In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1994
SAMUEL ADEBISI AWE,
Petitioner-Appellant,
v.
JOHN ASHCROFT, Attorney General,
Respondent-Appellee.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
No. A29-451-756
____________
ARGUED JANUARY 16, 2003—DECIDED MARCH 31, 2003
____________
Before FLAUM, Chief Judge, and COFFEY and RIPPLE,
Circuit Judges.
FLAUM, Chief Judge. Petitioner Samuel Adebisi Awe
seeks review of a final order of the Board of Immigration
Appeals (“BIA”) summarily dismissing Awe’s appeal
pursuant to 8 C.F.R. § 3.1(d)(2)(i)(D) for his failure to file
a separate written brief after indicating his intent to do
so. For the following reasons, we affirm the BIA’s final
order denying Awe asylum and withholding of deporta-
tion and granting him voluntary departure to Nigeria.
I. BACKGROUND
Awe, his wife Julianah Apeke Awe, and their three
children, Olayemi Adenike Awe, Temitope Adesola Awe,
2 No. 02-1994
and Oluwagbenga Kolawole Awe, are natives and citizens
of Nigeria who legally entered the United States at dif-
ferent times on nonimmigrant visitor visas. Each member
of the Awe family subsequently remained in the United
States beyond the date authorized by his or her visa, and
in 1998 the Immigration and Naturalization Service (“INS”)
served the Awes with Notices to Appear, charging them
under § 237(a)(1)(B) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1227(a)(1)(B), with overstaying
their visitors’ visas. The Awes conceded deportability at
their initial appearance and now seek asylum under INA
§ 208, 8 U.S.C. § 1158, and withholding of deportation
under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), based on a
well-founded fear that they would be persecuted for their
political opinions if forced to return to Nigeria.1
Awe is a Christian and a member of the Yoruba tribe,
which comprises approximately 20% of the population in
Nigeria. During the last 33 years he has traveled repeatedly
to the United States from Nigeria, mostly for educational
and medical reasons. Awe first entered the United States
as a graduate student in 1969 and voluntarily returned
to Nigeria to work as a civil servant after earning two
degrees at California State University at San Luis Obispo.
He reentered the United States in 1976 to attend the
University of Wisconsin and then returned to Nigeria in
1979 after earning a PhD. In 1985 Awe again came to
the United States, this time on a medical visa, and re-
turned to Nigeria after receiving treatment for a kidney
1
The INS initiated removal proceedings against Sam, Julianah,
Olayemi, Temitope, and Oluwagbenga Awe as individuals, but
their cases were consolidated for hearing by the IJ. The IJ’s de-
cision and subsequent appeals by the Awes focus solely on Sam’s
situation as it relates to the family’s claims for asylum and
withholding of deportation; thus, we refer to the entire Awe fam-
ily in this appeal through Sam Awe, or just Awe.
No. 02-1994 3
ailment which continues to plague him today.2 Before his
most recent return to the United States in 1995, Awe
served as Minister of Agriculture in Nigeria from 1993
to 1995 under former President Abacha. Awe now lives
with his family in Milwaukee, Wisconsin, and teaches
middle school there.
The basis for Awe’s requests for asylum and withhold-
ing of deportation arises from his tenure as Minister of
Agriculture in Nigeria. Specifically, Awe claims that the
Nigerian government persecuted him in the past for his
political beliefs, which Awe defines as his lack of political
allegiances in Nigeria combined with his perceived pro-
American sympathies, which he allegedly acquired while
living and studying in the United States. Awe contends
that two incidents in particular prove that he suffered
persecution by the Nigerian government: (1) he was fired
from his post as Minister of Agriculture for not paying
bribes to his supervisors, and (2) he endured a two-hour
interrogation in which he was asked about his political
affiliations and whether he represented America or the
CIA. Awe also asserts a fear of future persecution in
Nigeria based on these past incidents and maintains
that, notwithstanding the election of a new president in
1999, the country conditions in Nigeria have gotten worse
and not better.
After a hearing the Immigration Judge (“IJ”) denied
Awe’s application for asylum and withholding of deporta-
tion because he found that Awe had proved neither a
reasonable, well-grounded fear of future persecution nor a
2
Awe’s attorney stated at oral argument that, in addition to
filing for asylum and withholding of deportation, he had requested
a stay of deportation from the INS so that Awe could remain
in the United States and receive necessary medical treatment
for his kidney condition.
4 No. 02-1994
clear probability of being persecuted upon his return to
Nigeria, as required by law. See INA § 101(a)(42)(A), 8
U.S.C. § 1101(a)(42)(A); 8 C.F.R. §§ 208.13(b)(2)(i)(B),
208.16(b)(2); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);
INS v. Stevic, 467 U.S. 407 (1984). The IJ found that
Awe’s loss of his appointment as Minister of Agriculture
and two-hour interrogation did not rise to the level of
persecution. The IJ also noted that the election of a new
president in Nigeria not only promised a more stable
democratic government but suggested that any lingering
hostility toward Awe that might have existed in the past
regime would not likely be present in the new one.
Awe timely appealed his case to the BIA by submitting
a Notice of Appeal, Form EOIR-26, on which he checked
the box indicating that he intended to file a separate
written brief in support of his appeal. Also, in the space
provided on the Notice of Appeal itself, Awe stated in
some detail his reasons for appealing the IJ’s decision. At
that time Awe requested, and later received, an addi-
tional 30 days to file his brief; however, he never submit-
ted a brief or an explanation for its absence to the BIA.
One month after Awe’s brief was due but never filed, the
INS filed a brief expressing its support for the IJ’s deci-
sion. Two months later the BIA summarily dismissed
Awe’s appeal, citing 8 C.F.R. § 3.1(d)(2)(i)(D) as author-
ity. That particular regulation provides for summary
dismissal of an appeal in any case in which the party
“indicates on Form EOIR-26 or Form EOIR-29 that he
or she will file a brief or statement in support of the ap-
peal and, thereafter, does not file such brief or statement,
or reasonably explain his or her failure to do so, within
the time set for filing.” The BIA’s order also stated that
“upon review of the record” the BIA was “not persuaded
that the Immigration Judge’s ultimate resolution of this
case was in error.”
No. 02-1994 5
In the instant appeal, Awe does not challenge the BIA’s
decision to dismiss his petition for procedural reasons but
instead argues that the BIA’s substantive review of the
IJ’s decision was flawed. Specifically, Awe argues that
the BIA’s decision on the merits of his case was “woe-
fully inadequate” because it “merely rubber-stamp[ed]” the
IJ’s conclusion that Awe had not established past or fu-
ture persecution. In response, the INS insists that the
BIA did not make a merits determination of Awe’s case
but instead relied solely on § 3.1(d)(2)(i)(D) as the basis
for its decision. Thus, according to the INS, the only issue
now properly before this court is a procedural one. The
INS further asserts that Awe waived his right to chal-
lenge the BIA’s procedural dismissal by failing to raise
the issue in his opening brief, but maintains that even if
Awe had challenged it, the BIA’s dismissal of his appeal
was appropriate and should be affirmed.
II. ANALYSIS
This court reviews only the final determinations of the
BIA. See 8 U.S.C. § 1252(a)(1) (governing judicial review
of final orders of removal); Balazoski v. INS, 932 F.2d
638, 640 (7th Cir. 1991). We do not review directly the
decisions of the IJ, except in those cases where the BIA
has expressly adopted the IJ’s findings. See Begzatowski
v. INS, 278 F.3d 665, 670 (7th Cir. 2002). Here, the BIA
issued per curiam a one-page explanation of its decision
to dismiss Awe’s appeal and affirm the IJ’s resolution of
his case. In its written order, the BIA invoked § 3.1(d)(2)
(i)(D) as its authority to dismiss certain procedurally de-
fective appeals and found Awe’s appeal to be procedurally
defective because Awe indicated that he would file a
brief but never did and never explained why. The BIA
then stated that “upon review of the record” it was “not
persuaded that the Immigration Judge’s ultimate resolu-
6 No. 02-1994
tion of this case was in error,” and so it exercised its dis-
cretion under § 3.1(d)(2)(i)(D) to dismiss Awe’s appeal.
Before we decide whether the BIA properly dismissed
Awe’s petition, we must first address the INS’s contention
that Awe waived his right to challenge the procedural
grounds for the BIA’s decision because he failed to raise
the issue in his appellate brief. See Holman v. State, 211
F.3d 399, 406 (7th Cir. 2000) (finding arguments not
raised in initial appellate brief waived); Schoenfeld v.
Apfel, 237 F.3d 788, 793 (7th Cir. 2001) (finding arguments
not raised before trial court waived). In Holman we held
that appellants who advanced a legal theory at oral argu-
ment that they had never before raised in their briefs
on appeal had waived that new argument. 211 F.3d at 406.
Similarly, in United States v. Conley, 291 F.3d 464, 468
n. 3 (7th Cir. 2002), we held that the appellant waived
his right to challenge jury instructions at oral argument
when he had neither presented the issue to the trial court
nor raised it in his briefs on appeal. See also Kasper v. St.
Mary of Nazareth, 135 F.3d 1170, 1174 (7th Cir. 1998)
(finding arguments that appear for the first time at oral
argument waived).
Here, Awe made no reference in his appellate brief to
the BIA’s decision to dismiss his appeal under § 3.1(d)(2)
(i)(D), and he offered no explanation for why he had
failed to submit a separate written brief to the BIA. At
oral argument, however, Awe’s attorney acknowledged
that he had missed the BIA’s briefing deadline, but he
maintained that his mistake was not fatal because the
Notice of Appeal gave the BIA a “fair appraisal” of the
issues to be addressed in Awe’s appeal.3 Because Awe
3
Though Awe did not cite any case law supporting this theory
at oral argument, at least one other circuit has held that the
(continued...)
No. 02-1994 7
failed to present this alternative notice theory at any
point prior to oral argument, we find that it is waived. See
Holman, 211 F.3d at 406; Conley, 291 F.3d at 468 n. 3.
Even assuming Awe had not waived his right to chal-
lenge the BIA’s procedural dismissal, we note that 8
C.F.R. § 3.1(d)(2)(i)(D) explicitly gives the BIA authority
to dismiss procedurally defective appeals, and we have
condoned the BIA’s use of this power in cases similar to
this one. See Stroe v. INS, 256 F.3d 498, 499 (7th Cir.
2001) (holding summary dismissal appropriate where
party indicated he would file brief, requested and received
30-day filing extension, and never filed brief nor ex-
plained why he had not); accord Rioja v. Ashcroft, 317 F.3d
514, 515-16 (5th Cir. 2003). We do not see anything in the
record here to suggest that the BIA inappropriately exer-
cised its power in summarily dismissing Awe’s appeal
under § 3.1(d)(2)(i)(D), and we therefore affirm its deci-
sion on these grounds.
Although Awe cannot overcome the BIA’s procedural
dismissal of his case, he insists that the BIA made an
alternative decision on the merits that was inadequate
and must be remanded to the BIA for further explanation.
Awe refers us to the BIA’s written opinion, specifically
its statement that “upon review of the record, we are
not persuaded that the Immigration Judge’s ultimate
resolution of this case was in error,” for proof that the
BIA actually undertook a substantive review of his case
and issued a merits decision. At oral argument attorney
3
(...continued)
BIA may excuse a petitioner’s failure to file a brief if the Notice
of Appeal is sufficiently thorough. See Casas-Chavev v. INS,
300 F.3d 1088, 1091 (9th Cir. 2002) (upholding BIA’s strict
specificity requirement for appealing decisions of IJs, but per-
mitting petitioners to provide requisite reasons in separate brief
or on Notice of Appeal form).
8 No. 02-1994
for the INS said that BIA opinions often include such
statements, and it was his opinion that the BIA intended
only to inform petitioners that it had looked for, and not
found, any egregious constitutional violations in the record.
If, as Awe suggests, the BIA intended that statement
alone to serve as a determination on the merits, we
would likely find such a decision inadequate. See Mansour
v. INS, 230 F.3d 902, 907 (7th Cir. 2000) (stating that
court will uphold BIA’s decision unless it was made “with-
out a rational explanation” or was otherwise inadequate
in its analysis of the record on appeal). But without specu-
lating as to what exactly the BIA meant by this partic-
ular sentence in Awe’s case, we conclude that the BIA’s
concentration in the rest of its opinion on its reasons for
dismissing the case under § 3.1(d)(2)(i)(D) indicates that
it was not making a determination on the substantive
merits of Awe’s case. Since our appellate review is lim-
ited to the BIA’s final orders of removal, we decline to
look beyond the BIA’s stated, procedural reasons for
dismissing Awe’s appeal and will not undertake a review
of the merits of Awe’s case as decided by the IJ. See
INA § 242(a)(1), 8 U.S.C. § 1252(a)(1); Balazoski, 932 F.2d
at 640.
III. CONCLUSION
We find that the BIA appropriately dismissed Awe’s
appeal under 8 C.F.R. § 3.1(d)(2)(i)(D) for failure to file
a brief, and we therefore AFFIRM the BIA’s final order
denying Awe asylum and withholding of deportation and
granting him voluntary departure to Nigeria.
No. 02-1994 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-31-03