02-1994 Awe v. Ashcroft

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“Even assuming Awe had not waived his right to challenge the BIA’s procedural dismissal, we note that 8 C.F.R. § 3.1(d)(2)(i)(D) explicitly gives the BIA authority to dismiss procedurally defective appeals, and we have condoned the BIA’s use of this power in cases similar to this one. See Stroe v. INS, 256 F.3d 498, 499 (7th Cir. 2001) (holding summary dismissal appropriate where party indicated he would file brief, requested and received 30-day filing extension, and never filed brief nor explained why he had not); accord Rioja v. Ashcroft, 317 F.3d 514, 515-16 (5th Cir. 2003). We do not see anything in the record here to suggest that the BIA inappropriately exercised its power in summarily dismissing Awe’s appeal under § 3.1(d)(2)(i)(D), and we therefore affirm its decision on these grounds.

“Although Awe cannot overcome the BIA’s procedural dismissal of his case, he insists that the BIA made an alternative decision on the merits that was inadequate and must be remanded to the BIA for further explanation. Awe refers us to the BIA’s written opinion, specifically its statement that ‘upon review of the record, we are not persuaded that the Immigration Judge’s ultimate resolution of this case was in error,’ for proof that the BIA actually undertook a substantive review of his case and issued a merits decision. At oral argument attorney for the INS said that BIA opinions often include such statements, and it was his opinion that the BIA intended only to inform petitioners that it had looked for, and not found, any egregious constitutional violations in the record. If, as Awe suggests, the BIA intended that statement alone to serve as a determination on the merits, we would likely find such a decision inadequate. See Mansour v. INS, 230 F.3d 902, 907 (7th Cir. 2000) (stating that court will uphold BIA’s decision unless it was made ‘without a rational explanation’ or was otherwise inadequate in its analysis of the record on appeal). But without speculating as to what exactly the BIA meant by this particular sentence in Awe’s case, we conclude that the BIA’s concentration in the rest of its opinion on its reasons for dismissing the case under § 3.1(d)(2)(i)(D) indicates that it was not making a determination on the substantive merits of Awe’s case. Since our appellate review is limited to the BIA’s final orders of removal, we decline to look beyond the BIA’s stated, procedural reasons for dismissing Awe’s appeal and will not undertake a review of the merits of Awe’s case as decided by the IJ.”

Affirmed.

Petition for Review of an Order of the Board of Immigration Appeals, Flaum, J.