Quinteros-Mendoza v. Holder

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FERNANDO QUINTEROS-MENDOZA, 

Petitioner,

v.

 No. 07-1544

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order

of the Board of Immigration Appeals.

Argued: December 5, 2008

Decided: February 11, 2009

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Petition for review denied by published opinion. Judge Motz

wrote the opinion, in which Judge Michael and Judge King

joined.

COUNSEL

ARGUED: Jason Alexander Dzubow, MENSAH, SHOE-

MAKER & DZUBOW, P.L.L.C., Washington, D.C., for Peti-

tioner. Eric Warren Marsteller, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney

2 QUINTEROS-MENDOZA v. HOLDER

General, M. Jocelyn Lopez Wright, Assistant Director, Mar-

garet Perry, Senior Litigation Counsel, UNITED STATES

DEPARTMENT OF JUSTICE, Office of Immigration Litiga-

tion, Washington, D.C., for Respondent.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

An Immigration Judge (IJ) denied Fernando Quinteros-

Mendoza asylum and withholding of removal. In a brief writ-

ten opinion, a single member of the Board of Immigration

Appeals (BIA) affirmed. Quinteros-Mendoza petitions for

review, asserting that the BIA erred in refusing to refer his

case to a three-member panel and that the single member who

did review his case erred in denying him relief. Although we

disagree with the Government’s contention that we lack juris-

diction to review the BIA’s refusal to refer a case to a three-

member panel, the BIA’s subsequent precedential decision

has eliminated the need for such three-judge review in the

case at hand. Moreover, because the BIA’s decision in this

case accords with its subsequent precedential decision, we

deny the petition for review.

I.

In April 2004, a gang known as The Maras began targeting

Quinteros-Mendoza in El Salvador. The first incident

occurred when three gang members attacked and beat him

after he took his girlfriend home. This harassment continued

on a regular basis, between three to five times per week. In

each instance, the gang members sought to extort money from

Quinteros-Mendoza.

After a number of attacks at various locations, the gang

members confronted Quinteros-Mendoza three times at a Sev-

QUINTEROS-MENDOZA v. HOLDER 3

enth Day Adventist Church in El Salvador, which Quinteros-

Mendoza had attended regularly since 1987. The gang

demanded money but also threatened to hurt Quinteros-

Mendoza if he continued to attend church. Sometime after the

third attack at his church, Quinteros-Mendoza capitulated and

ceased attending services. The violence and threats did not

stop. Although Quinteros-Mendoza called the police on many

occasions throughout this ordeal, their response was uni-

formly ineffectual.

In the face of this harassment, Quinteros-Mendoza fled to

the United States and in September 2004 entered without

authorization. When the government placed him in removal

proceedings, he filed for asylum, alleging that the gang mem-

bers had persecuted him based on his religion and political

opinion and that they would kill him if he returned to El Sal-

vador. Family members confirmed continuing threats against

his life.

The IJ found Quinteros-Mendoza’s testimony credible and

sufficiently corroborated. She further found that the level of

harm he feared constituted persecution and that his fear of

persecution upon return to El Salvador was well founded.

Applying the recently enacted REAL ID Act of 2005, Pub. L.

No. 109-13, § 101(a)(3), 119 Stat. 302, 303 (codified at 8

U.S.C. § 1158(b)(1)(B)(i) (2006)), the IJ nonetheless denied

asylum and withholding of removal because she found that

neither religion nor political opinion was a "central reason"

for the persecution.

In a brief opinion pursuant to BIA "streamlining" regula-

tions, see 8 C.F.R. § 1003.1(e)(5)–(6) (2008), a single mem-

ber of the BIA affirmed, concurring that Quinteros-

Mendoza’s religion was not "at least one central reason" for

the persecution. In this appeal, Quinteros-Mendoza argues

that the BIA erred (1) in failing to refer his case to a three-

member panel, and (2) in its interpretation and application of

the REAL ID Act’s "one central reason" standard.

4 QUINTEROS-MENDOZA v. HOLDER

II.

At the time the BIA reviewed Quinteros-Mendoza’s claim,

a three-member panel had not interpreted the "one central rea-

son" provision of the REAL ID Act of 2005. Quinteros-

Mendoza argues that the BIA violated its own regulations by

refusing to refer his case to such a panel in order "to establish

a precedent" construing that part of the REAL ID Act. 8

C.F.R. § 1003.1(e)(6)(ii) (2008). The Government sharply

disagrees, contending that Congress has foreclosed judicial

review of BIA "streamlining" decisions. Alternatively, the

Government argues that the BIA’s subsequent interpretation

of this provision moots the need for three-member review in

this case.

A.

We first address whether Congress has foreclosed our

review of BIA streamlining decisions. Although the BIA has

broad discretion to enact appropriate administrative regula-

tions, like the streamlining provisions at issue here, see

Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278–83 (4th

Cir. 2004), that broad discretion does not shield the BIA’s

implementation and execution of those regulations from judi-

cial review.1 Indeed, we recently exercised precisely this juris-

1

Thus, we emphasize that we do not question the agency’s power to for-

mulate these streamlining regulations, a question we addressed in Blanco

de Belbruno, and an area in which the Supreme Court has severely cir-

cumscribed our review. See Vt. Yankee Nuclear Power Corp. v. Natural

Res. Def. Council, Inc., 435 U.S. 519, 523–25 (1978). Instead, the ques-

tion before us is whether we can review the agency’s adherence to its own

validly enacted procedures. See, e.g., Morton v. Ruiz, 415 U.S. 199,

235–36 (1974) ("Where the rights of individuals are affected, it is incum-

bent upon agencies to follow their own procedures."); United States ex rel.

Accardi v. Shaughnessy, 347 U.S. 260, 266–68 (1954); United States v.

Morgan, 193 F.3d 252, 266–67 (4th Cir. 1999); 32 Charles H. Koch, Jr.,

Federal Practice and Procedure § 8165, at 182–83 (2006) (distinguishing

between agency formulation of procedural rules, which generally is com-

mitted to agency discretion, and agency compliance with those rules,

about which courts are "very careful").

QUINTEROS-MENDOZA v. HOLDER 5

diction. See Li Fang Lin v. Mukasey, 517 F.3d 685, 693–94

(4th Cir. 2008). There we noted that the "BIA [had] yet to

provide a published, precedential opinion" (i.e., one issued by

a three-member panel) addressing a particular legal question.

Id. at 693. To avoid "violating fundamental separation-of-

powers principles," in Li Fang Lin, we remanded the case to

the BIA with instructions to have a three-person panel resolve

that question. Id. at 694. Of course, if we lacked jurisdiction

to review the BIA’s initial decision to assign the case to a

one-member panel, we would be powerless to order such a

remand.

In Li Fang Lin we did not, however, explain our rationale

for finding jurisdiction. We think it is worthwhile to do so

now, in light of the division in the circuits on this question.

Compare Purveegiin v. Gonzales, 448 F.3d 684, 691–92 (3d

Cir. 2006) (finding jurisdiction to review BIA streamlining

decisions), Chong Shin Chen v. Ashcroft, 378 F.3d 1081,

1087–88 (9th Cir. 2004) (same), and Batalova v. Ashcroft,

355 F.3d 1246, 1252–53 (10th Cir. 2004) (same), with

Guyadin v. Gonzales, 449 F.3d 465, 469–70 (2d Cir. 2006)

(finding no jurisdiction over such decisions), and Bropleh v.

Gonzales, 428 F.3d 772, 779 (8th Cir. 2005) (same).

Our disposition in Li Fang Lin reflects the strong presump-

tion favoring judicial review of agency action. Bowen v. Mich.

Acad. of Family Physicians, 476 U.S. 667, 670 (1986). Con-

gress may overcome this strong presumption in two limited

ways: through an express jurisdiction-stripping provision, see

5 U.S.C. § 701(a)(1) (2006), or by committing agency action

"to agency discretion by law," see id. § 701(a)(2). No express

jurisdiction-stripping provision applies here; the Government

contends, however, that Congress has implicitly stripped us of

jurisdiction by committing streamlining decisions to agency

discretion.

The Supreme Court has drawn the "committed to agency

discretion" exception extremely narrowly, applying it only "in

6 QUINTEROS-MENDOZA v. HOLDER

those rare circumstances where the relevant statute ‘is drawn

so that a court would have no meaningful standard against

which to judge the agency’s exercise of discretion.’" Lincoln

v. Vigil, 508 U.S. 182, 191 (1993) (quoting Heckler v.

Chaney, 470 U.S. 821, 830 (1985)). Here, no statute evinces

clear and convincing congressional intent to commit BIA

streamlining decisions to that agency’s discretion by law. See

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64 (1993)

(requiring a statute to evince clear and convincing evidence

that Congress meant to foreclose review). Instead, Congress

merely has given the agency the power to enact appropriate

administrative regulations, mandating that the Secretary of

Homeland Security "shall establish such regulations; . . . issue

such instructions; and perform such other acts as he deems

necessary for carrying out his authority under the provisions

of [the immigration laws]." 8 U.S.C. § 1103(a)(3) (2006).

Moreover, contrary to the Government’s contention, the

agency’s own regulations do not provide the BIA with the

claimed unreviewable discretion. The regulations do state that

the BIA "may only" refer a case to a three-member panel if

one of six factors is present. 8 C.F.R. § 1003.1(e)(6) (2008).2

But the regulations also prescribe that "[u]nless a case meets

the standards for assignment to a three-member panel under

[§ 1003.1(e)(6)], all cases shall be assigned to a single Board

member for disposition." Id. § 1003.1(e) (emphasis added).

This certainly suggests that if a case does meet the standard

for adjudication by a three-member panel, a single member

shall not decide it. See Purveegiin, 448 F.3d at 689. The regu-

lations further direct a Board member to decide a case

referred to him "unless the Board member designates the case

for decision by a three-member panel" because it squarely

2

Of course, this use of "may" does not in and of itself establish unlim-

ited, and so unreviewable, agency discretion. See Zadvydas v. Davis, 533

U.S. 678, 697 (2001) ("[W]hile ‘may’ suggests discretion, it does not nec-

essarily suggest unlimited discretion.").

QUINTEROS-MENDOZA v. HOLDER 7

implicates one of the six § 1003.1(e)(6) factors. 8 C.F.R.

§ 1003.1(e)(5) (emphasis added).3

Moreover, the six factors found in § 1003.1(e)(6) are not

cast in such discretionary terms as to preclude meaningful

review of them. See Batalova, 355 F.3d at 1253 (noting that

the six factors "are the kinds of issues we routinely consider

in reviewing cases, and they have nothing to do with the

BIA’s caseload or other internal circumstances"). For

instance, under the abuse of discretion standard, we regularly

review the presence or absence of "clearly erroneous factual

determination[s]," 8 C.F.R. § 1003.1(e)(6)(v) (2008). See,

e.g., Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261

(4th Cir. 1999). Likewise, it lies within our purview to review

whether an immigration judge’s decision was "in conformity

with the law or with applicable precedents." 8 C.F.R.

§ 1003.1(e)(6)(iii) (2008). And, as we found in Li Fang Lin,

517 F.3d at 693–94, we can readily review whether there

exists a "need to establish a precedent construing the meaning

of laws, regulations, or procedures." 8 C.F.R.

§ 1003.1(e)(6)(ii) (2008).4

3

The Government notes that the Department of Justice has proposed a

new regulation that clarifies the agency’s position that streamlining deci-

sions are not subject to judicial review. See Board of Immigration

Appeals: Affirmance Without Opinion, Referral for Panel Review, and

Publication of Decisions as Precedents, 73 Fed. Reg. 34,654, 34,663 (pro-

posed June 18, 2008) (to be codified at 8 C.F.R. § 1003.1(e)(9)) (mandat-

ing that the provisions in § 1003.1(e)(5)–(6) "do not . . . create any

substantive or procedural rights enforceable before any immigration judge

or the Board, or any court"). Although the comment period for this pro-

posed rule has closed, id. at 34,654, it has not become a final rule. Thus,

it has no bearing on our inquiry here. Moreover, that the agency saw the

need to propose this regulation only reinforces our conclusion that the

present statutory and regulatory scheme does not evince a clear and con-

vincing intent to foreclose judicial review.

4

The Second Circuit has found review of these types of streamlining

decisions precluded because Courts of Appeals allegedly "lack the exper-

tise necessary" to measure the BIA’s streamlining decision against these

six factors. Kambolli v. Gonzales, 449 F.3d 454, 464 (2d Cir. 2006). This

8 QUINTEROS-MENDOZA v. HOLDER

In most cases, we review the merits of the BIA’s final

order, with no need to address the process by which the BIA

issued that order. See Batalova, 355 F.3d at 1253 n.8. The

BIA intended the streamlining procedures to enhance admin-

istrative efficiency without prejudicing applicants with meri-

torious appeals. Nonetheless, as the agency itself recognizes,

three-member panel review can provide important procedural

benefits. Board of Immigration Appeals: Procedural Reforms

To Improve Case Management, 67 Fed. Reg. 54,878,

54,887–88 (Aug. 26, 2002); see also Purveegiin, 448 F.3d at

690–91; Smriko v. Ashcroft, 387 F.3d 279, 296–97 (3d Cir.

2004). Thus, in certain circumstances, our review of the

BIA’s final order must include a review of the procedures by

which the BIA obtained that result.

Were we to find Congress’s simple grant of regulatory

authority, see 8 U.S.C. § 1103(a)(3) (2006), sufficient to pro-

vide the BIA boundless and unreviewable discretion, we

would effectively shield any BIA administrative regulation

from our review based solely on that agency’s say so. This

argument proves too much. We thus hold that we do have

jurisdiction to decide whether the BIA’s decision to stream-

line a case under 8 C.F.R. § 1003.1(e)(5)–(6) (2008) was "ar-

bitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law." 5 U.S.C. § 706(2)(A) (2006).

B.

Although we find that a BIA streamlining decision is sub-

ject to judicial review, that holding does not yield the result

Quinteros-Mendoza seeks. For, as the Government alterna-

tively contends, the BIA’s subsequent action moots the need

may be true at a very high level of generality, but we accommodate

agency expertise through judicial restraint and appropriate deference to

agency decisions, not by entirely foreclosing judicial review of those deci-

sions.

QUINTEROS-MENDOZA v. HOLDER 9

to remand Quinteros-Mendoza’s case to a three-member

panel. In In re J-B-N-, 24 I. & N. Dec. 208 (2007), the BIA

did refer to a three-person panel the precise issue raised by

Quinteros-Mendoza—the proper interpretation of "one central

reason" in 8 U.S.C. § 1158(b)(1)(B)(i) (2006). Because that

three-person panel "establish[ed] a precedent" on this ques-

tion, there is no longer a need for referral to a three-member

panel in the case at hand. We therefore agree with the Gov-

ernment’s contention and find this issue to be moot as applied

to Quinteros-Mendoza.

III.

We turn next to the merits of the BIA’s final order in this

case. In order to gain the relief Quinteros-Mendoza requests

here, he must show that his persecution was "on account of

race, religion, nationality, membership in a particular social

group, or political opinion." 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1)(A) (2006). Quinteros-Mendoza does not contend

that his religion or political opinion constituted the sole

motives for his persecutors’ actions. To the contrary, he

admits that the gang members’ initial motivation for attacking

him was either financial or personal. This thus constitutes a

"mixed motive" case, in which a statutorily protected ground

comprises only part of the persecution.

In response to differing standards applied to such mixed

motive cases, Congress included in the REAL ID Act of 2005

a provision that required a protected ground in

§ 1101(a)(42)(A) to be "at least one central reason for perse-

cuting the applicant." Id. § 1158(b)(1)(B)(i) (emphasis

added). In In re J-B-N-, the BIA interpreted this provision to

mean that "the protected ground cannot play a minor role in

the alien’s past mistreatment or fears of future mistreatment.

That is, it cannot be incidental, tangential, superficial, or sub-

ordinate to another reason for harm. Rather, it must be a cen-

tral reason for persecuting the respondent." 24 I. & N. Dec.

at 214. The Board also emphasized that the REAL ID Act did

10 QUINTEROS-MENDOZA v. HOLDER

not "radically alter[ ]" the standard in mixed motive cases like

Quinteros-Mendoza’s. Id. Thus, the BIA did not hold that the

REAL ID Act requires a protected ground to be the central

reason or even a dominant central reason for persecution, only

that it cannot be an "incidental, tangential, superficial, or sub-

ordinate" reason. Id.

As both the IJ and the BIA noted, the record in this case

indicates that money and personal animosity, and not religion

or political opinion, motivated the initial assaults on

Quinteros-Mendoza. Although attacks did occur at Quinteros-

Mendoza’s church, the record supports the BIA’s findings

that the gang members attacked him in numerous other

locations—including on the bus, at his home, and in a neigh-

boring town—and that the gang members demanded money

throughout these encounters. The BIA also relied on ample

evidence in concluding that the threats and attacks continued

even after Quinteros-Mendoza ceased attending church and

that the gang members targeted no other members of that

church. Thus, Quinteros-Mendoza has provided no evidence

that his religious or political beliefs were more than incidental

or tangential to any part of the persecution he suffered.

In sum, the record lends adequate support for the findings

of the IJ and the BIA that neither religion nor political opinion

initiated, escalated, perpetuated, or otherwise constituted a

central reason for the persecution against Quinteros-Mendoza.

We therefore deny the petition for review.

PETITION FOR REVIEW DENIED