                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2003

Slavomir Prokic v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket 02-2065




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Recommended Citation
"Slavomir Prokic v. Atty Gen USA" (2003). 2003 Decisions. Paper 848.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/848


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                                                            NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT




                            No: 02-2065


                       SLAVOMIR PROKIC,
                                 Appellant
                             v.

                   John Ashcroft, Attorney General
                    of the United States of America


On Petition for Review of an Order of the Board of Immigration Appeals
                             A70 704 189


            Submitted Under Third Circuit L.A.R. 34.1(a)
                        January 14, 2003

     Before: ROTH, FUENTES, and ALDISERT, Circuit Judges


                  (Opinion Filed: January 29, 2003 )




                    OPINION OF THE COURT
FUENTES, Circuit Judge:

        Slavomir Prokic ("Prokic") petitions this Court to review the order of the Board of

Immigration Appeals ("BIA") to dismiss his appeal for failing to file a brief after he

indicated that he would do so. Because Prokic failed to properly raise this issue in his brief

and because 8 C.F.R. § 3.1(d)(2)(i)(D) (2001) provides for summary dismissal if a brief or

statement is not filed after a party has indicated that he or she will do so, we affirm the

decision of the BIA.

                                                      I.

        Prokic is a 63-year-old native and citizen of Serbia, in the Republic of Yugoslavia,

who was admitted to the United States on December 9, 1992. He entered on a six month

visitor visa and never left. Instead, Prokic filed an application for asylum, which was

eventually referred to an immigration judge. On or about September 4, 1997, the

Immigration and Naturalization Service ("INS") placed Prokic in removal proceedings for

having remained in the United States longer than permitted. On April 14, 1998, an

immigration judge found Prokic removable as charged and ruled that he was ineligible for

asylum. However, the immigration judge granted Prokic voluntary departure.

        Prokic filed a notice of appeal with the BIA and indicated that he would file a brief.

The BIA set a briefing schedule on September 4, 1998, which required Prokic's brief to be

filed by October 5, 1998. On September 11, 1998, the INS filed a notice that it concurred

with the decision of the immigration judge and would not be filing a formal brief. Prokic

did not respond to the notice and failed to file a brief. On March 22, 2002, the BIA

                                                      2
summarily dismissed the appeal because Prokic had failed to file a brief and failed to

explain his failure to do so.

                                                       II.

        We have jurisdiction to review the BIA's final order of removal pursuant to 8

U.S.C. § 1252(a)(1). We review the BIA's decision unless the BIA defers to the decision

of the immigration judge. See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).

                                                       III.

        Prokic argues that he produced sufficient evidence to establish a well-founded fear

of persecution in Serbia. However, as we have stated, the BIA dismissed Prokic's appeal

for failure to file a brief. Specifically, the BIA ruled:

                 The appeal is dismissed. The appellant checked Box 6 on the Notice of
                 Appeal (Form EOIR-26) indicating that a separate written brief or statement
                 would be filed in addition to the reasons for appeal accompanying the Notice
                 of Appeal. Block 6 is immediately followed by a clear warning that the
                 appeal may be subject to summary dismissal if the appellant indicates that
                 such a brief or statement will be filed and, 'within the time set for filing, you
                 fail to file the brief or statement and do not reasonably explain such failure.'
                 The appellant was granted the opportunity to submit a brief or statement in
                 support of the appeal. However, the record indicates that appellant did '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. § 3.1(d)(2)(i)(D).

        In order for Prokic to prevail on this appeal, he must first establish that the BIA

erred in dismissing his appeal for failure to submit a brief. "An issue is waived unless a

party raises it in its opening brief." See Laborers' Int'l Union of N. Am. v. Foster Wheeler

Corp., 26 F.3d 375, 398 (3d Cir.1994). Because Prokic neglected to put forth any

argument challenging the BIA's summary dismissal of his appeal, he has waived his

                                                        3
challenge to the BIA's decision.

        However, even if Prokic were to have raised this issue in his brief, we would affirm

the decision of the BIA. "An appellant's failure to file a brief is a serious procedural

default, and, at least when the appellant is represented by counsel, as in the present case, or

declines an offer of counsel, dismissal is an appropriate sanction." Stroe v. INS, 256 F.3d

498, 499 (7th Cir. 2001). Notice of Appeal, Form EOIR-26, contains a clear warning that

an appeal may be subject to summary dismissal if the appellant indicates that a brief will be

filed and then fails to file a brief within the allotted time and without explanation.

Dismissal under such circumstances is appropriate pursuant to 8 C.F.R. § 3.1(d)(2)(i)(D)

(2001). Prokic fails to set forth any explanation for why he failed to comply with the clear

directive contained in the Notice of Appeal and the Code of Federal Regulations. As a

result, based on the BIA's straightforward application of the relevant code provision, we

find no reason to grant the petition to review the order.




                                                      IV.

        Accordingly, for the reasons stated above, we affirm the Order of the Board of


Immigration Appeals.



                                                       4
_____________________________
TO THE CLERK OF THE COURT:


Kindly file the foregoing Opinion.




                                         /s/ Julio M. Fuentes
                                         Circuit Judge




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