                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-2-2009

Hoxha v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 07-2940




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PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                   Case No: 07-2940

         ILIR HOXHA; FJORALBA HOXHA;
                BRENDA HOXHA,

                               Petitioners

                                 v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE
 UNITED STATES;EMILIO GONZALEZ, DIRECTOR,
UNITED STATES CITIZENSHIP AND IMMIGRATION
  SERVICES; UNITED STATES DEPARTMENT OF
 JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION
   REVIEWBOARD OF IMMIGRATION APPEALS,

                               Respondents


       On Petition for Review of an Order of the
             Board of Immigration Appeals
 BIA Nos. A79-433-629, A79-433-630, and A79-433-631.
         Immigration Judge: Michael W. Straus


   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

                           1
                      September 9, 2008

Before: SCIRICA, Chief Judge, McKEE, and SMITH, Circuit
                         Judges

                   (Filed: March 02, 2009)

Douglas A. Grannan
Law Office of Greg Prosmushkin
9637 Bustleton Avenue
Philadelphia, PA 19115-0000
Counsel for Petitioners

Monica G. Antoun
Paul F. Stone
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044-0000
Counsel for Respondent


                          OPINION


SMITH, Circuit Judge.

      Petitioners Ilir Hoxha (Hoxha), his wife Fjoralba, and his
daughter Brenda, petition for review of the order of the Board


                               2
of Immigration Appeals (BIA), which affirmed the denial by the
Immigration Judge (IJ) of Hoxha’s application for asylum and
withholding of removal.1 Hoxha contends that we should grant
the petition for review because the IJ abused his discretion by
denying a motion by counsel for a continuance.                The
government asserts that we lack jurisdiction to review this
contention because, although Hoxha raised this point in his
Notice of Appeal filed with the BIA, he did not address the issue
in the brief he filed thereafter. In short, the government asserts
that Hoxha failed to exhaust the issue. For the reasons set forth
below, we conclude that the issue was exhausted and that we
have jurisdiction. Nonetheless, because the BIA did not address
whether the IJ erred by denying the motion for a continuance,
we will remand this case to the BIA for it to address that issue
in the first instance pursuant to I.N.S. v. Ventura, 537 U.S. 12,
17 (2005).

                                I.

       Ilir, Fjoralba, and Brenda Hoxha are natives and citizens
of Albania. They arrived in Miami, Florida in January of 2002,
and requested asylum, withholding of removal, and relief under
the Convention Against Torture (CAT) as applicants under the


       1
        Fjoralba Hoxha’s and Brenda Hoxha’s claims are
derivative of Ilir Hoxha’s claims for asylum and withholding of
removal. For that reason, we discuss the proceedings as they
pertain to Ilir Hoxha’s application.

                                3
Visa Waiver Pilot Program. Their claims were referred to an IJ.
Hoxha retained Florida counsel, who filed a motion to transfer
venue to Pennsylvania, where his sisters lived. The motion was
granted, and a hearing was scheduled in Philadelphia for
September 5, 2002. After several continuances and the
appearance of new counsel on two occasions, Hoxha appeared
for a hearing before an IJ on December 6, 2005. At that time,
his third attorney moved to withdraw in the presence of yet
another attorney, who was ready to enter his appearance on
Hoxha’s behalf. The IJ granted the motion to withdraw, but
denied the new counsel’s request for one more continuance. At
the conclusion of the hearing, the IJ denied Hoxha’s application
for asylum, withholding of removal, and the protections of the
CAT.

       Hoxha’s counsel filed a timely appeal to the BIA. The
Notice of Appeal listed four reasons for the appeal. The first
reason stated: “The Immigration Judge erred in denying [the]
request for a continuance as his previous attorney withdrew just
prior to his individual hearing. For this reason, [Hoxha’s]
counsel was not able to assist him in preparing his claim.” The
other three issues pertained to the merits of Hoxha’s claim for
asylum. In response to an inquiry in item eight of the Notice of
Appeal form, Hoxha indicated that he intended to file a separate
written brief.

      Consistent with his response in the Notice of Appeal
form, Hoxha filed a brief in support of his appeal. The brief

                               4
addressed the merits of his claim for asylum and withholding of
removal. It was silent, however, as to whether the denial of the
continuance was error.

       On appeal, the BIA affirmed the IJ’s denial of asylum
and withholding of removal. It did not address in its opinion
Hoxha’s contention that the IJ had erred by denying the motion
for a continuance.

        This timely petition for review followed. Hoxha does not
take issue with the BIA’s decision denying him asylum and
withholding of removal. He argues only that the IJ abused his
discretion by denying the motion made by Hoxha’s new counsel
for a continuance. Because this issue was not addressed in the
brief filed with the BIA, the government asserts that the issue
has not been exhausted and that jurisdiction is lacking.

                               II.

        Section 1252(d) of the Immigration and Nationality Act
provides that the courts of appeals “may review a final order of
removal only if–(1) the alien has exhausted all administrative
remedies available to the alien as of right.” 8 U.S.C.
§ 1252(d)(1). In Abdulrahman v. Ashcroft, 330 F.3d 587 (3d
Cir. 2003), we declared that this statutory provision required an
alien “to raise or exhaust his or her remedies as to each claim or
ground for relief [before the BIA] if he or she is to preserve the
right of judicial review of that claim.” Id. at 595. In

                                5
scrutinizing Abdulrahman’s Notice of Appeal and his brief, we
were unable to find any suggestion that he challenged at the
administrative level the specific ground raised in his petition for
review before this Court.2 As a consequence, we determined
that jurisdiction was lacking and that “review on that ground
[had] been foreclosed.” Id.3

       In Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004), we
considered whether we had jurisdiction to review an alien’s due
process challenge because, although the due process issue was
clearly raised in the Notice of Appeal filed with the BIA, the
alien had failed to file a supporting brief. We refused to hold
that Bhiski had failed to exhaust his claim under § 1252(d)(1) as


       2
        Abdulrahman argued before the BIA that the IJ’s
findings, including the adverse credibility determination, were
not supported by substantial evidence. 330 F.3d at 594. Before
this Court, Adbdulrahman asserted that the IJ erred by applying
to his asylum claim the more stringent standard governing
claims for withholding of removal. Id.
       3
        As we explained in Lin v. Attorney General, 543 F.3d
114 (3d Cir. 2008), there remains a question as to whether issue
exhaustion as set forth in Abdulrahman is a jurisdictional
requirement or simply a mandatory rule. Id. at 120 n.6.
Nonetheless, as we noted, “short of a review en banc, we must
dutifully apply [our] precedent,” which holds that issue
exhaustion as required by § 1252(d)(1) is a jurisdictional rule.
Id.

                                6
he had “made some effort to exhaust, albeit insufficient . . .” and
there was “nothing in the regulatory scheme that compel[led] the
conclusion.” Id. at 367. Because the issue was exhausted, we
concluded that we had jurisdiction to consider the due process
challenge.

        We have yet to consider the question presented here:
whether we have jurisdiction to review an issue raised by a party
in a notice of appeal, but not addressed in the party’s brief to the
BIA.4 After considering the case law and the applicable
regulation, we conclude that the identification of an issue in a
party’s notice of appeal satisfies the statutory requirement of
exhaustion provided that the description of that issue in the
notice sufficiently apprises the BIA of the basis for the appeal.
Failure to address that issue in the brief subsequently filed with
the BIA will not deprive us of jurisdiction.

                                A.

        As we noted above, in Bhiski, we considered whether
jurisdiction was lacking because the alien failed to file a brief in
support of his appeal to the BIA. 373 F.3d at 368. Our
analysis in that case began with the regulation governing the
filing of a notice of appeal with the BIA. 8 C.F.R. § 1003.3.
We emphasized that the regulation did not mandate the filing of


       4
       We review “jurisdictional matters de novo.” Singh v.
Ashcroft, 383 F.3d 144, 151 (3d Cir. 2004).

                                 7
a brief with the BIA. Instead, it specified that the appellant
“must identify the reasons for the appeal in the Notice of
Appeal,” and must indicate if he or she would be filing a brief
in support of his or her appeal. 8 C.F.R. § 1003.3(b). This latter
requirement, we observed, “certainly suggests that filing a brief
is optional rather than mandatory.” 373 F.3d at 368.

        We also noted that these observations were consistent
with the fact that the Notice of Appeal Form EIOR–26
contained a warning in a box, instructing that the “failure to
specify the factual or legal basis for the appeal may lead to
summary dismissal . . . unless you give specific details in a
timely separate written brief or statement filed with the Board.”
Id. (quoting Form EIOR–26). Thus, the appeal form also
“indicate[d] the optional nature of the brief.” Id. As additional
support, we cited the BIA’s own case law, which acknowledged
that a brief may be essential when an issue raised is complex.
Id. (citing Matter of Valencia, 19 I & N. Dec. 354, 355 (BIA
1986)). We concluded that “no brief is required as long as the
notice of appeal does precisely what it is intended to do–place
the BIA on notice of what is at issue.” Id. Because Bhiski’s
Notice of Appeal sufficiently raised the issue on which he
sought judicial review, we determined that the issue was
exhausted and that we had jurisdiction.

      In Yan Lan Wu v. Ashcroft, 393 F.3d 418 (3d Cir. 2005),
the government argued that jurisdiction was lacking because
Yan Lan Wu had failed to put the BIA on notice of her claim

                                8
that the IJ erred by basing his decision on only her airport
interview. Yan Lan Wu’s Notice of Appeal argued that the IJ
erred by ignoring certain facts pertinent to her claim of
persecution, namely that her father had been imprisoned and
tortured by the government, and by finding that she feared the
local people, rather than the police or government. In her
supporting brief, Wu asserted that she had presented sufficient
evidence of both past persecution and her fear of future
persecution. We reiterated that in Bhiski we held that “so long
as an immigration petition makes some effort, however
insufficient, to place the Board on notice of a straightforward
issue being raised on appeal, a petitioner is deemed to have
exhausted her administrative remedies.” Id. at 422 (discussing
Bhiski, supra). Applying this standard, we acknowledged that
Yan Lan Wu did not explicitly argue that the IJ erred by
considering only her airport interview. Nonetheless, we
determined that the contention in her Notice of Appeal that the
IJ’s decision was “not supported by substantial evidence within
the record” was sufficient to put the BIA “on notice that there
was a claim of error hovering around the [IJ’s] findings and . .
. exclusive reliance on the airport interview . . . .” Id.

       Consistent with our approach employed in Yan Lan Wu,
we scrutinized both the Notice of Appeal and the brief submitted
to the BIA in Lin v. Attorney General, 543 F.3d 114 (3d Cir.
2008), to determine whether Lin had challenged the IJ’s adverse
credibility determination. Id. at 122. We concluded that neither
Lin’s Notice of Appeal nor his brief alerted the BIA that he was

                               9
challenging the IJ’s credibility finding. We found jurisdiction
to exist, however, because the BIA had sua sponte considered
and sustained the IJ’s adverse credibility finding. Id. at 123–25.

        Bhiski, Yan Lan Wu, and Lin instruct that our focus must
be on the nature of the notice provided to the BIA by both the
Notice of Appeal and any brief filed with the BIA. This
approach is consistent with “the liberal exhaustion policy
outlined in Bhiski and Yan Lan Wu, [that] an alien need not do
much to alert the Board that he is raising an issue.” Joseph v.
Attorney General, 465 F.3d 123, 126, (3d Cir. 2006). Plainly,
the nature of the notice provided is central to the inquiry of
exhaustion because only notice that is legally sufficient will
afford the BIA an opportunity to resolve the controversy in the
first instance. See Bonhometre v. Attorney General, 414 F.3d
442, 447 (3d Cir. 2005) (instructing that the determination of
whether exhaustion is required under § 1252(d)(1) requires that
“(1) the alien’s claim was within the jurisdiction of the BIA to
consider and implicated agency expertise, and (2) the agency
was capable of granting the remedy sought by the alien”); see
also Weinberger v. Salfi, 422 U.S. 749, 765 (1975) (observing
that administrative exhaustion “prevent[s] premature
interference with agency processes, so that the agency may
function efficiently and so that it may have an opportunity to
correct its own errors, to afford the parties and the courts the
benefit of its experience and expertise, and to compile a record
which is adequate for judicial review”).



                               10
       Accordingly, we conclude that our case law does not
foreclose judicial review of an issue that was sufficiently raised
in a notice of appeal to the BIA, but never argued in the brief
subsequently submitted to the agency.

                                B.

        Regulation § 1003.3 governs the filing of a notice of
appeal with the BIA. 8 C.F.R. § 1003.3. As we noted in
Bhiski, that regulation directs that the “‘party taking the appeal
must identify the reasons for the appeal in the Notice of Appeal
(Form EOIR 26 or Form EIOR 29) or in any attachments
thereto, in order to avoid summary dismissal pursuant to §
1003.1(d)(2)(i).’” 373 F.3d at 368 (quoting 8 C.F.R. §
1003.3(b)). Although the regulation provides that the party
taking the appeal must indicate if a separate written brief will be
filed in support of the appeal, the paragraph pertaining to the
briefs for appeals from an IJ’s decision specifies only where and
when such briefs shall be filed. 8 C.F.R. § 1003.3(c). The
regulation is silent as to what the brief must contain. Compare
8 C.F.R. § 1003.3(c) with Fed. R. App. P. 28(a) (listing what an
appellant’s brief “must contain”). Accordingly, there is no
regulatory directive that clearly instructs an appellant that it
must include in any brief filed with the BIA any issues initially
identified in the notice of appeal. More importantly, the
regulation does not apprise the party taking the appeal that
failure to address in an optional brief an issue identified with
clarity in a notice of appeal filed with the BIA will preclude

                                11
review of the BIA’s adverse ruling on that issue.

        Consistent with regulation § 1003.3(b), the Notice of
Appeal Form EIOR–26 completed by Hoxha instructed in item
six that the party filing the appeal must “[s]tate in detail the
reasons for this appeal.” Like the regulation, the notice of
appeal form warned that the appellant “must clearly explain the
specific facts and law on which you base your appeal” and that
the appeal may be summarily dismissed if the BIA “cannot tell
from this Notice of Appeal . . . why you are appealing.”
Nothing in the form, or the briefing notice that was issued to
Hoxha upon the completion of the transcript, cautions that the
brief must include all issues previously identified in the notice
of appeal to preserve an issue for judicial review. Rather, the
warning on the EIOR appeal form advises the party filing the
appeal that it is the identification of the particular issues
raised–the notice of how the IJ erred–that is critical to ensuring
that the BIA is able to conduct a meaningful review of the IJ’s
decision.

       As in Bhiski, 373 F.3d at 367–68, we hold that the
regulatory scheme governing appeals to the BIA does not
require a party to preserve the right to judicial review of an issue
identified in a notice of appeal by also addressing that issue in
any brief filed with the BIA.

                                C.

       Case law in both the Sixth and Ninth Circuits is contrary
to our holding. Abebe v. Mukasey, ___ F.3d ___, 2009 WL
50120 *3 (9th Cir. 2009) (en banc); Hassan v. Gonzales, 402
F.3d 429, 433 n.5 (6th Cir. 2005); Hasan v. Ashcroft, 397 F.3d


                                12
417, 420 (6th Cir. 2005); Ramani v. Ashcroft, 378 F.3d 554, 558
(6th Cir. 2004). Having examined these cases, we do not find
them persuasive.

        Neither the alien in Hasan v. Ashcroft, 397 F.3d at 420,
nor the alien in Ramani, 378 F.3d at 558, ever raised the issue
on which they sought judicial review in any document filed with
the BIA. In Hassan v. Gonzales, the Sixth Circuit noted that an
issue is waived and unexhausted if, though identified in a notice
of appeal, it was never raised in the brief filed with the BIA.
402 F.3d 433 n.5. But the Sixth Circuit did not apply the
principle of waiver, rendering its discussion on the subject
dictum. Instead, without regard to whether the issue was raised
in the brief filed with the BIA, the Court determined that the
issue was exhausted because the BIA reached the merits of the
issue in its decision. 402 F.3d at 433; accord Lin, 543 F.3d at
123-25.

        In Abebe v. Mukasey, ___ F.3d ___, 2009 WL 50120 (9th
Cir. 2009) (en banc), the Ninth Circuit relied on the principle of
waiver in overruling Ladha v. I.N.S., 215 F.3d 889, 903 (9th Cir.
2000). The Abebe Court held that an alien petitioner did not
exhaust his claim of withholding of removal because, though
raised in his notice of appeal, the issue was not addressed in the
brief he filed with the BIA. Abebe, 2008 WL 50120 *3. As
support for its holding, the Ninth Circuit cited to a footnote in
our decision in Bowers v. National Collegiate Athletic
Association, 475 F.3d 524, 535 n. 11 (3d Cir. 2007). Bowers,
however, concerned an appeal before this Court, not an
administrative appeal before the BIA. The differences in
appellate procedure before the BIA and before a federal
appellate court are substantial and obvious. For that reason, we


                               13
are not persuaded that the doctrine of waiver as applied in the
courts of appeals should inform our analysis.

        We cannot ignore that our federal rules require the filing
of a notice of appeal that “designates the judgment, order, or
part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). The
appellate rules, however, do not require an appellant at this
initial step to specify the facts and law on which an appeal is
based. Instead, Appellate Rule 28(a) directs that these matters
must be set forth in the brief that is submitted to the court after
the preparation of the record. Fed. R. App. P. 28(a). Rule 28(a)
further specifies that the appellant must file a brief which “must
contain” not only an identification of the issues presented for
review, but also “the facts relevant to the issues” and a
supporting argument for each issue, with citation to legal
authority. Fed. R. App. P. 28(a)(5), (7), and (9). In other words,
our appellate procedure mandates that the appellant must
provide in a single document–the appellate brief–both the issues
for review and the supporting argument. Failure to follow this
procedure is fatal to appellant’s cause. See Laborers’ Int’l
Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)
(“An issue is waived unless a party raises it in its opening brief,
and for those purposes a passing reference to an issue. . . will
not suffice to bring that issue before this court.”); Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (citing Appellate
Rule 28(a) and reiterating that “[i]t is well settled that if an
appellant fails to comply with these requirements on a particular
issue, the appellant normally has abandoned and waived that
issue on appeal and it need not be addressed by the court of
appeals”).

       By contrast, the regulation governing appeals to the BIA


                                14
requires that the appellant identify in the initial notice of appeal
the specific reasons for the appeal, 8 C.F. R. § 1003.3(b), and
indicate whether a brief will be filed. The Notice of Appeal
Form EIOR–26 urges the appellant to “clearly explain the
specific facts and law on which you appeal” so that the BIA can
“tell . . . why you are appealing.” The appellant is advised to
“[a]ttach additional sheets if necessary” to satisfy this specificity
requirement. If the party taking the appeal indicates an intent to
file a brief, the transcript of testimony is prepared and provided
for use in writing the brief to the BIA. Unlike Appellate Rule
28, however, regulation § 1003.3(c) is devoid of any instruction
regarding what the brief must contain. There is nothing that
demands that the brief reiterate the issues initially identified in
the notice of appeal in order to preserve a right to judicial
review if the appellant is unsuccessful before the BIA.

                                 D.

        Our “liberal exhaustion policy” and the regulatory
requirements for filing an appeal instruct that the notice of
appeal must set forth sufficient facts and law to inform the BIA
of the basis for the appeal. This focus on the specificity of the
notice of appeal and whether it sufficiently identifies the alleged
error is consistent with the purpose of exhaustion which is to
ensure that the agency is given an opportunity to resolve issues
raised before it prior to any judicial intervention. Bonhometre,
414 F.3d at 447. Here, Hoxha’s Notice of Appeal explicitly
claimed that the denial of the request for a continuance was
error. This assertion of error concerned the process afforded by
the IJ. The issue of whether Hoxha received sufficient process
was clearly a matter within the BIA’s expertise and for which it



                                 15
could grant a remedy.5 Having been apprised by the Notice of
Appeal that the IJ allegedly erred by denying the continuance,
the BIA should have addressed the issue. Thus, we conclude
that Hoxha’s Notice of Appeal, which provided sufficient notice
to the BIA of his claim that the IJ erred in denying his
continuance, satisfied the exhaustion requirement in
§ 1252(d)(1).

                               III.

        In sum, we conclude that the exhaustion of an issue for
purposes of 8 U.S.C. § 1252(d)(1) does not require an appellant
before the BIA, who has clearly identified an issue in his notice
of appeal, to reiterate and to address that same issue in an
optional brief. Accordingly, the issue of the propriety of the IJ’s
denial of a continuance, which was identified clearly in the
Notice of Appeal Hoxha filed with the BIA, was exhausted
before the BIA. Although we have jurisdiction over the issue,
8 U.S.C. § 1252(a) and (d)(1), we are unable to review it
because the BIA failed to address it. For that reason, we will
remand this case so that the BIA may address the issue in the
first instance as required by I.N.S. v. Ventura, 537 U.S. 12, 17
(2005).



       5
         Hoxha’s claim that the IJ erred by denying the
continuance could be construed as a claim that he was deprived
of his right to due process. Although we have jurisdiction over
constitutional claims under 8 U.S.C. § 1252(a)(2)(D), Hoxha
would still have to satisfy the exhaustion requirement as his
claim concerned procedure, which is a matter within the BIA’s
expertise and for which it could have fashioned a remedy.
Bonhometre, 414 F.3d at 447.

                                16
