Specificity in BIA Notices of Appeal: The Third Circuit’s Clarification in Maynor Xitamul-Aguin v. Attorney General

1. Introduction

In Maynor Estuardo Xitamul-Aguin v. Attorney General of the United States, the United States Court of Appeals for the Third Circuit dismissed a Guatemalan petitioner’s challenge to his removal order for failing to exhaust administrative remedies. The crux of the case revolves around how detailed a Notice of Appeal (NOA) to the Board of Immigration Appeals (BIA) must be to preserve issues for judicial review when a separate merits brief is never filed. Although the opinion is marked “not precedential,” it offers an important procedural roadmap for immigration practitioners within the Third Circuit—and potentially elsewhere—on the minimum specificity required under 8 C.F.R. § 1003.3(b).

• Petitioner: Maynor Estuardo Xitamul-Aguin, a Guatemalan national who entered the United States as a minor after gang violence.
• Respondent: Attorney General of the United States.
• Key Issue: Whether a bare-bones NOA, unaccompanied by a timely BIA brief, is sufficient to “exhaust” claims later raised in the court of appeals.

2. Summary of the Judgment

The Third Circuit dismissed the petition for review. It held that because the NOA failed to “specifically identify the findings of fact [or] the conclusions of law…being challenged,” as required by 8 C.F.R. § 1003.3(b), the petitioner had not exhausted his administrative remedies under 8 U.S.C. § 1252(d)(1). Consequently, none of his substantive arguments—past persecution, nexus, particular social group (PSG) cognizability, relocation, and Convention Against Torture (CAT) protection—were preserved for federal-court review.

3. Analysis

3.1 Precedents Cited

1. Santos-Zacaria v. Garland, 598 U.S. 411 (2023) – Clarified that INA exhaustion is a mandatory claims-processing rule, not jurisdictional. The Third Circuit applied its mandatory nature once the Government invoked it.
2. Aguilar v. Attorney General, 107 F.4th 164 (3d Cir. 2024) – Reaffirmed that courts must enforce exhaustion when properly raised.
3. Yan Lan Wu v. Ashcroft, 393 F.3d 418 (3d Cir. 2005) – Endorsed liberal construction of NOAs but acknowledged limits.
4. Hoxha v. Holder, 559 F.3d 157 (3d Cir. 2009) – Stressed that even under liberal construction, an NOA must be “legally sufficient” to alert the BIA.
5. Borges v. Gonzales, 402 F.3d 398 (3d Cir. 2005) – Addressed standards of review for BIA decisions, cited for methodology.

These authorities shaped the Court’s view that while generous reading is permitted, there remains a threshold the NOA must cross to put the BIA on notice of specific contested issues.

3.2 Legal Reasoning

The Court’s reasoning followed three sequential steps:

1. Regulatory Benchmark: 8 C.F.R. § 1003.3(b) obliges an appellant to state with specificity the facts or law being challenged. Supporting authority must be cited for legal questions; facts in dispute must be pinpointed for factual challenges.
2. Application to Each Claim:
   • Past Persecution: NOA did mention “failure to seek medical treatment is not deciding factor,” but BIA addressed this; still inadequate without nexus exhaustion.
   • Nexus: NOA lacked identification of which IJ factual findings were wrong. Therefore, nexus argument not preserved.
   • Particular Social Group (PSG): NOA made only a generic reference to “kinship ties and family composition” without confronting the IJ’s “non-cognizable” ruling or citing supporting caselaw.
   • CAT: Merely tacked on a boilerplate sentence with no elaboration—insufficient to raise the issue.
3. Mandatory Enforcement: Because the Government invoked exhaustion, the Court, under Aguilar, was compelled to dismiss. The petitioner’s failure to timely file a merits brief magnified the inadequacy because the NOA was the sole submission before the BIA.

3.3 Impact of the Decision

Although not precedential, the opinion carries practical significance:

• Heightened Drafting Vigilance: Immigration attorneys must draft NOAs as if they are the only document the BIA will see.
• Strategic Deadlines: Missing the BIA briefing deadline is now riskier; the resulting record may foreclose federal judicial review.
• Clarification of “Liberal” Interpretation: The Court delineated the boundary between liberal reading and insufficiency, guiding future litigants on how much detail is needed.
• Ripple Effect on BIA Practice: The BIA may more confidently dismiss inadequately raised contentions, citing the Third Circuit’s enforcement.

4. Complex Concepts Simplified

• Exhaustion of Administrative Remedies: Before a federal court can review an immigration claim, the applicant must give the BIA a fair chance to rule on it first. Failing to do so (for instance, by omitting an argument in the NOA) “forfeits” that issue.
• Notice of Appeal (NOA): A one-page standard BIA form filed to begin an appeal. It must succinctly lay out disputed facts, contested legal conclusions, and citations if applicable.
• Particular Social Group (PSG): A protected category under asylum law. To be “cognizable,” the group must be socially distinct and defined with particularity in the applicant’s society.
• Nexus: The requirement that persecution be because of a protected ground like race, religion, nationality, political opinion, or PSG membership.
• Convention Against Torture (CAT): Protection that prevents removal if an individual is more likely than not to be tortured, with government acquiescence, upon return.

5. Conclusion

The Third Circuit’s decision in Xitamul-Aguin underscores a procedural—but critical—lesson: broad-brush or boilerplate statements in a Notice of Appeal do not satisfy the INA’s exhaustion requirement where no BIA brief follows. Counsel must explicitly identify every factual and legal error they intend to raise, cite supporting authority, and connect arguments to the IJ’s specific findings. Failure to do so leaves the BIA unable to adjudicate those claims and, in turn, deprives the court of appeals of jurisdiction to review them once the Government invokes exhaustion. While styled as “not precedential,” the opinion will undoubtedly influence advocacy practices and bolster the BIA’s authority to summarily dismiss insufficiently articulated appeals.