Jorge Argueta-Orellana v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 20-1581 ______________ JORGE ARGUETA-ORELLANA Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of a Decision of the Board of Immigration Appeals (A216-430-317) Immigration Judge: Tamar H. Wilson ______________ Argued November 9, 2021 Before: HARDIMAN, MATEY, and SCIRICA, Circuit Judges. (Opinion Filed: May 20, 2022) Jorge Argueta-Orellana Etowah County Detention Center 827 Forrest Avenue Gadsden, AL 35901 Petitioner Pro Se Arleigh P. Helfer, III [ARGUED] Bruce P. Merenstein Schnader Harrison Segal & Lewis 1600 Market Street Suite 3600 Philadelphia, PA 19103 Court Appointed Amicus Curiae John B. Holt John F. Stanton [ARGUED] Brian Boynton Keith I. McManus Office of Immigration Litigation U.S. Department of Justice Civil Division P.O. Box 878, Ben Franklin Station Washington, DC 20044 Counsel for Respondent ______________ OPINION ______________ MATEY, Circuit Judge. 2 The Board of Immigration Appeals (“Board”) gives petitioners a choice: you need not file a brief supporting your appeal but, if you say you will and do not, your challenge might be dismissed. Petitioner Jorge Argueta-Orellana did not heed that warning and, after stating a brief supporting his appeal would follow, filed nothing. Following that rule, the Board exercised its discretion and dismissed his case, a decision that is neither arbitrary nor irrational. Nor can we consider the new arguments raised for the first time on appeal. As a result, we will deny the petition in part, and dismiss the remainder. I. Argueta-Orellana is a citizen of El Salvador who entered the United States illegally and was charged with unlawful presence. He conceded removability and, assisted by counsel, filed an application seeking asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). An Immigration Judge denied his application and ordered him removed. Still represented by counsel, Argueta-Orellana appealed to the Board. The Board’s standard Notice of Appeal (known as a “Form EOIR-26”) asks whether the appellant intends to file an optional written brief or statement, advising: WARNING: If you mark “Yes” . . . , you will be expected to file a written brief or statement after you receive a briefing schedule from the Board. The Board may summarily dismiss your appeal if you do not file a brief or statement within the time set in the briefing schedule. 3 (A.R. at 12.) Argueta-Orellana’s counsel marked “Yes.” (A.R. at 12.) As a result, the Board issued a briefing schedule which repeated: WARNING: If you indicate on the Notice of Appeal . . . that you will file a brief or statement, you are expected to file a brief or statement in support of your appeal. If you fail to file a brief or statement within the time set for filing in this briefing schedule, the Board may summarily dismiss your appeal. (A.R. at 6.) The Board later sent Argueta-Orellana a signed copy of the judge’s decision, along with a reminder of the briefing schedule containing the identical caution. Despite those three warnings, Argueta-Orellana filed nothing. Exercising …

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