Arriaza-Lemus v. Attorney General of the United States , 517 F. App'x 74 ( 2013 )

GLD-192 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1418
___________
JOSE LUIS ARRIAZA-LEMUS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A094-244-702)
Immigration Judge: Honorable Dorothy Harbeck
____________________________________
Submitted on the Motion for a Stay of Removal
and for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 11, 2013
Before: FUENTES, FISHER and GREENBERG, Circuit Judges
(Opinion filed: April 24, 2013)
___________
OPINION
___________
PER CURIAM
The Government charged Jose Luis Arriaza-Lemus, a native and citizen of
Guatemala, as removable for being present in the United States without having been
admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). Arriaza-Lemus conceded the
charge and sought cancellation of removal. See 8 U.S.C. § 1229b(b). The Immigration
Judge (“IJ”) denied his application, concluding that he had not shown that a qualifying
relative would suffer exceptional and extremely unusual hardship from his removal. See
id. at § 1229b(b)(1)(D).
Arriaza-Lemus, through counsel, filed a timely appeal with the Board of
Immigration Appeals (“BIA”). In his accompanying “reasons for appeal,” he argued that
the IJ’s decision was wrong because he had met his burden to show eligibility for asylum.
A.R. 37. He also indicated his intention to file a separate written brief or statement. A.R.
35. His counsel requested, and was granted, an extension of time to file a brief. A.R. 9,
7. She appears to have tried to submit a brief after the deadline had passed, but, after it
was rejected, she did not resubmit it with a “motion for consideration of [a] late-filed
brief” that the BIA advised was necessary. A.R. 5. The BIA summarily dismissed the
appeal, discussing what had occurred since the IJ ruled and noting that Arriaza-Lemus
had never filed a brief and had not “meaningfully apprise[d]” the BIA of the basis for his
appeal. A.R. 3 (also citing 8 C.F.R. §§ 1003.1(d)(2)(i)(A), (E)).
Arriaza-Lemus filed a petition for review and a motion for a stay of removal. In
support of his motion, he contends that the BIA “did not follow the precedents of the
[BIA] regarding hardship.” The Government opposes the stay motion and moves to
summarily deny the petition.
2
First, to the extent that Arriaza-Lemus challenges the ruling on cancellation of
removal, we lack jurisdiction to consider the discretionary decision, including the
“exceptional and extremely unusual” hardship determination on which it was based.1 See
8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Att’y Gen. of the U.S., 619 F.3d 230, 232 (3d Cir.
2010).
Because we retain jurisdiction to review constitutional claims or issues of law, see
8 U.S.C. § 1252(a))(2)(D); Patel, 619 F.3d at 232, we will consider the only other
apparent issue, whether the BIA erred in summarily dismissing Arriaza-Lemus’s agency
appeal for failing to specify the reasons for the appeal, 8 C.F.R. § 1003.1(d)(2)(i)(A), and
for failing to file a brief or statement in support of the appeal (or to provide a reasonable
explanation for not filing one) after indicating on the notice of appeal that such a brief or
statement would be forthcoming, 8 C.F.R. § 1003.1(d)(2)(i)(E). Because Arriaza-Lemus
presents no due process challenge to the regulation, we will review this aspect of the
BIA’s decision 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).
We conclude that the BIA’s decision was not “arbitrary, irrational, or contrary to
law.” Barker v. Ashcroft, 382 F.3d 313, 316 (3d Cir. 2003) (citation and quotation marks
omitted). Arriaza-Lemus, who was represented by counsel, did not apprise the BIA of
the grounds for his appeal. Although he applied for, and was denied, cancellation of
1
We nonetheless note that the BIA, in deciding the appeal on procedural grounds,
did not interpret precedents regarding hardship.
3
removal, he cited standards and cases relating to asylum in his notice of appeal. Then,
despite indicating that he would file a brief or statement in support of his appeal (and
being warned that the failure to file one could subject his appeal to dismissal), he never
filed a timely brief.2 For these reasons, we see no abuse of discretion in the application
of the pertinent regulations to Arriaza-Lemus’s administrative appeal.
In sum, we dismiss this petition to the extent Arriaza-Lemus seeks to challenge an
unreviewable decision. To the extent we have jurisdiction over this petition, we conclude
that it presents no substantial issue, see 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6, and we
deny it. The Government’s motion for summary action is granted. Arriaza-Lemus’s
motion for a stay of removal is denied.
2
Although he (through counsel) tried to submit one after the extended deadline
had passed, he took no further action after it was rejected. Despite being notified of the
requirement, and despite the long passage of time between the notice and the BIA’s
ultimate ruling, he never filed a motion for consideration of a late-filed brief to explain
why he did not meet the deadline.
4