IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60212
Summary Calendar
JUAN RIOJA, also know as Juan Rioja-Claure,
Petitioner,
versus
JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
January 22, 2003
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:
Juan Rioja, also known as Juan Rioja-Claure, is a native of
Bolivia who was admitted into the United State in June 1990 for a
temporary period not to exceed January 4, 1991. Because Rioja
remained beyond this temporary period, removal proceedings were
instituted against him. Through retained counsel, Rioja admitted
to all allegations against him in the removal proceedings and
conceded removability. As relief from removal, Rioja sought
political asylum, withholding of removal, and, in the alternative,
voluntary departure. On July 27, 1999, after conducting a hearing,
the Immigration Judge (“IJ”) denied all of Rioja’s requests for
relief.
On August 26, 1999, Rioja filed a timely notice of appeal, in
which Rioja specified that he would be submitting a separate
written brief or statement. On September 25, 2000, Rioja’s counsel
filed a request for a new briefing schedule regarding the filing of
the separate brief or statement, as well as a motion to withdraw as
Rioja’s counsel, which was filed at Rioja’s request. Counsel’s
motion to withdraw was granted, and a new briefing schedule was
issued requiring Rioja to submit his separate brief or statement by
October 27, 2000. On February 27, 2002, the Board of Immigration
Appeals (“BIA”) summarily dismissed Rioja’s appeal because: (1)
Rioja’s notice of appeal form failed to apprise the BIA adequately
of the bases for his appeal; and (2) Rioja had failed to submit a
separate brief or statement as he had indicated he would on the
notice of appeal form.
Rioja now petitions this court for review of the BIA’s order
summarily dismissing his appeal from the denial of his application
for asylum. We review a summary dismissal by the BIA for an abuse
of discretion. See Medrano-Villatoro v. INS, 866 F.2d 132, 134
(5th Cir. 1989); Townsend v. INS, 799 F.2d 179, 182 (5th Cir.
1986). Summary dismissal is authorized if the appellant indicates
on the notice of appeal form “that he or she will file a brief or
statement in support of the appeal and, thereafter, does not file
such brief or statement, or reasonably explain his or her failure
2
to do so, within the time set for filing.” 8 C.F.R.
§ 3.1(d)(2)(i)(D) (2001).1
Rioja cites to Medrano-Villatoro v. INS, 866 F.2d 132, 134
(5th Cir. 1989), in support of his contention that he was not
required to file a separate brief or statement. However, at the
time Medrano-Villatoro was decided, a petitioner’s failure to
submit a separate brief or statement after indicating on the notice
of appeal that such would be filed was not listed in 8 C.F.R.
§ 3.1(d) as a basis for summary dismissal. See 8 C.F.R. § 3.1(d)
(1988). That basis for summary dismissal was added in 1992. See
57 Fed. Reg. 11568, 11570 (Apr. 6, 1992). Accordingly, this
court’s holding in Medrano-Villatoro is not controlling in the
instant case.
Rioja also contends that his failure to file a separate brief
or statement should be excused due to the withdrawal of his counsel
and his insufficient command of English. However, counsel’s motion
to withdraw was filed after Rioja asked his counsel to cease his
representation. Moreover, 8 C.F.R. § 3.1(d)(2)(i)(D) specifically
allows for lenity to an appellant who, within the filing deadline,
reasonably explains his or her failure to file the promised brief
or statement. Despite the lengthy period of time between the
withdrawal of his counsel and the summary dismissal of his appeal,
Rioja failed to seek any such relief.
1
This subsection is now located at 8 C.F.R.
§ 3.1(d)(2)(i)(E) in the 2002 edition.
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The BIA was within its statutorily designated discretion to
summarily dismiss Rioja’s appeal after he indicated on the notice
of appeal form that a separate brief or statement would be filed
and then failed to submit such brief or statement before the filing
deadline. See 8 C.F.R. § 3.1(d)(2)(i)(D). Accordingly, this court
need not consider whether the BIA abused its discretion by
summarily dismissing Rioja’s appeal for failing to apprise the BIA
adequately of the bases for his appeal.
Rioja’s petition for review is DENIED.
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