Belkis Nolasco-Amaya v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BELKIS MARISELA NOLASCO- No. 20-70187

AMAYA,

Petitioner, Agency No.

A098-488-798

v.

MERRICK B. GARLAND, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted June 8, 2021*

Pasadena, California

Filed September 28, 2021

Before: Susan P. Graber, Consuelo M. Callahan, and

Danielle J. Forrest, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge Callahan

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 NOLASCO-AMAYA V. GARLAND

SUMMARY**

Immigration

Granting in part and dismissing in part Belkis Nolasco-

Amaya’s petition for review of the Board of Immigration

Appeals’ summary dismissal of her appeal pursuant to

8 C.F.R. §§ 1003.1(d)(2)(i)(A) and (E), and remanding, the

panel held that given her status as a pro se litigant, Nolasco-

Amaya’s Notice of Appeal was sufficiently specific to inform

the Board of the issues challenged on appeal, and the Board

therefore violated her right to due process by summarily

dismissing her appeal.

The panel explained that under § 1003.1(d), a petitioner

must provide meaningful guidance to the Board by informing

it of the issues contested on appeal; a generalized and

conclusory statement about the proceedings before the IJ does

not suffice. The panel wrote that when a petitioner gives

detailed reasons to support her appeal, either in a separate

brief or on the Notice of Appeal itself, summary dismissal

under 8 C.F.R. § 1003.1(d)(2)(i)(E), for failure to file a brief,

violates her due process rights as guaranteed by the Fifth

Amendment. The panel explained that the purpose of the

specificity requirement is to ensure that the Board is

adequately apprised of the issues on appeal such that it is not

left to search through the record and speculate on what

possible errors the petitioner claims.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NOLASCO-AMAYA V. GARLAND 3

The panel wrote that although this court has consistently

applied the Board’s strict specificity requirement, it also

construes liberally claims raised by pro se petitioners before

the Board. Further, the Board may not ignore a pro se

petitioner’s inartful legal arguments if they suffice to give

notice of the petitioner’s reasons for appeal.

Noting that Nolasco-Amaya was in withholding-only

proceedings, the panel concluded that given the limited relief

to which she was entitled, Nolasco-Amaya’s Notice of

Appeal would not leave the Board guessing as to how and

why she thought that the IJ had erred. The panel explained

that Nolasco-Amaya’s statement that "the police from my

government of Honduras didn’t do nothing to help me" put

the Board on notice that she believed the IJ was incorrect in

concluding that she had failed to meet her burden of

demonstrating that the police would be unable or unwilling to

protect her. Additionally, the panel wrote that, in context,

Nolasco-Amaya’s statement that "[t]he gangs MS-13 [are]

there in all the places in Honduras" notified the Board that

she disputed the IJ’s conclusion that she could relocate safely

within Honduras. As to Nolasco-Amaya’s CAT claim, the

panel observed that Nolasco-Amaya’s Notice of Appeal

stated, in conclusory fashion, that "these people are going to

torture me or kill me," but did not point to evidence offered

in support of that assertion. The panel wrote that this court

has stated that a petitioner need not challenge every basis for

the IJ’s decision, and explained that Nolasco-Amaya’s failure

to discuss, in her Notice of Appeal, past torture or the

likelihood of future torture did not mean that her entire appeal

was automatically subject to summary dismissal. Rather, the

panel concluded that Nolasco-Amaya adequately set forth the

reasons for her appeal by highlighting the IJ’s errors

concerning government acquiescence and internal relocation.

4 NOLASCO-AMAYA V. GARLAND

The panel remanded for the Board to consider the merits of

Nolasco-Amaya’s claims.

Because Nolasco-Amaya did not dispute that she is an

alien, who was subject to a prior removal order, and who

illegally reentered the United States, and because she did not

establish a gross miscarriage of justice stemming from the

issuance of the initial removal order, the panel concluded that

it lacked jurisdiction to consider her collateral attack on that

order.

Dissenting, Judge Callahan wrote that in her view the

majority allowed the general rule governing the liberal

interpretation of pro se filings to overwhelm and virtually

nullify the Board’s rules requiring petitioners to specify the

grounds for their administrative appeals with particularity,

even though this court has previously held that those

requirements apply to pro se litigants. Even construed

liberally, Judge Callahan wrote that Nolasco-Amaya’s notice

of appeal was insufficient to provide meaningful notice of the

precise issues contested on appeal.

COUNSEL

Luis Cortes Romero, Immigrant Advocacy & Litigation

Center PLLC, Kent, Washington, for Petitioner.

John V. Coughlan, Acting Assistant Attorney General;

Anthony P. Nicastro, Assistant Director; Dana M. Camilleri,

Trial Attorney; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

NOLASCO-AMAYA V. GARLAND 5

OPINION

GRABER, Circuit Judge:

Petitioner Belkis Nolasco-Amaya, a native and citizen of

Honduras, sought withholding of removal and protection

under the Convention Against Torture (“CAT”). An

immigration judge (“IJ”) denied her requested relief.

Petitioner filed a Notice of Appeal to the Board of

Immigration Appeals (“BIA”) without the assistance of

counsel. The BIA summarily dismissed her appeal pursuant

to 8 C.F.R. § 1003.1(d)(2)(i)(A) and (E). Petitioner

challenges that summary dismissal, arguing that it violated

her right to due process.

We have jurisdiction under 8 U.S.C. § 1252. Petitioner’s

Notice of Appeal was sufficiently specific to inform the BIA

of the issues challenged on appeal, given her status as a pro

se litigant. Accordingly, the BIA violated Petitioner’s right

to due process by summarily dismissing her appeal. We grant

the petition and remand for the BIA to consider the merits of

Petitioner’s appeal.1

1

As a separate matter, Petitioner argues that the government’s service

of the Notice to Appear for her initial order of removal was defective. She

does not dispute that she “(1) . . . is an alien, (2) who was subject to a prior

removal order, and (3) who illegally reentered the United States.”

Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en

banc). Petitioner is foreclosed from challenging reinstatement of her prior

removal order due to defective service. Id. at 496. And she fails to

establish that there was a “gross miscarriage of justice” stemming from the

issuance of the removal order. Vega-Anguiano v. Barr, 982 F.3d 542, 547

(9th Cir. 2019). Accordingly, we lack jurisdiction to consider Petitioner’s

collateral attack.

6 NOLASCO-AMAYA V. GARLAND

FACTUAL AND PROCEDURAL BACKGROUND

The government initiated removal proceedings in 2005.

But Petitioner left the United States and returned to Honduras

after her mother fell ill. An IJ then issued an in absentia

removal order. After Petitioner reentered the United States in

2019, the government reinstated its earlier removal order

pursuant to 8 U.S.C. § 1231(a)(5). As a result, Petitioner was

ineligible for asylum and was placed in withholding-only

proceedings. INA § 241(a)(5), 8 U.S.C. § 1231(a)(5); 64 Fed.

Reg. 8478-01, 8485 (Feb. 19, 1999).

An IJ denied Petitioner’s applications for withholding of

removal and protection under CAT. He assumed that

Petitioner testified credibly. And he concluded that Petitioner

had demonstrated past persecution on account of a protected

ground. But the IJ found that Petitioner had not established

that the Honduran government was unable or unwilling to

protect her. Further, the IJ reasoned that Petitioner could

relocate within Honduras. Finally, the IJ concluded that

Petitioner was not entitled to protection under CAT because

she had established neither past torture nor government

acquiescence.

Petitioner filed a Notice of Appeal pro se. In the section

regarding the reasons for her appeal, Petitioner wrote the

following:

I can’t return because these people are going

to torture me or kill me and my daughters and

the police from my government of Honduras

didn’t do nothing to help me and if them

didn’t help me I don’t know who could help

me that’s why I ask you not deport me to my

NOLASCO-AMAYA V. GARLAND 7

country. I present all my proofs. Please thank

you!! Very much!! The gangs MS-13 there

in all the places in Honduras.

She also checked a box stating that she intended to file a

separate written brief or statement.

The BIA dismissed Petitioner’s appeal. In the BIA’s

view, the statements in the Notice of Appeal “do not

meaningfully apprise the Board of the specific reasons

underlying her challenge to the Immigration Judge’s

decision.” The BIA’s dismissal order also noted that

Petitioner failed to file a separate brief, “even though she

checked the block on the Notice of Appeal indicating that she

would be filing a separate written brief or statement in

support of her appeal.” The BIA concluded that Petitioner’s

appeal “should be summarily dismissed pursuant to 8 C.F.R.

§ 1003.1(d)(2)(i)(A), for failure to adequately specify the

reasons for the appeal, and 8 C.F.R. § 1003.1(d)(2)(i)(E), for

failure to file a brief or statement within the time set for

filing.”

THE REGULATION

The regulation at issue reads as follows:

(i) Standards. A single Board member or

panel may summarily dismiss any appeal or

portion of any appeal in any case in which:

(A) The party concerned fails to specify the

reasons for the appeal on Form EOIR–26 or

Form EOIR–29 (Notices of Appeal) or other

document filed therewith;

8 NOLASCO-AMAYA V. GARLAND

...

(E) The party concerned 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) (emphasis added).

STANDARDS OF REVIEW

We review for abuse of discretion the BIA’s summary

dismissal of an appeal. Singh v. Gonzales, 416 F.3d 1006,

1009 (9th Cir. 2005). But whether the summary dismissal

violated a petitioner’s due process rights is a question of law

that we review de novo. Id.

DISCUSSION

A. General Principles

Under 8 C.F.R. § 1003.1(d)(2)(i), a petitioner may

provide the BIA with the requisite notice of the reasons for

her appeal “by setting out the reasons on the Notice of Appeal

itself or by filing a separate brief.” Casas-Chavez v. INS,

300 F.3d 1088, 1090 (9th Cir. 2002) (emphasis added). “The

BIA employs a strict specificity requirement when evaluating

the notice of reasons for appeal.” Id. As the agency has

explained:

NOLASCO-AMAYA V. GARLAND 9

It is . . . insufficient to merely assert that the

immigration judge improperly found that

deportability had been established or denied

. . . . [I]t should be clear whether the alleged

impropriety in the decision lies with the

immigration judge’s interpretation of the facts

or his application of legal standards. Where a

question of law is presented, supporting

authority should be included, and where the

dispute is on the facts, there should be a

discussion of the particular details contested.

Toquero v. INS, 956 F.2d 193, 195 (9th Cir. 1992) (ellipses in

original) (quoting Matter of Valencia, 19 I. & N. Dec. 354

(BIA 1986)). A noncitizen must “provide meaningful

guidance to the BIA” by informing it of the issues contested

on appeal; a “generalized and conclusory statement about the

proceedings before the IJ” does not suffice. Id. But “[w]hen

an alien gives detailed reasons to support h[er] appeal, either

in a separate brief or on the Notice of Appeal itself, summary

dismissal under 8 C.F.R. § 1003.1(d)(2)(i)(E) [(failure to file

a brief)] violates the alien’s due process rights as guaranteed

by the Fifth Amendment.” Garcia-Cortez v. Ashcroft,

366 F.3d 749, 753 (9th Cir. 2004) (emphasis added).

The purpose of the “specificity requirement is to ensure

that the BIA is adequately apprised of the issues on appeal so

that the BIA is not left to search through the record and

speculate on what possible errors the [petitioner] claims.”

Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820 (9th Cir. 2003)

(alteration in original) (internal quotation marks omitted). In

other words, the BIA should not be “left guessing at how and

why petitioner thought the [IJ] erred.” Casas-Chavez,

300 F.3d at 1090 (internal quotation marks omitted). “If the

10 NOLASCO-AMAYA V. GARLAND

BIA was forced to decipher general statements of error,

unsupported by specific factual or legal references, the BIA

would have to spend time and resources reconstructing the

proceedings before the IJ and building the petitioner’s legal

case, in some instances only to conclude that the appeal was

utterly without merit.” Rojas-Garcia, 339 F.3d at 820.

B. Summary Dismissal

We frequently deny petitions for review of the BIA’s

summary dismissal of an appeal. Singh v. Ashcroft, 361 F.3d

1152, 1157 (9th Cir. 2004). For example, in Toquero,

counsel wrote in the Notice of Appeal that “[t]he Immigration

Judge erred in denying Respondent’s application for

suspension as the evidence presented established that

Respondent would suffer extreme hardship if deported to the

Philippines.” Toquero, 956 F.2d at 194. We concluded that

this statement fell short of the regulation’s requirement of

specificity. “While the Notice correctly focused on the issue

in contention,” we reasoned, “it did not indicate which facts

were in contention and how the IJ misinterpreted the

evidence.” Id. at 196 (emphases added). Likewise, in Singh,

petitioner’s counsel filed a conclusory two-sentence Notice

of Appeal asserting that the IJ “g[ave] undue weight to minor

inconsistencies in the testimony” and “fail[ed] to consider

proper and consistent testimony.” Singh, 361 F.3d at 1155.

But the petitioner did not identify the evidence that was the

subject of his objections. We denied review because the

Notice of Appeal provided only a “meager description of the

grounds for appeal” that was insufficient to satisfy the

specificity rule. Id. at 1155 n.2.

And in Rojas-Garcia, we again found that the Notice of

Appeal, which cited four grounds of error, lacked specificity

NOLASCO-AMAYA V. GARLAND 11

because it “did not indicate if [petitioner’s] challenges were

based on the IJ’s interpretation of facts, and did not provide

‘supporting authority’ on any question of law presented.”

Rojas-Garcia, 339 F.3d at 820–21. The petitioner asserted

that the IJ improperly had admitted evidence in violation of

the pre-hearing order, but failed to suggest how the pre-

hearing order was violated or what evidence should have

been excluded. Id.

On the other hand, in Casas-Chavez, we concluded that

the counseled petitioners’ Notice of Appeal was sufficiently

specific because it identified the portions of the IJ’s opinion

being appealed and cited evidence and legal authority in

support. Casas-Chavez, 300 F.3d at 1090–91, 1091 n.3. And

in Garcia-Cortez, 366 F.3d at 753, we held that the Notice of

Appeal filed by pro se petitioners was sufficiently specific

because they challenged the IJ’s treatment of a particular

piece of evidence. Although they did not use the term “due

process,” petitioners also made a “valid and specific” due

process argument that the IJ had failed to advise them that

they could call witnesses. Id.

Although we have applied consistently the BIA’s strict

specificity requirement, we also construe liberally claims

raised by pro se petitioners before the BIA. In Ren v. Holder,

648 F.3d 1079, 1083 (9th Cir. 2011), the IJ concluded that the

petitioner had failed to offer corroborating evidence in

support of his claim of persecution. The petitioner wrote in

his Notice of Appeal that he “believe[d] that [he] did establish

that [his] life/freedom would have been threatened in China

on account of [his] strong beliefs and practice of

Christianity.” Id. at 1084. The government argued that we

lacked jurisdiction to review the IJ’s corroboration finding

because the petitioner had failed to exhaust his administrative

12 NOLASCO-AMAYA V. GARLAND

remedies by challenging that finding before the BIA. Id. at

1083. We reasoned that, although the petitioner “did not use

the specific word ‘corroboration,’ it was clear that he was

challenging the IJ’s determination that he had failed to meet

his burden of proof or, in other words, that he had failed to

‘establish’ that he had suffered past persecution or had a

well-founded fear of future persecution.” Id. at 1084. We

explained that “[a] pro se petitioner is not required to use the

precise legal terminology . . . to make clear the basis of his

challenge.” Id. (emphasis added). Although the petitioner’s

Notice of Appeal was “inartful,” it provided the BIA with

adequate notice. Id.

Similarly, in Coronado v. Holder, 759 F.3d 977, 986 (9th

Cir. 2014), we held that a pro se petitioner had given the BIA

adequate notice of his claim. The petitioner had argued that

he received ineffective assistance of counsel. Id. In his

Notice of Appeal, the petitioner stated that his former counsel

“showed incompetence by failing to object to many of the

questions and negative facts comments” made by the IJ. Id.

We reasoned that, “[a]lthough [petitioner’s] pro se brief was

inartful,” his “complaints about his counsel’s deficient

performance were sufficient to put the BIA on notice of his

claim for ineffective assistance of counsel.” Id.

To be sure, Coronado and Ren arose in a different

context. Those cases involved pro se petitioners who

allegedly had failed to exhaust arguments before the BIA.

Accordingly, those decisions did not apply the specificity

requirement of 8 C.F.R. § 1003.1(d)(2)(i)(A). But we did

apply that regulation in Garcia-Cortez, 366 F.3d at 752–53.

And all three of those decisions demonstrate the principle

that the BIA may not ignore a pro se petitioner’s inartful

legal arguments if they suffice to give notice of the

NOLASCO-AMAYA V. GARLAND 13

petitioner’s reasons for appeal. That is, taken together, our

prior decisions establish that pro se notices of appeal to the

BIA should be construed liberally.

Turning to the case before us, we conclude that

Petitioner’s Notice of Appeal—at least in part—is more like

the notices of appeal in those cases where we have

determined that the specificity rule was satisfied than in those

cases where we did not. Petitioner identified two claims.

Given the context of her case, Petitioner’s statements were

not so general as to require the BIA to scrutinize the record

and “speculate on what possible errors” she was claiming.

Rojas-Garcia, 339 F.3d at 820 (internal quotation marks

omitted). As noted, Petitioner was in withholding-only

proceedings. Therefore, the IJ’s decision focused on only

three issues: the headings in his decision are “UNABLE OR

UNWILLING TO PROTECT,” “INTERNAL

RELOCATION,” and “PROTECTION UNDER THE

CONVENTION AGAINST TORTURE.”

Given the limited relief to which Petitioner was entitled,

her Notice of Appeal would not leave the BIA “guessing” as

to “how and why” Petitioner thought that the IJ had erred.

Casas-Chavez, 300 F.3d at 1090. Petitioner wrote that “the

police from my government of Honduras didn’t do nothing to

help me.” That statement put the BIA on notice that

Petitioner believed the IJ was incorrect in concluding that she

had failed to meet her burden of demonstrating that the police

would be unable or unwilling to protect her. Additionally,

Petitioner wrote that “[t]he gangs MS-13 there in all the

places in Honduras.” In context, that statement notified the

14 NOLASCO-AMAYA V. GARLAND

BIA that Petitioner disputed the IJ’s conclusion that she could

relocate safely within Honduras.2

The only reason for Petitioner to have raised those issues

is to identify how the IJ erred in his decision. When a

petitioner submits a Notice of Appeal without counsel, she

need not state explicitly that “the IJ was wrong because”

before explaining the grounds for her appeal.

Garcia-Cortez supports our conclusion. In that case, we

ruled that the BIA should not have dismissed the pro se

petitioners’ appeal summarily. 366 F.3d at 750. The IJ had

concluded that the petitioners were ineligible for cancellation

of removal because they had not been in the United States

before a particular date. Id. at 750–51. In their Notice of

Appeal, petitioners argued that the IJ “made a mistake”

because they gave him proof establishing how long they had

been in the country. Id. at 751. They mentioned that they

had submitted a letter from an employer and complained that

the IJ did not consider the letter. Id. They also wrote that the

IJ did not give them notice, before their hearing, that they

should present witnesses. Id. We held that the Notice of

Appeal was sufficiently specific because the petitioners

explained “in a short and plain statement exactly how and

why the IJ erred.” Id. at 753. Similarly, here, Petitioner

explained, in a short and plain statement, that the government

2

The dissent asserts that the argument Petitioner makes in her notice

of appeal to the BIA is inconsistent with her testimony before the IJ.

Dissent at 18. But that assertion is irrelevant because it conflates the

merits with the clarity of the claim expressed in the notice of appeal. See

id. (“[H]ow could the IJ have erred in not addressing an argument

Petitioner did not make?”). A petitioner’s failure to preserve an issue

before an IJ pertains to the merits of that issue, not to the specificity of its

presentation to the BIA.

NOLASCO-AMAYA V. GARLAND 15

of Honduras did nothing to help her and that the MS-13 gang

operated throughout Honduras; both assertions directly

contradicted the IJ’s conclusions.

Petitioner contends that her Notice of Appeal, read

liberally, also establishes that she presented the argument

that she will be tortured if returned to Honduras. The IJ

concluded that Petitioner had not demonstrated that it is more

likely than not that she would be tortured if she is returned.

The Notice of Appeal states, in conclusory fashion, that

“these people are going to torture me or kill me” but does not

point to evidence offered in support of that assertion. We

have explained that “[t]he alien need not challenge every

basis for the IJ’s decision.” Id. Petitioner’s failure to discuss,

in her Notice of Appeal, past torture or the likelihood of

future torture does not mean that her entire appeal is

automatically subject to summary dismissal. She adequately

set forth the reasons for her appeal by highlighting the IJ’s

errors in regard to government acquiescence and internal

relocation.

In summary, Petitioner’s Notice of Appeal was

sufficiently specific to inform the BIA of two issues that she

was challenging, given her status as a pro se litigant.

Therefore, the BIA violated her right to due process by

summarily dismissing her appeal. Whether Petitioner’s

claims are meritorious is not before us; that question is for the

BIA to decide in the first instance. We remand to the BIA for

it to consider the merits of Petitioner’s claims.

PETITION DISMISSED in part, GRANTED in part;

REMANDED. The parties shall bear their own costs on

appeal.

16 NOLASCO-AMAYA V. GARLAND

CALLAHAN, Circuit Judge, dissenting:

I respectfully dissent because, in my view, the majority

has allowed the general rule governing the liberal

interpretation of pro se filings to overwhelm and virtually

nullify the BIA’s rules requiring petitioners to specify the

grounds for their administrative appeals with particularity,

even though we have previously held that these requirements

apply to pro se litigants. Garcia-Cortez v. Ashcroft, 366 F.3d

749, 753 (9th Cir. 2004).

Admittedly, these two legal principles are in tension. The

majority is certainly correct to acknowledge and account for

the longstanding general rule that we liberally construe filings

by pro se litigants. See, e.g., Agyeman v. I.N.S., 296 F.3d

871, 878 (9th Cir. 2002) (refusing to require pro se litigant to

use “exact legalese” in a notice of appeal to the BIA). On the

other hand, the BIA requires that all notices of appeal meet

“rather strict specificity requirements.” Toquero v. I.N.S.,

956 F.2d 193, 195 (9th Cir. 1992). Noncitizens challenging

an IJ’s decision must identify “the particular details

contested,” “how the evidence” supports the noncitizen’s

arguments, and “why the IJ erred.” Id. (internal quotations

and citation omitted). It is insufficient to merely “make[] a

generalized and conclusory statement about the proceedings

before the IJ.” Id. These requirements apply even where the

petitioner proceeds pro se. Garcia-Cortez, 366 F.3d at 750,

753. Thus, while we liberally construe the notices of appeal

filed by pro se petitioners, the notices must still be sufficient

to provide “meaningful notice of the precise issues contested

on appeal.” Id. at 754.

Petitioner’s notice of appeal here presented two

contentions in support of her CAT claim. First, she stated

NOLASCO-AMAYA V. GARLAND 17

that she could not return to Honduras because she and her

daughters would be tortured or killed, and that “the police

from my government of Honduras didn’t do nothing to help

me.” The majority holds that this contention adequately “put

the BIA on notice that Petitioner believed the IJ was incorrect

in concluding that she had failed to meet her burden of

demonstrating that the police would be unable or unwilling to

protect her.” Maj. at 13.

But under the BIA’s specificity requirements, it is not

sufficient to merely assert that the IJ wrongly determined that

the government was unable or willing to protect her without

providing any further details about how or why the IJ erred.

Petitioner’s statement—even as liberally construed by the

majority—is no more than a partial restatement of the legal

standard governing the availability of CAT relief, which

requires that a petitioner demonstrate that “she will more

likely than not be tortured with the consent or acquiescence

of a public official if removed to her native country.”

Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir.

2020). Petitioner’s statement “did not indicate which facts

were in contention and how the IJ misinterpreted the

evidence.” Toquero, 956 F.2d at 196. Because Petitioner

provided the BIA with no more than a generalized claim that

the IJ should have granted her CAT relief, her claim fails to

adequately set forth the basis for her appeal under applicable

BIA regulations. See Reyes-Mendoza v. I.N.S., 774 F.2d

1364, 1365 (9th Cir. 1985) (affirming BIA’s summary

dismissal of appeal where the notice of appeal contained only

the conclusory statement that there was a “[w]rongful denial

of suspension of deportation”); see also Toquero, 956 F.2d

at 195 (stating that notice is inadequate where it only states

“that [the] IJ’s decision was ‘against the weight of the

evidence,’ ‘against the law controlling the case,’ and

18 NOLASCO-AMAYA V. GARLAND

‘arbitrary and capricious’” (quoting Lozada v. I.N.S.,

857 F.2d 10, 13 (1st Cir. 1988))).

Petitioner’s second contention in her notice of appeal, that

“[t]he gangs MS-13 [are] there in all the places in Honduras,”

suggests that the IJ erred in concluding that Petitioner could

safely relocate within Honduras. Maj. at 13. This claim at

least identifies a specific gang and contains the allegation that

the gang’s presence is pervasive throughout the country. But

in the context of Petitioner’s specific case, it does little to

identify what claims she intends to raise on appeal. Petitioner

did not mention any issues with gangs in her declaration in

support of her applications for relief before the IJ, and

pointedly failed to argue at her hearing (even after being

prompted by the IJ) that the individuals who had threatened

her family were affiliated with a gang. Certainly, the

underlying merits of Petitioner’s substantive argument that

she could not safely relocate is not currently before us;

instead, we are currently called upon to evaluate only the

sufficiency of her notice of appeal. But the notice of appeal’s

inconsistency with Petitioner’s prior position that there was

no gang involvement in her case left the BIA having to guess

at how Petitioner claimed the IJ erred. After all, the IJ

expressly gave her the opportunity to argue she was

threatened by MS-13, and she refused to do so—how could

the IJ have erred in not addressing an argument Petitioner did

not make? The notice thus left the BIA in the position of

having to “search through the record and speculate on what

possible errors” Petitioner is claiming that the IJ made on this

point. Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820 (9th Cir.

2003) (quoting Matter of Valencia, 19 I. & N. Dec. 354, 355

(BIA 1986)).

NOLASCO-AMAYA V. GARLAND 19

Contrary to the majority’s assertion, Petitioner’s

conclusory statements in her notice of appeal are not as

detailed as the petitioners’ notice at issue in Garcia-Cortez.

There, the pro se petitioners filed the following justification

for their administrative appeal:

We are asking to go back to the Judge because

we believe he made a mistake. We had asked

for suspension of deportation and gave the

Judge proof that we had been in U.S. for more

than 10 years. José had a letter from the

employment he had 10 years ago and the

Judge didn’t even take that into account. We

don’t have any bad record and never got

welfare or anything like that. We have kids

born in U.S. We thought we didn’t need

Attorney because when we gave papers to the

Judge he took them and said they were good.

The Judge said the last time that we should

have brought witnesses but he did not tell us

ahead of time. We now want to get Attorney

to help us with this and separate written briefs

and send you copies of all our proofs so you

can send our case back to that Judge because

we are here 10 yrs.

Garcia-Cortez, 366 F.3d at 751. We held that this satisfied

the specificity standards for two reasons. First, while the

petitioners did not use legally precise terminology, they

highlighted a specific piece of evidence (the letter from one

of the petitioner’s former employers) that the IJ had failed to

give sufficient weight. Id. at 753. Second, they concretely

identified a specific procedural right (the right to call

witnesses in support of their application for cancellation of

20 NOLASCO-AMAYA V. GARLAND

removal) which the IJ had arguably not adequately advised

them of. Id. at 753–54. Here, Petitioner cites no specific

evidence that the IJ failed to properly consider in concluding

that the Petitioner had not met her burden to show that the

Honduran government would acquiesce in her torture, nor

does she explain what (if any) legal rights the IJ deprived her

of at her hearing.

Nor do our prior decisions in Coronado v. Holder,

759 F.3d 977 (9th Cir. 2014), and Ren v. Holder, 648 F.3d

1079 (9th Cir. 2011), have any particular relevance here.

Those cases did not involve summary dismissals and thus did

not apply the “rigorous requirements” of 8 C.F.R.

§ 1003.1(d)(2)(i)(A) applicable in this context. Toquero,

956 F.2d at 196; see also Garcia-Cortez, 366 F.3d at 753.

The majority’s admission that those cases “arose in a

different context,” Maj. at 12, is significant; the standards

applicable to the petitioners in those cases were simply not

comparable to the standard that applies to Petitioner here.

While we liberally construe pro se filings, the fact that a

litigant is proceeding pro se does not mean that we must

ignore the applicable and governing legal standards. Cf. Soto

v. Sweetman, 882 F.3d 865, 872 (9th Cir. 2018) (“This rule

[requiring that courts liberally construe pro se filings]

exempts pro se inmates from strict compliance with the

summary judgment rules, but it does not exempt them from

all compliance.”); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.

1995) (“Although we construe pleadings liberally in their

favor, pro se litigants are bound by the rules of procedure.”).

Even liberally construed, Petitioner’s notice of appeal at best

expressed generalized disagreement with the IJ’s conclusions

regarding the acquiescence of the Honduran government, and

alleged that internal relocation was infeasible for a reason that

NOLASCO-AMAYA V. GARLAND 21

she declined to pursue before the IJ. This is not sufficient to

provide “meaningful notice of the precise issues contested on

appeal.” Garcia-Cortez, 366 F.3d at 754. Accordingly, I

respectfully dissent.