d)(2)(i)(A) and (E) because he did not specify the reasons for
his appeal in his Notice of Appeal and did not timely file a brief or statement or explain
his failure to do so.
First, in his Notice of Appeal, Castillo-Ponce only briefly covered the procedural
history of his case; mentioned the BIA’s decisions in Matter of S-E-G-, 24 I. & N. Dec.
579 (B.I.A. 2008), and Matter of M-E-V-G-, 26 I. & N. Dec. 227 (B.I.A. 2014), on which
the IJ relied in its 2014 order; and stated that he “claims error in [the] IJ’s denial of his
PSG.” App. II at 34; A.R. 29. Although the BIA was likely aware of the general issues
involved in his case based on our remand order, and Castillo-Ponce’s briefs on remand to
the BIA and IJ concerning his claimed PSG, the BIA is not required to scour the record
and guess what errors Castillo-Ponce believed the IJ committed. Because the regulations
notified Castillo-Ponce that he was required to set forth his reasons for the appeal and
identify the factual findings or legal conclusions he contested, and he failed to do so, we
cannot say that the BIA abused its discretion by summarily dismissing his appeal on the
ground that his Notice of Appeal was deficient. See Singh v. Ashcroft, 361 F.3d 1152,
1157 (9th Cir. 2004) (“In cases where the petitioner’s description of the grounds for
appeal in the Notice of Appeal lacks the requisite specificity, we have consistently upheld
the BIA’s exercise of this authority [to summarily dismiss an appeal].”).

6

Case: 15-3985

Document: 003112596392

Page: 7

Date Filed: 04/18/2017

Second, the BIA acted properly in summarily dismissing the appeal because
§ 1003.1(d)(2)(i)(E) authorizes the BIA to summarily dismiss an appeal based on an
appellant’s failure to file a brief or statement or explain why he failed to do so. CastilloPonce indicated that he intended to file a brief and received several warnings that his
appeal could be summarily dismissed if he did not. Given the regulation, warnings, and
Castillo-Ponce’s failure to file a brief or provide an explanation for why he did not do so,
we cannot say that the BIA’s summary dismissal was an abuse of discretion. See Rioja,
317 F.3d at 515-16 (“The BIA was within its statutorily designated discretion to
summarily dismiss [petitioner’s] appeal after he indicated on the notice of appeal form
that a separate brief or statement would be filed and then failed to submit such brief or
statement before the filing deadline.”).
III
For the foregoing reasons, we will deny the petition.

7