Bayro v. Reno , 142 F.3d 1377 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 97-5428
Non-Argument Calendar
__________________________
INS Nos. A73-720-992, A73-720-976,
A73-720-993, A73-720-994 & A73-720-995
CARLOS NESTOR BAYRO; JAVIER EDUARDO BAYRO; SHEILA
ESABELLA BAYRO; ZAIDA ROSA BAYRO; RODRIGO ALONSO BAYRO,
Petitioners,
versus
JANET RENO, United States Attorney General; IMMIGRATION AND
NATURALIZATION SERVICE,
Respondents.
__________________________
Petition for Review of an Order of the
Immigration and Naturalization Service
__________________________
(June 9, 1998)
Before ANDERSON and DUBINA, Circuit Judges, and HENDERSON, Senior
Circuit Judge.
PER CURIAM:
Carlos N. Bayro, his wife and three children filed this petition for review of a
decision by the Board of Immigration Appeals (“Board”) summarily dismissing
their appeal from an immigration judge’s order finding them deportable and
ineligible for asylum and withholding of deportation. For the reasons that follow,
we affirm.
FACTS
The Bayros are natives and citizens of Peru who entered the United States
as visitors for pleasure in September 1994, authorized to remain only until
March 28, 1995. They stayed in the country beyond that time and, in August
1995, the Immigration and Naturalization Service (“INS”) initiated deportation
proceedings against them. Shortly thereafter, the Bayros applied for asylum,
withholding of deportation, or, alternatively, voluntary departure. At an initial
hearing, Carlos Bayro conceded that the family was deportable, but refused to
designate a country for deportation. At two subsequent hearings, he testified in
support of their applications for asylum and withholding of deportation. He stated
that, because he was an engineer in the mining industry and affiliated with a
political party, he had been threatened many times by the Shining Path guerrillas
who seek to overthrow the government of Peru. He also related an attempt to
shoot him once while he was riding in a limousine owned by a wealthy
businessman and the guerrillas’ attempt to kidnap his daughter on another
occasion. The immigration judge concluded that Bayro’s testimony was
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“disjointed” and inconsistent.1 Given the improving conditions in Peru, the judge
found that Bayro did not have a reasonably objective fear of persecution if he
were to be returned to Peru. The judge did grant the family’s request for
voluntary departure.
The Bayros filed an appeal to the Board on Form EOIR - 26 which directs
the appellants to state in detail the reasons for their appeal. The form has a box
to check to indicate whether the appellant will file a separate brief or written
statement and warns that failure to do so after responding affirmatively to that
question might result in the summary dismissal of the appeal. Bayro gave as
reasons for their appeal that the immigration judge’s concept of the “reasonable
person” was “totally outside of the parameters set forth” in the relevant case law
and because the judge had abused her discretion in finding that he had not
established a well-founded fear of persecution. He also checked the box
indicating that he would file a separate brief or written statement.
The Board received the appeal on August 30, 1996 and granted Bayro
until May 22, 1997 to file his brief or separate written statement. He never
submitted the separate statement or provided any written explanation for his
failure to comply with the aforementioned direction of the Board. On July 30,
1997, the Board summarily dismissed the appeal because the notice of appeal
1
For instance, the immigration judge thought it odd that Bayro never
reported the attempted kidnapping of his daughter to the police. See Oral
Decision of the Immigration Judge at 8.
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failed to meaningfully apprise it of the reasons underlying the appeal. The Board
also noted that Bayro did not file a separate brief or offer any explanation for his
failure to do so.
The Bayros filed a timely petition for review of the Board’s order. While
they identify the Board’s summary dismissal as a part of their statement of the
issues, they in fact do not address that issue in their argument. Substantively,
the brief is entirely devoted to a discussion of the denial of their request for
asylum. The INS filed a motion for summary affirmance, which the court carried
with the case in an order dated April 14, 1998.
DISCUSSION
The INS urges that the court may not reach the merits of the asylum issue
for three reasons: first, that the only question before the court is whether the
Board properly summarily dismissed the appeal and, since the petitioners do not
address that issue in their brief, they have waived judicial review of the Board’s
final order; second, because the petitioners failed to perfect their appeal to the
Board, judicial review is barred because they have not exhausted their
administrative remedies; and, finally, assuming that the petitioners have not
waived judicial review of the summary dismissal, the Board’s action was clearly
correct because petitioners did not meaningfully apprise the Board of the reasons
underlying the appeal without submitting a separate brief or statement even
though a representation to that effect had been made, and because they failed to
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furnish any explanation for the lack of a promised brief or written statement. We
find these arguments persuasive.
First, the law is settled that, when a party lists an issue for appellate review
but does not discuss that question in their argument, they have abandoned it.
See, e.g., Harris v. Plastics Manufacturing Company, 617 F.2d 438, 440 (5th Cir.
1980)(per curiam). Thus, if we assume, as the INS asserts, that the only alleged
error before the court is the Board’s summary dismissal of the appeal, the
petitioners have abandoned that claim and waived their right to judicial review. It
is not necessary, however, to rest our decision on that narrow ground.
The applicable statute provides in part that “[a]n order of deportation or of
exclusion shall not be reviewed by any court if the alien has not exhausted the
administrative remedies available to him as of right under the immigration laws
and regulations ....” 8 U.S.C. § 1105a(c). In a case very similar to the present
one, the Fifth Circuit Court of Appeals held that it could not review an appeal from
a denial of a request for asylum in a deportation proceeding. Townsend v. United
States Department of Justice Immigration and Naturalization Service, 799 F.2d
179 (5th Cir. 1986). In their appeal to the Board, the Townsend petitioners had,
as did the petitioners here, stated only general reasons supporting the appeal,2
and they did not file a separate brief or written statement. The court found that
2
In the notice of appeal, Townsend asserted that he had “sufficiently
established his ‘well founded fear of persecution’ according to present case law.”
Townsend, 799 F.2d at 182.
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they had not perfected their appeal to the Board and, therefore, had not
exhausted their administrative remedies. The petitioners in this case appear to
be in the same position.
Finally, on the merits of the summary dismissal issue, this court has held
that when a petitioner “fails to apprise the Board of the specific grounds for his
appeal, whether by specifying the reasons in the notice of appeal or by
submitting an additional statement or brief, summary dismissal is appropriate.”
Bonne-Annee v. INS, 810 F.2d 1077, 1078 (11th Cir. 1987)(per curiam)(emphasis
in original). There, the petitioner had included only general statements in support
of the appeal in the notice of appeal without submitting the required separate brief
or written statement. Therefore, it appears that the Board’s summary dismissal of
the appeal was appropriate.
The decision of the Board summarily dismissing the appeal is AFFIRMED.
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