Chipana-Carbajal v. Immigration & Naturalization Service

MEMORANDUM ^**

Petitioners seek review of the Board of Immigration Appeal’s (“BIA”) dismissal of their appeal from the Immigration Judge’s (“IJ”) denial of their applications for asylum and withholding of deportation. Exercising our jurisdiction under § 242(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1), we dismiss the petition.

All of the substantive arguments in Petitioners’ brief are devoted to addressing the merits of their applications for asylum and withholding of deportation. However, the BIA never considered these arguments; rather, Petitioners’ appeal was summarily dismissed because they failed to file a brief after indicating the intention to do so on their Notice of Appeal. See Singh v. Ashcroft, 361 F.3d 1152, 1156-57 (9th Cir. March 18, 2004). Petitioners offer us no reason to overturn the summary dismissal of their appeal, and issues not raised in an appellant’s opening brief are typically deemed waived. Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996). Nevertheless, we have discretion to review the appropriateness of the BIA’s summary dismissal because the government briefed it, and thus suffers no prejudice from Petitioners’ failure to properly raise the issue before this court. Koemer v. Grigas, 328 F.3d 1039, 1048-49 (9th Cir.2003).

Petitioners’ Notice of Appeal to the BIA, however, was not sufficiently specific to avoid summary dismissal. See Toquero v. INS, 956 F.2d 193, 195 (9th Cir.1992); accord Casas-Chavez v. INS, 300 F.3d 1088, 1090 (9th Cir.2002). Thus, under 8 C.F.R. § 1003.1(d)(2)(i)(E) (formerly 8 C.F.R. § 3.1(d)(2)(i)(D)), we agree that summary dismissal of Petitioners’ appeal was appropriate. See Singh, 361 F.3d at 1157.

PETITION FOR REVIEW DISMISSED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.