                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-1645



FRANCIS BOVOVO,

                                                          Petitioner,

          versus

JOHN D. ASHCROFT, Attorney General,

                                                          Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals. (A79-243-250)


Argued:   September 28, 2004             Decided:   December 17, 2004


Before MICHAEL and MOTZ, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


Petition granted by unpublished per curiam opinion.


ARGUED: Bokwe Godwill Mofor, Silver Spring, Maryland, for
Petitioner. Jamie M. Dowd, UNITED STATES DEPARTMENT OF JUSTICE,
Office of Immigration Litigation, Washington, D.C., for Respondent.
ON BRIEF: Peter D. Keisler, Assistant Attorney General, Civil
Division, Linda S. Wendtland, Assistant Director, Michelle R.
Thresher, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Petitioner, Francis Bovovo (“Bovovo”), seeks review of an

Order of the Board of Immigration Appeals (“Board”) denying his

Motion to Reconsider the Board’s summary dismissal of his appeal

for failure to file a brief.   For the following reasons, we grant

the petition, vacate the Board’s Order denying Bovovo’s Motion to

Reconsider, and remand to the Board for further findings consistent

with this opinion.

     Bovovo, a native and citizen of Cameroon, arrived in the

United States in April 2002.    Immediately upon his arrival, the

United States detained Bovovo and commenced removal proceedings.

Bovovo conceded removability and sought relief in the form of

political asylum, withholding of removal, and protection under the

Convention Against Torture.    After a hearing on the merits of

Bovovo’s asylum-related applications, the Immigration Judge issued

an oral decision denying all relief.1

     Bovovo timely appealed the decision of the Immigration Judge

to the Board by submitting a Notice of Appeal (“Form EOIR-26").

Item 4 on Form EOIR–26 conspicuously states that “[t]he failure to


     1
      The Immigration Judge noted several inconsistencies in
Bovovo’s testimony and his statements to immigration officials when
he attempted to enter the United States, and found him to be an
incredible witness.    The Immigration Judge also found, in sum,
that, even if the credibility findings were to be reversed by a
higher court, Bovovo did not meet his burden of demonstrating that
he had a well-founded fear of persecution or that there was a clear
probability of him being tortured if he was returned to Cameroon.


                                 2
specify the factual or legal basis for the appeal may lead to a

summary dismissal without further notice, unless you give specific

details in a timely, separate written brief or statement filed with

the board.”   In the space below this warning, Bovovo stated in some

detail his reasons for appealing the decision of the Immigration

Judge.2

     In addition, Bovovo checked the box on Item 6 of Form EOIR-26

indicating that he “will” file a separate written brief in support

of his appeal.     According to Bovovo, this was done inadvertently.

A conspicuous warning appears directly beneath Item 6 stating that

the appeal “may be summarily dismissed if you indicate in Item #6

that you will file a separate written brief or statement and,

within the time set for filing, you fail to file the brief or

statement and do not reasonably explain such failure.”3

     On November 4, 2002, the Board sent Bovovo a transcript of the

testimony   from   the   hearing,   a   copy   of   the   decision   of   the

Immigration Judge, and a briefing schedule indicating that Bovovo’s

brief was due on November 25, 2002.       On the briefing schedule was

another warning reminding Bovovo that “[i]f you fail to file the




     2
      In three separate paragraphs in the space provided on Form
EOIR–26, Bovovo appears to identify findings of fact and
conclusions of law that are challenged.     In addition, Bovovo
supports his contentions with case law.
     3
      Bovovo signed and dated the form on the signature line
located directly beneath the warning for Item 6.

                                    3
brief or statement within the time set for filing in this briefing

schedule, the Board may summarily dismiss your appeal.”

     It is undisputed that Bovovo never filed an appeal brief,

never inquired about the status of his case, and never informed the

Board of any intent not to file a brief.     On January 22, 2003, the

Board    summarily   dismissed   Bovovo’s   appeal   citing   8   C.F.R.

3.1(d)(2)(i)(E) (now set forth at 8 C.F.R. 1003.1(d)(2)(i)(E)

(2003)), which permits the Board to summarily dismiss an appeal

when a brief is not filed after a party indicates that one will be

filed.    No other reason for the summary dismissal was given.4

Bovovo explained that, because he had detailed the factual and

legal basis of the appeal and provided controlling authorities on

Form EOIR-26 , he deemed it unnecessary to file a separate brief.

     Bovovo filed a Motion to Reconsider on January 30, 2003.         On

May 1, 2003, the Board denied Bovovo’s Motion to Reconsider.         The

instant appeal was filed on May 28, 2003.        We note that Bovovo

dedicates a significant portion of his brief to rearguing the

merits of his asylum-related claims.         However, the only issue




     4
      The entire Order states, “The appeal is dismissed.        The
appellant checked Box 6 on the Notice of Appeal (Form EOIR-26)
indicating that a separate written brief or statement would be
filed in addition to the reasons for appeal accompanying the Notice
of Appeal. Block 6 is immediately followed by a clear warning that
the appeal may be subject to summary dismissal if the appellant
indicates that such a brief or statement will be filed and, within
the time set for filing, you fail to file the brief or statement
and do not reasonably explain such failure.”

                                   4
properly before us is whether the Board abused its discretion in

denying Bovovo’s Motion to Reconsider.5

     A decision to grant a motion to reconsider is within the

discretion of the Board.     8 C.F.R. § 1003.2(a).    A motion to

reconsider “shall state the reasons for the motion by specifying

errors of fact and law in the prior board decision and shall be

supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). Here,

in denying Bovovo’s motion, the Board stated only that, “[t]he

failure to file a brief in a timely manner is an adequate basis

upon which to dismiss an appeal.     We did so and see no error in

that decision.   Accordingly, the motion to reconsider is denied.”

Thus, the issue before the Court, at core, is whether the Board has

the authority to summarily dismiss an immigrant’s appeal for

failure to file a brief, even when the Board is otherwise properly

informed of the reasons for the appeal.


     5
      It is apparent to this Court that Bovovo desires to
relitigate the merits of his case on appeal by asking us to review
the Board’s initial Order of January 22, 2003. However, the issues
resolved in that proceeding are not properly before this Court. A
deportee must file his petition for appeal within thirty days of a
final order.    8 U.S.C. § 1252(b)(1).    The time limitation is
“jurisdictional in nature and must be construed with strict
fidelity to [its] terms.” Stone v. INS, 514 U.S. 386, 405 (1995).
The filing of a motion to reconsider does not toll the running of
the limitation period. Id. at 394. In the present case, after
Bovovo failed to file his brief, the Board issued its order of
dismissal on January 22, 2003. Thus, Bovovo was required to file
his appeal by February 22, 2003. The instant appeal was filed on
May 28, 2003. Consequently, the appeal is not timely as to the
Board’s original order, and may only be considered by us in the
context of the Board’s denial of the Motion to Reconsider ordered
on May 1, 2003.

                                 5
     There are two sections of the INS regulations pertinent to the

issue at hand.     First 8 C.F.R. § 1003.3(d)(2)(i) expressly grants

the Board authority to summarily dismiss appeals for any one of

eight (8) different reasons.           8 C.F.R. § 1003.3(d)(2)(i)(A – H).

One of those reasons includes when “[t]he party concerned indicates

on Form EOIR-26 . . . that he . . . will file a brief or statement

in 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.”              8 C.F.R. § 1003.1(d)(2)(i)(E).

However, 8 C.F.R. § 1003.3(b) states that “[a] party taking the

appeal must identify the reasons for the appeal in the Notice of

Appeal   (Form   EOIR–26      or   Form   EOIR–29)   or   in   any   attachments

thereto,   in    order   to    avoid      summary    dismissal       pursuant   to

§ 1003.1(d)(2)(i).”      In addition, § 1003.3(b) states the specific

requirements necessary to avoid summary dismissal and adequately

apprise the Board of the nature of the appeal.6

     Based upon this language, one could argue that a sufficient

statement of reasons in the notice of appeal would serve to prevent



     6
      “The statement must specifically identify the findings of
fact, the conclusions of law, or both, that are being challenged.
If a question of law is presented, supporting authority must be
cited. If the dispute is over the findings of fact, the specific
facts contested must be identified.     Where the appeal concerns
discretionary relief, the appellant must state whether the alleged
error relates to statutory grounds of eligibility or to the
exercise of discretion and must identify the specific factual and
legal finding or findings that are being challenged.” 8 C.F.R. §
1003.3(b).

                                          6
summary dismissal only under subsection (A) of § 1003.1(d)(2)(i),

which    permits   dismissal   when    reasons   for    the   appeal   are   not

specified in the notice.       However, in this Court’s view, a better

reading, implicit in the plain language of § 1003.3(b) and the

purpose of the regulations, is that a sufficient statement of

reasons in the notice of appeal prohibits            summary dismissal based

upon any of the reasons set forth in § 1003.1(d)(2)(i), including

dismissal for failure to file a brief.7              In other words, summary

dismissal for failure to file a brief is only appropriate where the

alien checks Item 6 that he will file a separate brief and the

reasons for the appeal stated in the required section on Form

EOIR–26 do not comport with the requirements of § 1003.3(b) and do

not adequately notify the Board of the reasons for the appeal.8

     In    dismissing   Bovovo’s      appeal   and    subsequent   Motion     to

Reconsider, the Board abused its discretion by basing its decisions


     7
      At the very least, the limiting language in § 1003.3(b)
creates ambiguity as to whether an appeal may be dismissed for
failure to file a brief when the alien has adequately stated the
reasons for the appeal on Form EOIR–26, and “lingering ambiguities
in deportation laws must be construed in favor of the alien.” INS
v. St. Cyr, 533 U.S. 289, 320 (2001).
     8
      We note that the seminal case on the narrow point of law at
issue is Casas-Chavez v. INS, 300 F.3d 1088 (9th Cir. 2002), in
which the Ninth Circuit held that a petitioner’s satisfaction of
the specificity requirement in § 1003.3(b), despite the failure to
file a promised brief, is sufficient to prevent summary dismissal
of an appeal because it provides the Board with the requisite
notice. The other circuits that have interpreted or have provided
a judicial gloss to the principle espoused by the Ninth Circuit,
including the cases cited by Appellee, have not been faced with the
particular issue at hand or have distinguished it on the facts.

                                       7
solely on Bovovo’s failure to file a brief after checking the box

in Item 6 stating that he would do so.         In both decisions, the

Board failed to even mention, much less analyze for sufficiency,

Bovovo’s   stated   reasons   for    the   appeal   on    Form   EOIR–26.

Consequently, we are unable to determine whether the Board was

adequately informed of Bovovo’s legal and factual contentions on

appeal.    The Supreme Court has counseled courts of appeals to

refrain from rendering their own findings of fact or resolving

issues not yet considered by the Board.       See INS v. Ventura, 537

U.S. 12, 16 (2002).   Rather, “a court of appeals should remand a

case to an agency for decision of a matter that statutes place

primarily in agency hands.”    Id.      Accordingly, we grant Bovovo’s

petition, vacate the Board’s Order, and remand for the Board to

consider whether Bovovo’s Notice of Appeal sufficiently states the

basis for his appeal under the standards set forth in 8 C.F.R. §

1003.3(b). If the basis for Bovovo’s appeal is sufficiently stated

on the Notice of Appeal, the Board should consider the merits of

his appeal.



                                                         PETITION GRANTED




                                    8
