Hoxha v. Holder (3d Cir. 3/2/09)
SMITH Scirica McKee
The 3d Cir held that an issue raised in the Notice of Appeal but not in the BIA brief was nonetheless exhausted for purposes of the jurisdictional exhaustion requirement. In this case, the NOA to the BIA raised the issue of whether new counsel should have been granted a continuance - but the BIA brief dropped the issue. The CtApp found that it had been exhausted - so that it had jurisdiction - but then the CtApp held that it couldn't address the issue in the first instance, since the Board hadn't ruled on it - so it remanded under Ventura.
The 3d Cir's analysis was as follows:
1. The 3d Cir's case law did not preclude this finding, and it did establish a "liberal exhaustion policy"
2. The regs don't require that issues raised in the NOA also be raised in the brief. Likewise, the instructions to the NOA don't warn that an issue not raised in a brief won't be addressed.
3. Notes that 9th and 6th cirs have held to the contrary. Two 6th Cir cases were dicta, since in those cases, nothing was raised in the NOA but not the brief. Hasan v. Ashcroft, 397 F.3d 417, 420 (6th Cir. 2005); Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004). Distinguished Hassan v. Gonzales, 402 F.3d 429, 433 n.5 (6th Cir. 2005) as dicta, since the CtApp reviewed decision anyway because BIA addressed the waived issue.
Disagrees with Abebe v. Mukasey, ___ F.3d ___, 2009 WL 50120 *3 (9th Cir. 2009) (en banc). The 9th Cir relied in part on a 3d cir case, Bowers v. National Collegiate Athletic Association, 475 F.3d 524, 535 n. 11 (3d Cir. 2007). But that was about the notice of appeal filed in the CtApp. Notes that FRAP 3(c)(1)(B) and 28(a) are framed in mandatory language, whereas 8 CFR 1003.3(b) is not.
4. Principles of exhaustion requires enough specificity to put Agency on notice about claims; has to be specific enough to do so. The NOA was in this case.