Cheluca

*801 MEMORANDUM *

Arturo Vargas Cheluca (“Cheluca”), a native and citizen of Mexico, appeals the Board of Immigration Appeals’ (“BIA”) summary dismissal of his appeal from the decision of the immigration judge denying him cancellation of removal under 8 U.S.C. § 1229b, INA § 240A(b)(l)(D). We affirm the BIA’s dismissal and deny the petition.

The BIA may summarily dismiss an appeal if “[t]he party ... indicates on Form EOIR-26 ... 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.” 8 C.F.R. § 1003.1 (d)(2)(i)(E). Cheluca indicated he would file a timely written brief, but failed to do so.

Cheluca waived the issue of the BIA’s summary dismissal by failing to raise it in his opening brief. Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.1988). Nonetheless we may exercise our discretion to review the issue because the government briefed it, and therefore suffers no prejudice from Cheluca’s failure to raise the issue properly. See Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir.2003).

So long as “sufficient notice is conveyed to the BIA” by the…