Filed: Sep. 22, 2021
Latest Update: Sep. 23, 2021
USCA11 Case: 21-12446 Date Filed: 09/22/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 21-12446
Non-Argument Calendar
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Agency No. A070-567-757
VICTORIANO IXCOY-ITZEP,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(September 22, 2021)
Before ROSENBAUM, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Victoriano Ixcoy-Itzep, a native and citizen of Guatemala, seeks review of
the Board of Immigration Appeals order denying his motion to reconsider its
summary dismissal of his administrative appeal from a final deportation order.
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The government, in turn, moves for summary denial of Ixcoy-Itzep’s petition,
arguing that the Board’s denial of his motion to reconsider was not an abuse of
discretion because he did not specify any legal or factual error in the prior order.
Summary disposition is appropriate where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
I.
Ixcoy-Itzep entered the United States without inspection in 1992. An
immigration judge entered an order of removal in 1994, and Ixcoy-Itzep was
deported several years later. He apparently reentered the United States the
following year, again without inspection, and in 2019, the Department of
Homeland Security reinstated the 1994 removal order.
Following a series of events not relevant to the present petition, Ixcoy-Itzep
moved to rescind the 1994 removal order or, alternatively, to reopen his removal
proceedings. An immigration judge denied the motion, and Ixcoy-Itzep appealed
to the Board of Immigration Appeals. In his notice of administrative appeal, he
stated that he was appealing because the immigration judge “erred as a matter of
law and discretion in not granting” his motion, without further explanation. He
also indicated that he intended to file a separate written brief.
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The Board issued a briefing schedule setting a deadline for Ixcoy-Itzep to
submit a brief. Although his counsel apparently filed a brief in the immigration
court on the day of the deadline, he did not file a brief with the Board. A few
months later, therefore, the Board summarily dismissed his appeal because his
notice of administrative appeal did not specifically identify the findings of fact or
conclusions of law that he was challenging, and although his notice of appeal
indicated that he would file a separate appeal brief, he had not done so by the
deadline in the Board’s briefing schedule. The Board acknowledged that counsel
had incorrectly filed an appeal brief with the immigration court, but it declined to
consider that brief because (1) the form that counsel used for his notice of
administrative appeal contained a warning that his appeal could be summarily
dismissed if he represented that he would file a separate appeal brief and failed to
do so by the deadline set by the Board, and (2) his counsel did not timely file his
brief, or file a motion to accept a late-filed brief, with the Board.1
Ixcoy-Itzep filed a motion for reconsideration of the Board’s summary
dismissal, arguing that although a paralegal in his counsel’s office had mistakenly
filed his brief in the wrong court on the day of the deadline, counsel was unaware
of the error until he received a rejection notice the next month. Counsel also stated
1
Ixcoy-Itzep filed a petition for review of the Board’s summary dismissal with this Court. We
dismissed the petition in part for lack of jurisdiction and denied it in part. Ixcoy-Itzep v. U.S.
Att’y Gen., No. 21-10128 (March 22, 2021).
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that after receiving the rejection notice, he called the Board and was told that it had
eventually received the brief. Counsel argued that reconsideration of the summary
dismissal was warranted because his prior diligence regarding the brief and his
reliance on information that the Board had received it were errors of fact that the
Board did not consider when summarily dismissing the appeal.
The Board concluded that Ixcoy-Itzep had not identified any errors of fact or
law in its summary dismissal order and denied his motion for reconsideration. It
explained that his due diligence and reliance arguments did not change the fact that
his attorney filed his brief in the wrong court and did not file either a timely brief
or a motion to accept a late-filed brief with the Board. Ixcoy-Itzep now petitions
for our review of the Board’s order denying his motion for reconsideration.
II.
We review the Board’s denial of a motion to reconsider for an abuse of
discretion. Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1242 (11th Cir. 2013). Our
review is limited to determining whether the Board exercised its discretion in an
arbitrary and capricious manner.
Id. at 1243. The Board abuses its discretion
when it misapplies the law in reaching its decision or fails to follow its own
precedents without providing a reasoned explanation for doing so.
Id.
Immigration regulations require that a party appealing an immigration
judge’s decision in deportation proceedings must identify the reasons for the
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appeal in the notice of appeal or in any attachments to it. 8 C.F.R § 1003.3(b).
Briefs in support of an appeal from an immigration judge’s decision must be filed
directly with the Board according to the briefing schedule set by the Board. Id.
§ 1003.3(c)(1). The Board may, upon written motion, extend the time for filing a
brief; it also has the discretion to consider a late-filed brief. Id. But the Board also
“may summarily dismiss any appeal” if the party appealing fails to specify the
reasons for the appeal in his notice of appeal and attachments, or if he indicates in
the notice of appeal that he will file a brief in support of the appeal and does not do
so, or reasonably explain his failure to do so, within the time set by the Board. Id.
§ 1003.1(d)(2)(i)(A), (E).
We cannot say that the Board’s denial of Ixcoy-Itzep’s motion to reconsider
was an abuse of discretion. Although counsel attempted to explain Ixcoy-Itzep’s
failure to timely file his appeal brief with the Board, he did not identify any errors
of law or fact in the Board’s dismissal order that would warrant reconsideration.
See id. § 1003.2(b)(1). The record shows that Ixcoy-Itzep had notice that the
failure to file a brief by the deadline set by the Board could result in summary
dismissal of his appeal, and his counsel received a rejection notice informing him
that the appeal brief had been filed in the wrong court on the day of the deadline.
Despite receiving that information more than two months before the Board issued
its dismissal order, however, counsel never filed the brief with the Board or
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requested leave to file the brief after the deadline set by the Board. The Board’s
refusal to reconsider its dismissal order therefore was not arbitrary and capricious.
See Ferreira, 714 F.3d at 1243.
For these reasons, we conclude that there is “no substantial question as to the
outcome of the case” because the Board’s decision is clearly correct as a matter of
law. Groendyke Transp., Inc., 406 F.2d at 1162. We therefore GRANT the
government’s motion to summarily deny the petition for review.
PETITION DENIED.
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