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)
2

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.
3

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. 
4

(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 ArguetaOrellana’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.)
5

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 
6

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).
7

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 
8

default” for which “dismissal is an appropriate sanction.” Stroe 

v. INS, 256 F.3d 498, 499 (7th Cir. 2001). If, as ArguetaOrellana 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.”).
9

Att’y Gen., 448 F.3d 226, 236 n.8 (3d Cir. 2006). ArguetaOrellana’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 ArguetaOrellana’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).