                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 November 4, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-60856
                          Summary Calendar


MALABA G HULUMBA, also known as Malaba G Mulumba

                     Petitioner

     v.

JOHN ASHCROFT, US ATTORNEY GENERAL

                     Respondent

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A74 682 752
                        --------------------

Before KING, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.

PER CURIAM:*

     Malaba G. Hulumba has filed a petition for review of the

summary dismissal by the Board of Immigration Appeals (BIA) of

his appeal from the denial of political asylum, withholding of

removal, and relief under the Convention Against Torture.

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



     *
       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this opinion should not be published and is not precedent except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.
                           No. 03-60856
                                -2-

explain his or her failure to do so, within the time set for

filing.”   8 C.F.R. § 1003.1(d)(2)(i)(E) (2004).

     Hulumba, represented by counsel, indicated on the notice of

appeal form (Form EOIR-26) that he would file a brief, then

failed to do so.   Further, Hulumba failed to avail himself of

the provision for lenity in 8 C.F.R. § 1003.1(d)(2)(i)(E) when he

did not explain his failure to file a brief or statement within

the time in which he had to file the brief or separate statement.

Thus, the BIA was within its “statutorily designated discretion”

to dismiss Hulumba’s appeal summarily.     See Rioja v. Ashcroft,

317 F.3d 514, 515-16 (5th Cir. 2003).     Accordingly, this court

need not reach Hulumba’s argument that his notice of appeal

otherwise apprised the BIA of the bases of his appeal.     See id.

at 516.

     Hulumba’s argument that his due process rights were violated

because he was entitled to “a fully explained decision” is

unavailing given that the BIA had statutory authority to dismiss

Hulumba’s appeal summarily for failure to file a brief or a

separate written statement.   See 8 C.F.R. § 1003.1(d)(2)(i)(E);

Rioja, 317 F.3d at 516.   Hulumba does not argue, and the record

does not indicate, that Hulumba lacked notice of the BIA’s

statutory authority to dismiss his appeal summarily.

      Hulumba’s petition for review is DENIED.
