Tenth Circuit Affirms Broad BIA Discretion to Summarily Dismiss Appeals for Vague NOAs and Late Briefs
Pena-Sanchez v. Bondi, 24-9550 (10th Cir. July 24, 2025)

I. Introduction

In Pena-Sanchez v. Bondi, the United States Court of Appeals for the Tenth Circuit confronted a recurring procedural dilemma in immigration litigation: how strictly the Board of Immigration Appeals (BIA) may enforce its own filing rules when appellants promise, but fail, to submit a timely supporting brief. The petitioners — a Colombian family seeking relief from removal — asked the Court to set aside the BIA’s summary dismissal of their appeal and its refusal to accept a brief filed 25 minutes after an already-extended deadline. The Tenth Circuit denied relief, endorsing the BIA’s broad discretion to:

1. dismiss an appeal summarily when the Notice of Appeal (NOA) does not itself articulate specific errors (8 C.F.R. § 1003.1(d)(2)(i)(A)), and/or when a promised brief never arrives on time (§ 1003.1(d)(2)(i)(E)); and
2. decline to excuse even a minimal late filing absent persuasive, well-documented justification.

The decision fortifies the precedential line that procedural compliance before the BIA is not a mere technicality but a jurisdictional lifeline.

II. Summary of the Judgment

• Late Brief Rejection: The BIA acted within its discretion under 8 C.F.R. § 1003.3(c)(1) when it refused to accept a brief submitted 25 minutes late after an extension had already been granted. Petitioners offered only counsel’s misunderstanding of Eastern vs. Mountain Time and attached no affidavits or evidence.
• Summary Dismissal: The BIA properly relied on two independent regulatory bases: (A) the NOA failed to “meaningfully apprise” the Board of specific issues, and (E) petitioners indicated they would file a brief and then did not do so on time or provide a reasonable explanation.
• No Due Process Violation: Petitioners had notice of the rules and multiple opportunities to comply. Their own procedural missteps, not BIA rigidity, caused dismissal.

III. Analytical Commentary

A. Precedents and Authorities Cited

1. Oluwajana v. Garland, 33 F.4th 411 (7th Cir. 2022) – abuse-of-discretion review of late-brief denials.
2. Argueta-Orellana v. Att’y Gen., 35 F.4th 144 (3d Cir. 2022) – BIA power to dismiss for failure to file promised brief.
3. Nazakat v. I.N.S., 981 F.2d 1146 (10th Cir. 1992) – specificity requirement in NOA.
4. Qiu v. Sessions, 870 F.3d 1200 (10th Cir. 2017) – limits of discretion.
5. Cortina-Chavez v. Sessions, 894 F.3d 865 (7th Cir. 2018) – subsections (A) and (E) are independent bases for dismissal.
6. Nolasco-Amaya v. Garland, 14 F.4th 1007 (9th Cir. 2021) – detailed NOA or timely brief can salvage appeal.
7. Regulatory Framework: 8 C.F.R. §§ 1003.1(d)(2), 1003.3(b)&(c).

By aligning with the Seventh and Ninth Circuits, the Tenth Circuit cements cross-circuit consensus on two points: dual independence of § 1003.1(d)(2) grounds and the BIA’s discretion over late filings.

B. Court’s Legal Reasoning

1. Standard of Review. Abuse-of-discretion for procedural dismissals; de novo for due-process claims.
2. BIA’s Discretion is Broad. The panel emphasized regulatory language (“may”) and petitioners’ repeated non-compliance (defective signature, wrong alien number, untimely brief, missing affidavits).
3. Independent Grounds. Even if the notice deficiency could be forgiven, failure to submit a timely brief was fatal (subsection E).
4. No Prejudice / No Process Denial. Delay of five-and-a-half months in ruling on the late-brief motion did not prejudice petitioners; they offered no curative action the BIA prevented.
5. Responsibility of Counsel. Confusion about time zones is not “extraordinary” and does not warrant equitable tolling or discretionary leniency.

C. Likely Impact

• Litigation Strategy Shift: Immigration practitioners in the Tenth Circuit must treat BIA briefing deadlines as immovable and include specific issues in the NOA as a backstop.
• Uniform National Practice: Reinforces a nationwide trend toward strict enforcement; counsel can no longer rely on circuit-specific leniency.
• Ethical and Malpractice Exposure: The opinion foregrounds counsel-error as a non-excusable ground in this context, heightening malpractice risks.
• Administrative Efficiency: Encourages more concise NOAs and punctual briefing, reducing BIA backlog.

IV. Complex Concepts Simplified

Notice of Appeal (NOA)

The one-page form (EOIR-26) that starts an appeal to the BIA. It must list every factual or legal error the appellant wishes to challenge.

Summary Dismissal

A procedural shortcut that allows the BIA to throw out an appeal without full merits review when threshold defects exist (e.g., vague NOA, missing brief).

8 C.F.R. § 1003.1(d)(2)(i)(A) vs. (E)

(A) – vague or non-specific NOA;
(E) – promise to file a brief followed by failure to do so. Either ground alone is sufficient.

Abuse of Discretion

The appellate standard asking whether the agency’s ruling was arbitrary, capricious, or without rational explanation. High deference.

Procedural Due Process

In immigration, it means notice of proceedings and a meaningful chance to present one’s case. It does not guarantee success, extensions, or leniency.

V. Conclusion

Pena-Sanchez v. Bondi is not a headline-grabbing substantive immigration ruling; its power lies in procedural clarity. The Tenth Circuit confirms:

1. A bare-bones NOA + an unfiled brief = dismissal.
2. Even minimal late filings require compelling, well-documented justification.
3. Counsel error, absent more, seldom triggers equitable rescue.
4. Due process is satisfied when clear rules and multiple warnings are given, even if the result is harsh.

Practitioners must therefore front-load specificity in the NOA, docket BIA deadlines in Eastern Time, and file early rather than just on time. The decision substantially reduces maneuvering room for procedural forgiveness and solidifies a straightforward lesson: in immigration appeals, precision and punctuality are paramount.