Celia Apaestegui de Abanto v. Eric Holder, Jr.

Case: 13-60104 Document: 00512500292 Page: 1 Date Filed: 01/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60104
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 14, 2014
Lyle W. Cayce
Clerk
CELIA APAESTEGUI DE ABANTO,
Petitioner,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A 088 065 940
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Celia Apaestegui de Abanto, an illegal alien who is a native and citizen
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-60104 Document: 00512500292 Page: 2 Date Filed: 01/14/2014
No. 13-60104
of Peru, has filed a petition for review of the summary dismissal by the Board
of Immigration Appeals (“BIA”) of her appeal of the denial of relief from
removal under the Convention Against Torture (“CAT”). Summary dismissal
is authorized if, among other things, 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 to do so, within the time set for filing.” 8 C.F.R. § 1003.1(d)-
(2)(i)(E); see Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010).
Apaestegui de Abanto, represented by counsel, indicated on the notice of
appeal form (Form EOIR-26) that she would file a brief but failed to do so.
Further, she did not avail herself of § 1003.1(d)(2)(i)(E)’s provision for lenity by
explaining her failure to file a brief or statement within the time in which she
was allowed to file the brief or separate statement. Thus, the BIA was within
its “statutorily designated discretion” summarily to dismiss the appeal. See
Rioja v. Ashcroft, 317 F.3d 514, 515−16 (5th Cir. 2003).
Accordingly, this court need not reach Apaestegui de Abanto’s contention
that her notice of appeal otherwise apprised the BIA of the grounds for her
appeal. See id. at 516. Nor do we reach her arguments going to the merits of
her claim for relief under the CAT.
The petition for review is DENIED.
2