Applications for asylum, withholding of removal, & protection under the Convention Against Torture (CAT); Rejection of a timely filed brief; Whether the Board of Immigration Appeals (BIA) abused its discretion when it departed from its own established rules & summarily dismissed petitioners’ appeal; 8 CFR § 1003.1(d)(2)(i)(E); Immigration judge (IJ)

On petition for review of the BIA’s denial of petitioners’ applications for asylum, withholding of removal, and CAT protection, the court held that by denying their applications based on the discrepancy between their attorney’s address on their brief and the address on the attorney’s appearance, it had “depart[ed] from established policies without articulating a reasoned basis for doing so,” and thus abused its discretion. The Department of Homeland Security initiated removal proceedings against petitioners, who are from El Salvador. An IJ denied their applications for asylum, withholding of removal, and CAT protection. They timely appealed to the BIA, which rejected their brief in support of their appeal because the address of their attorney as written on it was not consistent with an address that the attorney had given on a notice of appearance. Petitioners then resubmitted their brief, but the delay made it untimely. The BIA held that they “needed to re-file their brief with a ‘motion for consideration of [their] late-filed brief.’” They filed a third brief along with a motion to accept late filing. Six months later the BIA denied that motion and it later summarily dismissed the appeal based on their failure to file a separate brief or supporting statement when they said they would. The court explained that under § 1003.1(d)(2)(i)(E), the BIA may summarily dismiss an appeal where a petitioner indicates 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.’” It noted that the BIA here rejected the brief in support of the appeal based on the address discrepancy. But there is no requirement “in the BIA’s rules or procedures” that the address on the brief conform to the address on the attorney’s appearance. The addresses given here (a post office box and a physical address) were both ones “where the attorney could validly receive mail.” The court held that “by departing from established policies without articulating a reasoned basis for doing so, the BIA abused its discretion by refusing to accept petitioners’ brief.” The court granted the petition for review and reversed the BIA’s order rejecting their brief and its order summarily denying their appeal.