United States Court of Appeals,
Eleventh Circuit.
No. 97-5428
Non-Argument Calendar.
Carlos Nestor BAYRO; Javier Eduardo Bayro; Sheila Esabella Bayro; Zaida Rosa Bayro;
Rodrigo Alonso Bayro, Petitioners,
v.
Janet RENO, United States Attorney General; Immigration And Naturalization Service,
Respondents.
June 9, 1998.
Petition for Review of an Order of the Immigration and Naturalization Service.
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 "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 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
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.
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 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 they had not perfected their appeal to the Board and, therefore, had not
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.
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.