                                                                           FILED
                              NOT FOR PUBLICATION                           AUG 28 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



NOEMI MONGES-GARCIA,                             No. 10-71923

                Petitioner,                      Agency No. A072-991-167

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney
General,

                Respondent.



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

                              Submitted August 6, 2012 **
                               San Francisco, California

Before:         KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and
                KORMAN, Senior District Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

          ***The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
                                                                                  page 2

      We dismissed this petition last year because Noemi Monges-Garcia failed to

submit an opening brief. We reinstated the petition but must again dismiss because

the opening brief doesn’t comply with our rules and fails to raise a specific and

distinct challenge to the BIA’s order dismissing her appeal.

      The opening brief is very nearly the same counsel submitted to us in 2004,

before we remanded this case to the BIA. See Monges-Garcia v. Gonzales, 228

Fed. App’x 665, 667 (9th Cir. 2007). It adds a sentence and modifies another to

tell us the agency was “incorrect” and “should be overruled,” but it’s otherwise

cut-and-pasted from the previous filing. Our rules don’t allow parties to “append

or incorporate by reference briefs submitted to . . . this Court in a prior appeal,” 9th

Cir. R. 28-1(b), and this case shows why. Petitioner’s recycled brief raises an issue

that was resolved before remand, fails to address the agency’s latest decision and

reasoning and doesn’t even cite 8 C.F.R. § 1003.23(b)(1), the regulation we asked

the BIA to interpret. So far as we can tell, petitioner’s attorney didn’t read the

agency’s decision.

      The government called Monges-Garcia’s attention to the defects in her brief,

arguing that it didn’t comply with Fed. R. App. P. 28(a) and failed to “specifically

and distinctly” challenge the agency’s decision. Resp’t Br. 12–14; see also Castro-

Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005). Yet she never filed a
                                                                                  page 3

reply and “made no attempt to correct the glaring deficiencies in the brief.” Han v.

Stanford Univ., 210 F.3d 1038, 1040 (9th Cir. 2000).

       Dismissal of a petition for insufficient briefing may in some circumstances

have harsh results for a petitioner, especially “when the fault lies solely with his or

her counsel.” Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007). But Monges-

Garcia informs us that she has an alternate avenue of relief: The government is

willing to file a joint motion to reopen her in absentia deportation order. Such joint

motions are not subject to the time limits on other motions to reopen, see 8 C.F.R.

§ 1003.2(c)(3)(iii), 1003.23(b)(4)(iv), and may provide Monges-Garcia with the

relief she seeks.

       Counsel shall not charge petitioner, directly or indirectly, for the attorney’s

fees and costs associated with this petition. Within 30 days of this order, counsel

shall file a certificate stating under oath that he has discussed this matter with his

client and has refunded any money he may have charged her for working on this

petition.

       On July 30, 2012, Monges-Garcia filed a motion for extension of time to

hear oral argument. On July 31, 2012, we ordered this case submitted on the

briefs. We therefore deny the motion as moot.

       DISMISSED.
