Jorge Argueta-Orellana v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of a Decision of…

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)

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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.

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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.

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(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 its discretion, the Board dismissed Argueta-
Orellana’s appeal under 8 C.F.R. § 1003.l(d)(2)(i)(E). This
timely petition followed.1
II.
We have limited jurisdiction to review the Board’s
decision under 8 U.S.C. § 1252(a)(1), looking only for an
1 Argueta-Orellana appealed pro se and we directed the
Clerk to appoint amicus curiae to address “whether the [Board]
erred in summarily dismissing petitioner’s appeal before the
agency for failure to file a brief.” (ECF No. 14.) We later issued
a revised briefing schedule allowing Argueta-Orellana to file
his own pro se brief. (ECF No. 39.) We thank counsel for the
able assistance, and Argueta-Orellana “wholly agrees with the
central reasoning put forth by Amicus Curiae.” (Pro Se Br. at
14.)

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abuse of discretion. Uddin v. Att’y Gen., 870 F.3d 282, 288 (3d
Cir. 2017). Under that standard, “[t]he [Board’s] discretionary
decision is not disturbed unless it is found to be arbitrary,
irrational, or contrary to law.” Alzaarir v. Att’y Gen., 639 F.3d
86, 89 (3d Cir. 2011) (per curiam). If a summary dismissal
follows application of the regulation, then, by definition, no
abuse of discretion occurred. And because we find neither
arbitrariness, irrationality, nor a decision contrary to law, we
will dismiss the petition.
A. The Regulation’s Ordinary Meaning
As always, our “review of a regulation centers on the
ordinary meaning of the text.” Jaroslawicz v. M&T Bank
Corp., 962 F.3d 701, 710–11 (3d Cir. 2020). A task we
approach using “all the ‘traditional tools’ of construction.”
Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (quoting Chevron
U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843,
n.9); see also Arcos Sanchez v. Att’y Gen., 997 F.3d 113, 119
(3d Cir. 2021). When “a reviewing court employs all of the
traditional tools of construction, the court will almost always
reach a conclusion about the best interpretation.” Shular v.
United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J.,
concurring) (quoting Kisor, 139 S. Ct. at 2448 (Kavanaugh, J.,
concurring)). That is the case here.
Under 8 C.F.R. § 1003.1(d)(2)(i)(A)–(H), the Board
may summarily dismiss an appeal in eight specific
circumstances. One of those relates to the failure to file a
supporting brief:
A single Board member or panel may summarily
dismiss any appeal or portion of any appeal in
any case in which . . . [t]he party concerned

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indicates on Form EOIR-26 or Form EOIR-29
that he or she 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). There are no exceptional or
unusual meanings in this text, only discretion to summarily
dismiss when a brief is promised but, without explanation, not
provided. Understandably, Argueta-Orellana does not directly
challenge that reading. Instead, he sees conflict in context. But
we are not persuaded, as following the text of
§ 1003.1(d)(2)(i)(E) is not an abuse of discretion.
B. There is No Textual Tension
Argueta-Orellana relies on another regulation
discussing the requirements for a Notice of Appeal. That
provision, 8 C.F.R. § 1003.3(b), lists the usual substance for an
appellate filing, including “the findings of fact, the conclusions
of law, or both, that are being challenged,” and citations to any
supporting authority. Argueta-Orellana reads this language as
a qualifier on the discretion provided under
§ 1003.1(d)(2)(i)(E), allowing the Board to dismiss only when
the Notice of Appeal is defective because it departs from the
requirements of § 1003.3(b).2 Otherwise, he says, the Board
could decline to decide an appeal that fully complies with the
§ 1003.3(b) standards even if there is nothing to add in a
supplemental statement or brief. He is correct the Board could
2 A position adopted in Esponda v. Att’y Gen., 453 F.3d
1319, 1322 (11th Cir. 2006).

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still decide the appeal, but incorrect to conclude that they must.
Three reasons explain why.
First, § 1003.3(b) reiterates that the optional brief is not
an alternative to the requirements of the Notice. 8 C.F.R.
§ 1003.3(b) (“[A]ppellant must also indicate in the Notice of
Appeal . . . whether he or she will be filing a separate written
brief or statement in support of the appeal.” (emphasis added)).
So “[n]o person, certainly no attorney, who read both § 1003.3
and § 1003.1 would be confused about the actions or failures
that might result in summary dismissal.” Kokar v. Gonzales,
478 F.3d 803, 812 (7th Cir. 2007). Satisfying § 1003.3(b) is
necessary, but not sufficient, to avoid possible dismissal.
Second, Argueta-Orellana’s reading would harm, rather
than harmonize, the statutory structure. Holding that satisfying
§ 1003.3(b) precludes discretionary dismissal under
§ 1003.1(d)(2)(i)(E) would also prevent dismissals for a lack
of jurisdiction or an untimely appeal. See 8 C.F.R.
§ 1003.1(d)(2)(i)(F), (G). That is why “[t]he provisions of a
text should be interpreted in a way that renders them
compatible, not contradictory.” Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 180
(2012). We “must therefore interpret the statute ‘as a
symmetrical and coherent regulatory scheme,’” Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000) (quoting Gustafson v. Alloyd Co., 513 U.S. 561,
569 (1995)), and “fit, if possible, all parts into an harmonious
whole,” Roberts v. Sea-Land Servs., Inc., 566 U.S. 93, 100
(2012) (quoting FTC v. Mandel Bros., 359 U.S. 385, 389
(1959)).
Third, there is the obvious reason that failure to file a
brief after expressing intent to do so is “a serious procedural

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default” for which “dismissal is an appropriate sanction.” Stroe
v. INS, 256 F.3d 498, 499 (7th Cir. 2001). If, as Argueta-
Orellana prefers, a petitioner could claim further argument is
coming, provide none, and suffer no penalty, then the Board
would face an endless paper chase that delays decisions and
frustrates finality. The Board’s straightforward application of
§ 1003.l(d)(2)(i)(E) avoids all that by providing an
independent ground for summary dismissal.3
C. The Remaining Claims are not Exhausted
Supplementing the arguments raised by Amicus,
Argueta-Orellana suggests that applying § 1003.l(d)(2)(i)(E)
to dismiss his appeal violated “[f]undamental notions of ‘fair
play,’” (Pro Se Br. at 27), and that “[d]ue process require[d]
‘that the decision maker actually consider the evidence and
argument that a party presents.’” (Pro Se Br. at 15 (quoting
Morgan v. United States, 298 U.S. 468, 481 (1936)).) But
Argueta-Orellana did not raise these claims before and each,
“stripped of its ‘due process’ label, is a claim of procedural
error that could have been addressed by the [Board].” Khan v.
3 A conclusion shared by several opinions. See, e.g.,
Kokar, 478 F.3d at 810 (§ 1003.1 “permit[s] the Board to
manage its large docket.” (citing Stroe, 256 F.3d at 499)); Awe
v. Ashcroft, 324 F.3d 509, 513 (7th Cir. 2003)
(“[§ 1003.1(d)(2)(i)(E)] explicitly gives the BIA authority to
dismiss procedurally defective appeals.”); Rioja v. Ashcroft,
317 F.3d 514, 515–16 (5th Cir. 2003) (per curiam) (“The BIA
was within its statutorily designated discretion to summarily
dismiss Rioja’s appeal after he indicated on the notice of appeal
form that a separate brief or statement would be filed and then
failed to submit such brief or statement before the filing
deadline.”).

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Att’y Gen., 448 F.3d 226, 236 n.8 (3d Cir. 2006). Argueta-
Orellana’s “failure to do so is thus fatal to our jurisdiction over
this petition.” Bonhometre v. Gonzales, 414 F.3d 442, 448 (3d
Cir. 2005). Even if we had jurisdiction, the argument is
unavailing. Filing a separate brief before the Board is optional
so “all aliens have a ‘fair opportunity to present their cases.’”
Kokar, 478 F.3d at 810 (citations omitted). And a fair
opportunity to be heard is all the process owed under the Fifth
Amendment. Likewise, we cannot consider Argueta-
Orellana’s charges of ineffective assistance because he did not
exhaust that claim before the Board.4
III.
For these reasons, we will deny the petition for review
in part and dismiss the remainder.
4 A process that requires the alien to file either a motion
for reconsideration or a motion to reopen, supported by an
affidavit detailing the relevant facts, and former counsel must
be informed and allowed to respond. Fadiga v. Att’y Gen., 488
F.3d 142, 155 (3d Cir. 2007) (citing Matter of Lozada, 19 I. &
N. Dec. 637, 639). Argueta-Orellana filed neither, and the time
for either has long run. 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R.
§ 1003.2(b)(2) (motion to reconsider must be filed within thirty
days); 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2)
(motion to reopen must be filed within ninety days of the date
of entry of final order of removal). While attorney conduct can
equitably toll the ninety-day deadline, Argueta-Orellana has
not shown the due diligence essential to tolling. Mahmood v.
Gonzales, 427 F.3d 248, 250–51, 252–53 (3d Cir. 2005);
Borges v. Gonzales, 402 F.3d 398, 407 (3d Cir. 2005).

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