UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MIGUEL ANGEL GARCIA-BONILLA, 

Petitioner,

v.  No. 02-2118

JOHN ASHCROFT,

Respondent. 

On Petition for Review of an Order of

the Board of Immigration Appeals.

(A77-609-974)

Submitted: January 15, 2004

Decided: March 11, 2004

Before WILKINS, Chief Judge, and LUTTIG and

TRAXLER, Circuit Judges.

Petition dismissed by unpublished per curiam opinion. 

COUNSEL

Donald L. Schlemmer, Washington, D.C., for Petitioner. Robert D.

McCallum, Jr., Assistant Attorney General, Anthony W. Norwood,

Senior Litigation Counsel, Virginia M. Lum, Attorney, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Miguel Angel Garcia-Bonilla petitions for review of an order of the

Board of Immigration Appeals (Board) summarily dismissing his

appeal from an immigration judge’s denial of his applications for asylum, withholding of removal, and protection under the Convention

Against Torture. We dismiss the petition based on Garcia-Bonilla’s

failure to exhaust his administrative remedies. 

I.

Garcia-Bonilla illegally entered the United States without inspection by an immigration officer. On July 27, 1999, the Immigration and

Naturalization Service issued a notice to appear, charging him with

removability under § 212(a)(6)(A)(i) of the Immigration and Nationality Act, see 8 U.S.C.A. § 1182(a)(6)(A)(i) (West 1999), as an alien

present in the United States without being admitted or paroled. At a

hearing before an immigration judge, Garcia-Bonilla conceded that he

was removable as charged but requested asylum, withholding of

removal, and protection under the Convention Against Torture. On

June 18, 2001, the immigration judge denied Garcia-Bonilla’s applications and ordered his removal from the United States. 

Garcia-Bonilla subsequently filed a timely notice of appeal with

the Board. On the notice of appeal form, he listed his reasons for

appeal. Item number six on page two of the notice form asked

whether he would "file a separate written brief or statement in addition to the ‘Reason(s) for Appeal’ written above or accompanying this

form." J.A. 15. Garcia-Bonilla checked the box indicating that he

would file a separate brief or statement and added the words "within

30 days of receipt of the entire transcript." Id. A shaded box below

the question contained a warning, preceded by a large exclamation

point, that read as follows: "WARNING: Your appeal may be sum2 GARCIA-BONILLA v. ASHCROFT
marily dismissed if you indicate in Item #6 that you will file a separate written brief or statement and, within the time set for filing, you

fail to file the brief or statement and do not reasonably explain such

failure." Id. Directly beneath the warning was the signature and date

line for the appealing party. Counsel signed and dated the form on

July 18, 2001. 

On February 6, 2002, the Board apparently sent a briefing schedule, a copy of the immigration judge’s decision, and the transcript of

Garcia-Bonilla’s immigration court hearing to counsel, and informed

Garcia-Bonilla that his brief must be received by the Board no later

than March 8, 2002. It is undisputed that Garcia-Bonilla failed to file

a separate written brief or statement. 

On August 29, 2002, the Board summarily dismissed GarciaBonilla’s appeal. In its order, the Board cited the warning contained

in the notice of appeal and 8 C.F.R. § 3.1(d)(2)(i)(D) (2002), which

provides for summary dismissal if a brief or statement is not filed

after a party has indicated that it would do so. Additionally, the Board

stated that upon review of the record, it was "not persuaded that the

Immigration Judge’s ultimate resolution of this case was in error."

J.A. 8. 

II.

In his petition for review, Garcia-Bonilla argues that the Board violated his due process rights by dismissing his appeal for failure to file

a brief without giving him an opportunity to file one. Specifically, he

claims that he never received the briefing schedule or the transcript

of his hearing before the immigration judge. In light of prudential

considerations affecting our review of agency actions, we hold that

Garcia-Bonilla was required to present this claim to the Board in a

motion to reopen, and therefore that we cannot grant his petition. 

8 U.S.C.A. § 1252(d)(1) (West 1999) directs that "[a] court may

review a final order of removal only if . . . the alien has exhausted all

administrative remedies available to the alien as of right." It has been

held that this statutory exhaustion requirement does not apply to

motions to reopen. See Noriega-Lopez v. Ashcroft, 335 F.3d 874, 880-

81 (9th Cir. 2003). Nevertheless, courts may require exhaustion of

GARCIA-BONILLA v. ASHCROFT 3
administrative remedies in some circumstances even when exhaustion

is not statutorily required. See NLRB v. Indus. Union of Marine &

Shipbuilding Workers of Am., AFL-CIO, 391 U.S. 418, 426 & n.8

(1968); Noriega-Lopez, 335 F.3d at 881. Such a prudential requirement does not deprive a court of jurisdiction but rather is within the

discretion of the reviewing court. See Montes v. Thornburgh, 919

F.2d 531, 537 (9th Cir. 1990). Exhaustion may be prudentially

required if: 

(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision;

(2) relaxation of the requirement would encourage the

deliberate bypass of the administrative scheme; and (3)

administrative review is likely to allow the agency to correct

its own mistakes and to preclude the need for judicial

review.

Id. (internal quotation marks omitted).

Our consideration of these factors here leads us to dismiss GarciaBonilla’s petition. When Garcia-Bonilla received the Board order

stating that he had been "granted the opportunity to submit a brief"

but had failed either to do so or to "reasonably explain his . . . failure

to do so," J.A. 8 (internal quotation marks omitted), he needed only

to move the Board to reopen his case so that he could demonstrate

that he had never received the briefing schedule or transcript. See generally 8 C.F.R. § 3.2(c) (2003). Doing so would have given the Board

the chance to consider his explanation, make any necessary factual

findings, and decide whether to excuse his failure to file a brief.

Because he bypassed the Board altogether with regard to this claim,

however, the factual premise of the claim—that he never received the

briefing schedule and transcript—is not supported by any administrative findings.* See McGee v. United States, 402 U.S. 479, 488 (1971)

*Garcia-Bonilla has included in the joint appendix an affidavit from

his attorney stating that neither he nor Garcia-Bonilla received any formal communication from the Board prior to its decision. However, that

affidavit, not having been presented to the Board in a motion to reopen,

is not properly before us. See 8 U.S.C.A. § 1252(b)(4)(A) (West 1999)

(providing that "the court of appeals shall decide [a petition for review

of a final order of removal] only on the administrative record on which

the order of removal is based"). 

4 GARCIA-BONILLA v. ASHCROFT
(holding that "[t]he exhaustion requirement is properly imposed

where . . . the claim to exemption depends on careful factual analysis

and where the registrant has completely sidestepped the administrative process designed to marshal relevant facts and resolve factual

issues in the first instance"); McKart v. United States, 395 U.S. 185,

194 (1969) (explaining that "judicial review may be hindered by the

failure of the litigant to allow the agency to make a factual record, or

to exercise its discretion or apply its expertise"); Rhoa-Zamora v. INS,

971 F.2d 26, 34 (7th Cir. 1992) (holding that "an appellate court is

not the appropriate forum to engage in fact-finding in the first

instance"). Moreover, allowing litigants to proceed directly to this

court with factual claims such as Garcia-Bonilla’s would remove

much of the incentive that would otherwise exist for presenting such

claims to the Board in the first instance and would eliminate the significant possibility that the claims could be resolved at the Board

level with no judicial involvement. For all of these reasons, we conclude that prudential considerations preclude us from reviewing

Garcia-Bonilla’s challenge to the procedural basis for the Board’s

summary dismissal, and we therefore dismiss his petition. 

PETITION DISMISSED

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