Pelagio v. Ashcroft

88 F. App'x 252

Opinion

MEMORANDUM**

Clodualdo Evangelista Pelagio, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary dismissal under 8 C.F.R. § 3.1(d)(2)(i) of his appeal from an immigration judge’s decision denying his application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s summary dismissal for failure to file a brief to determine whether it was appropriate. Vargas-Garcia v. INS, 287 F.3d 882, 884 (9th Cir.2002). We deny the petition.

Pelagio filed a Notice of Appeal (Form EOIR—26) with the BIA indicating his intent to file a brief, then failed to file a brief. Summary dismissal was appropriate because Pelagio’s Notice of Appeal did not sufficiently specify his grounds for appeal. See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820-21 (9th Cir.2003); see also 8 C.F.R. § 3.1(d)(2)©.

The BIA did not abuse its discretion in denying Pelagio’s motion to file a late brief because he did not demonstrate extraordinary circumstances. Cf. Escobar-Ramos v. INS, 927 F.2d 482, 485-86 (9th Cir.1991) (holding BIA should consider filing of late brief upon showing of extraordinary circumstances).

Pelagio also contends that he was denied due process because the BIA did not warn him of possible summary dismissal after it received his notice of appeal. This contention lacks merit because Pelagio’s counsel’s failure to file a brief was not due to any deficiency in the BIA’s notice. See Rojas-Garcia, 339 F.3d at 822.

PETITION FOR REVIEW DENIED.

Footnotes

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 th Cir. R. 36-3.