Promise-to-File Brief Rule: BIA May Summarily Dismiss and Reject Late Briefs Absent Persuasive Evidence of a Timely Extension Request

1. Introduction

Case: Allaico-Murudumbay v. Bondi, No. 23-7365 (2d Cir. Jan. 8, 2026) (summary order).
Parties: Petitioners Diana Veronica Allaico-Murudumbay, Cristian Paul Ojeda-Quito, and their minor child (natives and citizens of Ecuador) vs. the United States Attorney General.
Agency posture: Petitioners sought review of a BIA decision that summarily dismissed their administrative appeal from an IJ decision denying asylum, withholding of removal, and CAT relief.

Core issues: (i) whether the BIA properly summarily dismissed the appeal when petitioners indicated they would file a brief but did not timely do so; (ii) whether the BIA erred in refusing to accept a late-filed brief based on counsel’s claim that a timely extension request had been mailed/received but not docketed; and (iii) whether the BIA had to articulate or apply a “good cause” standard under the BIA Practice Manual in resolving the late-brief request.

2. Summary of the Opinion

The Second Circuit denied the petition for review, holding that the BIA did not err in summarily dismissing the appeal under 8 C.F.R. § 1003.1(d)(2)(i)(E) after petitioners failed to timely file a promised brief and failed to establish that a timely extension request had been filed. The court further held the BIA did not abuse its discretion in declining to consider the late-filed brief under 8 C.F.R. § 1003.3(c)(1).

The court emphasized that counsel’s unsupported assertions were not evidence, and that the record did not compel a finding that a timely extension request was received but mishandled. Because the BIA dismissed without reaching the IJ’s merits ruling, the court’s review was limited to the BIA’s summary dismissal decision.

3. Analysis

3.1. Precedents Cited

Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005)
Used for the review-scope principle: when the BIA does not reach the merits and instead disposes of a case procedurally, judicial review focuses on the BIA decision actually rendered (here, summary dismissal), not the IJ’s underlying merits analysis.
Ruiz-Espinoza v. Bondi, No. 24-222, 2025 WL 2489169, *1 (2d Cir. Aug. 29, 2025) (summary order)
Cited to show the Second Circuit has previously avoided definitively selecting a standard of review for BIA summary dismissals where the outcome would be the same under any plausible standard (a form of “no need to decide” reasoning).
Zetino v. Holder, 622 F.3d 1007, 1012-14 (9th Cir. 2010) and Huicochea-Gomez v. INS, 237 F.3d 696, 701 (6th Cir. 2001)
Cited for how other circuits review the BIA’s rejection of late briefs: typically abuse of discretion, except that constitutional due process challenges are reviewed de novo. The Second Circuit did not adopt the rule in a precedential holding but treated it as persuasive background.
Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008)
Cited for the Second Circuit’s standard that due process claims in immigration proceedings are reviewed de novo.
Pretzantzin v. Holder, 736 F.3d 641, 651 (2d Cir. 2013)
Central to the evidentiary point: “the arguments of counsel are not evidence.” The panel relied on this principle to reject counsel’s unsworn, unsupported account that an extension request was timely filed/received.

3.2. Legal Reasoning

Regulatory basis for summary dismissal.
The BIA acted under 8 C.F.R. § 1003.1(d)(2)(i)(E), which permits summary dismissal where the appellant indicates on the notice of appeal that a brief will be filed and then does not file the brief (or reasonably explain the failure) within the set time. The court stressed that petitioners signed the notice of appeal “above a warning” that failure to timely file could trigger summary dismissal.
Late-brief discretion and the missing “extension request.”
Under 8 C.F.R. § 1003.3(c)(1), the Board “may” consider an untimely brief—discretionary, not mandatory. Petitioners’ theory was not simply “we had good cause,” but “we timely filed an extension request and it was received but not docketed.” The BIA found that factual premise unpersuasive and therefore maintained summary dismissal.
The BIA did rule on the late-brief motion.
The court rejected the argument that the BIA failed to rule: it acknowledged the late brief and the accompanying explanation, explained why it was not persuaded, and reaffirmed that no timely extension request was filed/granted.
Why the BIA did not need to articulate “good cause.”
The petitioners invoked the BIA Practice Manual’s “good cause” language for late briefs (BIA Practice Manual § 4.7(d)). The Second Circuit held further explanation was unnecessary because the BIA rejected the underlying factual claim that an extension request was timely filed; on that view of the record, the motion failed regardless of the “good cause” framework. The panel also noted the petitioners’ presentation: counsel claimed he did timely request an extension due to medical condition, not that the medical condition prevented him from timely requesting the extension.
Evidentiary insufficiency.
The court agreed that the record did not support petitioners’ assertion that an extension request had been received: the tracking statement referenced a different client; counsel provided no affidavit and no copy of the purported extension request; and there was no showing of a rejected/returned misdirected filing (cf. BIA Practice Manual §§ 3.1(a)(4), 3.1(c)(2)). Invoking Pretzantzin v. Holder, the court treated counsel’s assertions as argument rather than proof.
Standard-of-review avoidance.
The panel acknowledged it has not set a published standard of review for (a) summary dismissals or (b) denial of leave to file a late brief. It nevertheless denied because, on this record, there were “no grounds for remand regardless of the standard applied.”

3.3. Impact

Procedural rigor in BIA appeals: The decision reinforces that indicating an intent to file a brief is a serious procedural commitment; failure to timely file (or to establish a timely extension) can end the appeal without merits review.
Proof requirements for “we filed it” claims: The opinion signals that litigants must substantiate claims of timely filing or agency receipt with concrete evidence (e.g., the actual extension request, sworn declarations, correct tracking records tied to the right case, proof of rejection/return).
Practice Manual arguments have limits: While the BIA Practice Manual is operationally important, the court treated the dispute as turning on the factual premise (whether something was timely filed), not on abstract articulation of “good cause.”
Nonprecedential but practically influential: Although issued as a summary order (nonprecedential), it provides a detailed roadmap for how the Second Circuit may evaluate evidentiary showings in late-brief/extension disputes and how it approaches review-scope when the BIA dismisses on procedure.

4. Complex Concepts Simplified

“Summary dismissal” (BIA): A procedural termination of an administrative appeal without reaching the merits—often triggered by failures like not filing a promised brief by the deadline.
“Abuse of discretion” review: A deferential standard: the reviewing court asks whether the agency’s decision was arbitrary, irrational, or contrary to law, not whether the court would have made the same decision.
“De novo” review: Non-deferential review: the court decides the legal issue anew (commonly used for constitutional due process questions).
“Arguments of counsel are not evidence”: Lawyers’ statements in motions/briefs do not prove facts by themselves; factual assertions generally require supporting documentation or sworn testimony (e.g., affidavits, copies of filings, reliable tracking tied to the correct case).
BIA Practice Manual: The Board’s procedural guidance. It can be highly relevant to how filings are handled (extensions, late briefs, rejections), but it does not automatically overcome a lack of evidentiary support for claimed filings.

5. Conclusion

Allaico-Murudumbay v. Bondi affirms that when an appellant tells the BIA a brief will be filed and then misses the deadline, the BIA may summarily dismiss under 8 C.F.R. § 1003.1(d)(2)(i)(E). It also underscores that persuading the BIA (and the reviewing court) to accept a late brief under 8 C.F.R. § 1003.3(c)(1) requires substantiated proof—unsupported assertions about a “missing” extension request will not suffice. Practically, the decision is a cautionary instruction: preserve appellate rights through timely filing, documented extension requests, and evidence-grade support when procedural mishaps are alleged.