Vargas-Garcia v. INS: 9th Circuit Finds BIA Summary Dismissal of Appeal Violates Due Process Because of Misleading Appeal Form and Lack of Notice

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VARGAS-GARCIA V. INS: 9TH CIRCUIT FINDS BIA SUMMARY DISMISSAL OF APPEAL VIOLATES DUE PROCESS BECAUSE OF MISLEADING APPEAL FORM AND LACK OF NOTICE
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

The U.S. Court of Appeals for the Ninth Circuit has reversed a ruling of the Board of Immigration Appeals that summarily dismissed an appeal for lack of specificity in the notice of appeal. In reversing the decision, the court cited prior cases in which it has criticized the notice of appeal form for more than 10 years. The court has repeatedly found the form to be misleading because it leaves very little space for a respondent to describe the reasons for the appeal. Although the form has been revised to include a notice of the requirement that the form specifically indicate the basis for the appeal, little space on the form is allocated for this purpose. The court found that the lack of space gives a false impression that little detail is required and that this defect is exacerbated by the BIA's failure to give notice before summarily dismissing the case. The court concluded that the combination of the defective form and the lack of notice and opportunity to correct any lack of specificity violate due process.

Vargas-Garcia v. INS, __ F.3d __, No. 00-71019 (9th Cir. Apr. 25, 2002).