Noemi Monges-Garcia v. ERIC H. HOLDER Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOEMI MONGES-GARCIA,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney
General,
Respondent.
No. 10-71923
Agency No. A072-991-167
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 6, 2012**
San Francisco, California
Before: KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and
KORMAN, Senior District Judge.***
FILED
AUG 28 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

page 2
We dismissed this petition last year because Noemi Monges-Garcia failed to
submit an opening brief. We reinstated the petition but must again dismiss because
the opening brief doesn’t comply with our rules and fails to raise a specific and
distinct challenge to the BIA’s order dismissing her appeal.
The opening brief is very nearly the same counsel submitted to us in 2004,
before we remanded this case to the BIA. See Monges-Garcia v. Gonzales, 228
Fed. App’x 665, 667 (9th Cir. 2007). It adds a sentence and modifies another to
tell us the agency was “incorrect” and “should be overruled,” but it’s otherwise
cut-and-pasted from the previous filing. Our rules don’t allow parties to “append
or incorporate by reference briefs submitted to . . . this Court in a prior appeal,” 9th
Cir. R. 28-1(b), and this case shows why. Petitioner’s recycled brief raises an issue
that was resolved before remand, fails to address the agency’s latest decision and
reasoning and doesn’t even cite 8 C.F.R. § 1003.23(b)(1), the regulation we asked
the BIA to interpret. So far as we can tell, petitioner’s attorney didn’t read the
agency’s decision.
The government called Monges-Garcia’s attention to the defects in her brief,
arguing that it didn’t comply with Fed. R. App. P. 28(a) and failed to “specifically
and distinctly” challenge the agency’s decision. Resp’t Br. 12–14; see also Castro-
Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005). Yet she never filed a

-- 2 of 3 --

page 3
reply and “made no attempt to correct the glaring deficiencies in the brief.” Han v.
Stanford Univ., 210 F.3d 1038, 1040 (9th Cir. 2000).
Dismissal of a petition for insufficient briefing may in some circumstances
have harsh results for a petitioner, especially “when the fault lies solely with his or
her counsel.” Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007). But Monges-
Garcia informs us that she has an alternate avenue of relief: The government is
willing to file a joint motion to reopen her in absentia deportation order. Such joint
motions are not subject to the time limits on other motions to reopen, see 8 C.F.R.
§ 1003.2(c)(3)(iii), 1003.23(b)(4)(iv), and may provide Monges-Garcia with the
relief she seeks.
Counsel shall not charge petitioner, directly or indirectly, for the attorney’s
fees and costs associated with this petition. Within 30 days of this order, counsel
shall file a certificate stating under oath that he has discussed this matter with his
client and has refunded any money he may have charged her for working on this
petition.
On July 30, 2012, Monges-Garcia filed a motion for extension of time to
hear oral argument. On July 31, 2012, we ordered this case submitted on the
briefs. We therefore deny the motion as moot.
DISMISSED.

-- 3 of 3 --