                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4883




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 05-4883
                                   ________________

                                 MARCELINO THEN,
                                               Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                               Respondent
                   _______________________________________

                      On Petition for Review of a Decision of the
                           Board of Immigration Appeals
                              (Agency No. A43 502 149)
                    Immigration Judge: Honorable Annie S. Garcy
                    _______________________________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                 October 20, 2006

           BEFORE: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES.

                               (Filed: October 30, 2006)
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      An Immigration Judge (IJ) ordered Marcelino Then removed from the United

States for having been convicted of an aggravated felony. For the same reason, the IJ also

found Then ineligible for cancellation of removal. After the Board of Immigration
Appeals (BIA) dismissed Then’s appeal for failure to file a brief, he petitioned this Court

for review. We will grant Then’s petition for review and remand for further proceedings.

       A native of the Dominican Republic, Then entered the United States in 1992 as a

lawful permanent resident. In October 1996, Then was convicted in New York for

attempted criminal possession of cocaine in the third degree and was sentenced to five

years probation. In December 2003 and February 2005, Then was also convicted in New

York for criminal possession of marijuana in the fifth degree. Based on these

convictions, the government charged Then with removability for having been convicted

of an aggravated felony and a controlled substance offense.

       Then appeared before the IJ for the first time on April 6, 2005, without an attorney.

The IJ granted Then a few continuances to obtain counsel. When he appeared before the

IJ without an attorney again on June 1, 2005, she denied any further continuances and

ordered Then removed. The IJ also ruled that Then was ineligible for cancellation of

removal because his October 1996 conviction constitutes an aggravated felony.

       Still without counsel, Then filed with the BIA a timely notice of appeal indicating

that he would submit a brief. When Then failed to file a brief, the BIA summarily

dismissed his appeal. Then filed the current pro se petition for review with this Court.

After we stayed Then’s removal, the government moved to dismiss the petition for lack of

jurisdiction or to summarily affirm the BIA’s decision. A motions panel of the Court

referred the government’s motion to a merits panel and instructed the government to brief

several issues. The matter is now fully briefed.

                                             2
       We will deny the government’s motion to dismiss for lack of jurisdiction.

According to the government, the BIA’s decision summarily dismissing Then’s appeal is

within the BIA’s discretion and does not implicate a “constitutional claim[] or question[]

of law” subject to our review under 8 U.S.C. § 1252(a)(2)(D).1

       We disagree because the BIA’s decision implicates a reviewable question of law.

The applicable regulation on which the BIA relied provides that the BIA “may summarily

dismiss any appeal” in which the litigant indicates on his notice of appeal that he will file

a brief but then “does not file such brief or statement, or reasonably explain his or her

failure to do so, within the time set for filing.” 8 C.F.R. § 1003.1(d)(2)(i)(E). While this

provision seemingly bestows some discretion on the BIA, this discretion is not unfettered.

A companion regulation instructs that “in order to avoid summary dismissal pursuant to

§ 1003.1(d)(2)(i),” a party “must identify the reasons for the appeal in the Notice of

Appeal.” 8 C.F.R. § 1003.3(b); see Esponda v. United States Attorney General, 453 F.3d

1319, 1322 (11th Cir. 2006). In other words, any discretion granted to the BIA to

summarily dismiss an appeal under § 1003.1(d)(2)(i) is limited by law to situations in

which the notice of appeal does not identify the reasons for the appeal. See Esponda, 453

F.3d at 1322. Whether the BIA erred as a matter of law in dismissing an appeal under



       1
        For the purpose of addressing the government’s argument, we will assume
without deciding that Then’s criminal offenses are the type which restrict our jurisdiction
to review a final order of removal. See 8 U.S.C. § 1252(a)(2)(C). Even so, we retain
jurisdiction to review “constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(D).

                                              3
this regulatory scheme thus presents a reviewable question of law. Cf. Pinho v. Gonzales,

432 F.3d 193, 204 (3d Cir. 2005) (distinguishing between unreviewable decision to grant

discretionary relief and reviewable “purely legal” decision that alien is legally ineligible

for discretionary relief).

       Here, the BIA’s order correctly states that Then indicated on his notice of appeal

that he would file a brief. The order also correctly states that Then did not file a brief.

The order then dismisses the appeal under § 1003.1(d)(2)(i)(E) without mentioning

whether the notice of appeal “identifies the reasons for the appeal” as contemplated by

§ 1003.3(b). If the BIA had examined the notice of appeal, it would have seen Then’s

attempt to articulate his reasons for appeal. (A.R. at 13.) In a box designated for that

specific purpose on Form EOIR-26, Then wrote that he has not been convicted of an

aggravated felony, that he is eligible for cancellation of removal under Section 240A of

the INA, and that the IJ’s decision to the contrary is erroneous. (Id.)

       On its face, the BIA’s order does not acknowledge the regulation which restricts its

discretion to summarily dismiss under § 1003.1(d)(2)(i)(E). We cannot discern from the

order, however, whether the BIA considered the statement of reasons and properly

exercised its discretion, or whether it committed a legal error by failing to consider

Then’s statement of reasons. See Esponda, 453 F.3d at 1322. Under these circumstances,

we must remand to the BIA for further explanation. See Cruz v. Attorney General, 452

F.3d 240, 250 (3d Cir. 2006); Esponda, 453 F.3d at 1323. If on remand the BIA



                                               4
determines that summary dismissal under § 1003.1(d)(2)(i)(E) is impermissible in light of

§ 1003.3(b), the BIA will consider the merits of Then’s appeal.2

      For these reasons, we will grant Then’s petition for review and remand the matter

for further proceedings. We will deny the government’s motion to dismiss for lack of

jurisdiction, and will deny as moot its request for summary action. We express no

opinion on the merits of Then’s claims.




      2
        We acknowledge the government’s argument that Then has waived any issues
regarding the BIA’s summary dismissal by failing to raise them in his brief. While we
agree that Then’s pro se brief does not adequately address the issues, we exercise our
discretionary power under these circumstances to consider the issues. See Bagot v.
Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005) (considering issues notwithstanding waiver).
Throughout removal proceedings, Then has never been assisted by counsel. He appeared
before the IJ and the BIA, and now appears before us, without an attorney. His command
of written English is marginal; his understanding of the legal issues is minimal. These
circumstances give us sufficient pause to decline the government’s invitation to find that
Then waived any arguments related to the BIA’s summary dismissal of his appeal.

                                            5
