Hussain v. Gonzales

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AFZAL HUSSAIN, 

Petitioner,

v.

 No. 05-2350

ALBERTO R. GONZALES, Attorney

General,

Respondent.



On Petition for Review of an Order

of the Board of Immigration Appeals.

(A76-595-607)

Argued: September 19, 2006

Decided: February 16, 2007

Before NIEMEYER, Circuit Judge,

HAMILTON, Senior Circuit Judge, and

Henry F. FLOYD, United States District Judge

for the District of South Carolina, sitting by designation.

Petition denied by published opinion. Judge Floyd wrote the majority

opinion, in which Judge Niemeyer concurred. Senior Judge Hamilton

wrote a dissenting opinion.

COUNSEL

ARGUED: Jennifer Sheethel Varughese, Herndon, Virginia, for Peti-

tioner. Ernesto Horacio Molina, II, UNITED STATES DEPART-

MENT OF JUSTICE, Washington, D.C., for Respondent. ON

2 HUSSAIN v. GONZALES

BRIEF: Joe W. Nesari, LAW OFFICES OF J. W. NESARI, L.L.C.,

Herndon, Virginia, for Petitioner. Peter D. Keisler, Assistant Attorney

General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director,

Office of Immigration Litigation, Song E. Park, Office of Immigra-

tion Litigation, Civil Division, UNITED STATES DEPARTMENT

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

OPINION

FLOYD, District Judge:

Afzal Hussain, a native and citizen of Pakistan, petitions this Court

for review of an order of the Board of Immigration Appeals (Board)

denying his appeal from the immigration judge’s order which denied

his motion to reopen and disposed of his motion to remand. Hussain’s

only challenge is to the denial of his motion to remand. For the rea-

sons set forth below, we deny the petition for review.

I.

On December 6, 2000, a notice to appear was issued to Hussain,

alleging that he entered the United States at an unknown location on

or about April 1992. (J.A. at 5.) The notice further averred that Hus-

sain was not admitted or paroled after inspection, nor did he have any

valid reentry documents. Id.

On October 3, 2002, the immigration judge denied Hussain’s

request for relief from removal in absentia. (J.A. at 23.) On January

26, 2005, more than two years after the immigration judge’s order,

Hussain filed a motion to reopen with the immigration judge. (J.A. at

31-58.) Hussain claimed that 1) the in absentia removal order should

be rescinded because his failure to appear at the hearing was due to

exceptional circumstances; 2) the denial of relief under the Violence

Against Women Act, in which he claimed that he was abused by his

first wife, was in error; and 3) he was now eligible for adjustment of

status to that of a lawful permanent resident on the basis of a labor

certification filed on his behalf by his employer on April 24, 2001.

(J.A. at 31-58.)

HUSSAIN v. GONZALES 3

The immigration judge denied the motion to reopen for the reasons

stated in the Department of Homeland Security’s (DHS) response.

(J.A. at 178.) The DHS had argued that Hussain’s motion was

untimely and that he did not establish exceptional circumstances.

(J.A. at 150-51.)

Hussain appealed the immigration judge’s decision to the Board.

(J.A. at 174-76.) While the appeal was pending, Hussain filed a

motion to remand his case to the immigration judge. (J.A. at 186.)

According to Hussain, his new wife had filed an Immigrant Petition

on his behalf. (J.A. at 187.) Hussain argued that his circumstances had

materially changed and that he was entitled to a rehearing before the

immigration judge. Id. Hussain attached several documents to his

motion to remand, claiming that he was eligible for immediate and

comprehensive relief. (J.A. at 186-238.) The Government neglected

to file a response to the motion to remand.

The Board found that Hussain’s motion to reopen the immigration

judge’s order of removal entered in absentia was untimely. (J.A. at

259-60.) The Board further noted that Hussain "is also seeking to

reopen proceedings to apply for adjustment of status. An alien is not

required to rescind his or her deportation order under [the applicable]

Act if he or she is pursuing an application for new relief, and provided

there is no evidence that the respondent received the required warn-

ings" for failing to appear. Id. (citing Matter of M-S, 22 I. & N. Dec.

349 (BIA 1998)). The Board found that motion to be untimely, as

well. Id. at 260. This petition followed.

II.

Hussain limits his petition for review to challenging the disposition

of the motion to remand. We review the denial of a motion to remand

for abuse of discretion. Obioha v. Gonzales, 431 F.3d 400, 408 (4th

Cir. 2005). The Board abuses its discretion when it "fails to offer a

reasoned explanation for its decision, distorts or disregards important

aspects of the alien’s claim." Malhi v. INS, 336 F.3d 989, 993 (9th

Cir. 2003) (internal quotation marks and citation omitted).

A.

Hussain argues that the Board erred by failing to mention or

address his motion to remand in the order denying relief. The Govern-

4 HUSSAIN v. GONZALES

ment admits that the Board failed to refer specifically to the motion

to remand. The Government contends, however, that the Board refer-

enced the motion to remand when it discussed Hussain’s motion to

reopen to apply for adjustment of status.

Because Hussain’s motion was filed while the appeal was pending,

it is properly classified as a motion to remand. See 8 C.F.R.

§ 1003.2(c)(4)(2005). Thus, Hussain is correct in his contention that

the Board failed to dispose specifically of the motion to remand.

The record supports the finding that the Board’s reference to the

motion to reopen was a reference to the motion Hussain filed before

the immigration judge. As noted above, in that motion, Hussain

sought reopening as a result of exceptional circumstances causing him

to be absent from his hearing, an adjustment of status because of a

labor certification filed by his attorney and relief under the Violence

Against Women Act. (J.A. at 247-55.)

The Board’s order initially referenced Hussain’s argument that

exceptional circumstances were present when he missed his immigra-

tion hearing. (J.A. at 259.) As observed above, however, the Board

found the motion for relief as to that request to be untimely. Id. It con-

tinued by stating that Hussain "is also seeking to reopen proceedings

to apply for adjustment of status."1 Id. The Board also noted that an

alien is not obligated under some circumstances to have a deportation

order rescinded if the alien is pursuing an application for new relief.

(J.A. at 260 (citing Matter of M-S, 22 I. & N. Dec. 349).)

In Matter of M-S, the petitioner sought to have the immigration

judge rescind the order of removal so as to apply for adjustment of

status. Id. The Board held that in some circumstances the order does

not have to be rescinded. Id. at 356.

1

The Government claims that the Board’s use of the word "also"

implies it was moving from the appeal to the motion to remand. It is

equally possible, however, that the use of the term "also" meant that the

Board was moving from considering reopening the in absentia order to

reopening to consider the labor certification.

HUSSAIN v. GONZALES 5

In the instant case, after noting that an order does not have to be

rescinded in certain cases, the Board continued by finding that,

despite the fact that rescission is sometimes unnecessary, Hussain’s

motion to reopen to seek new relief was untimely.2 The Board’s dis-

cussion of whether rescission is essential relates to Hussain’s motion

to reopen, in which he did seek rescission, rather than the motion to

remand, in which he did not specifically seek rescission. Therefore,

based on the case citation in the order, the fact that the Board referred

to the motion as one to reopen, instead of referring to a motion for

remand, the discussion of rescission, and the fact that the motion to

reopen filed before the immigration judge sought an adjustment of

status, we are convinced that the Board was not referring to the

motion to remand when it disposed of the "motion to reopen."

In addition, the Government did not oppose Hussain’s motion to

remand. Pursuant to 8 C.F.R. § 1003.2(g)(3), if the Government does

not file a response to a motion, it is deemed unopposed. An unop-

posed motion to remand for adjustment of status may be remanded.

In re Erales, A75-512-988, 2005 WL 649163 (BIA Jan 11, 2005)

(unpublished); In re Marquez-Ledezma, No. A78-153-433, 2004 WL

2418722 (BIA Oct. 8, 2004) (unpublished). The Board’s failure to

make reference to the Government’s lack of a response lends support

to Hussain’s claim that the Board neglected to consider the motion.

Moreover, the finding that the motion was untimely apparently

refers to Hussain’s motion to reopen filed before the immigration

judge. That motion was filed more than two years after the immigra-

tion judge’s decision. A motion to reopen must be filed no later than

ninety days after the date of the administrative decision at issue. 8

C.F.R. § 1003.2(c)(2). The parties have not submitted, and we have

not found, either a comparable regulation for motions to remand or

an instance in which a motion to remand, filed while an appeal was

2

The Government contends that the reference to "new relief" implies

that the Board was referring to the adjustment of status based upon his

marriage. However, Hussain also sought "new relief" before the immi-

gration judge when he sought an adjustment of status as a result of a

labor certification. There is nothing in the record to support the Govern-

ment’s claim as to what was intended by the Board’s reference to new

relief.

6 HUSSAIN v. GONZALES

pending, was denied because it was untimely. Accordingly, we find

that the Board’s order neglected to properly dispose of the motion to

remand.

B.

The Government contends that if the Board failed to consider Hus-

sain’s motion to remand, this Court should, nevertheless, deny the

petition for review. According to the Government, Hussain is statu-

torily prohibited from receiving adjustment of status because he

entered the country illegally. We agree.

The Attorney General, in his discretion, may adjust the status of an

alien to that of a lawful permanent resident if the alien "was inspected

and admitted or paroled into the United States . . ." 8 U.S.C.A.

§ 1255(a) (2000); Jean v. Gonzales, 435 F.3d 475, 477 (4th Cir.

2006). Generally, an alien present in the United States without being

admitted or paroled is inadmissible. 8 U.S.C.A. § 1182(a)(6) (2000).

The record supports the finding that Hussain was not inspected or

paroled into the United States. (J.A. at 5.) In fact, in his documenta-

tion to adjust his status, Hussain admitted that he entered the United

States without inspection. (J.A. at 122, 125.)

A motion to reopen proceedings "for the purpose of submitting an

application for relief must be accompanied by the appropriate applica-

tion for relief and all supporting documentation." 8 C.F.R.

§ 1003.2(c)(1). To establish a prima facie case for adjustment of sta-

tus, Hussain must demonstrate the following: (1) he has applied for

an adjustment of status; (2) he is eligible to receive an immigrant visa

and is admissible to the United States; and (3) an immigrant visa was

immediately available to him at the time his application was filed. 8

U.S.C. § 1255(a) (2000); Onyeme v. INS, 146 F.3d 227, 231 (4th Cir.

1998). Hussain has failed to make a prima facie case in his motion

to remand because he failed to establish that he was admissible. See

8 U.S.C. § 1182(a)(6). Accordingly, we hold that Hussain is ineligible

for the relief that he seeks.

In matters such as this, the Court "is not generally empowered to

conduct a de novo inquiry into the matter being reviewed and to reach

HUSSAIN v. GONZALES 7

its own conclusions based on such an inquiry. Rather, the proper

course, except in rare circumstances, is to remand to the agency for

additional investigation or explanation." INS v. Ventura, 537 U.S. 12,

16-18 (2002) (holding that the federal appellate court should have

remanded the case to the Board to make a factual determination as to

whether political conditions had improved in Guatemala to the extent

that political persecution was no longer likely) (internal citations and

quotation marks omitted) (emphasis added). Moreover, in Gonzales v.

Thomas, ___U.S. __, 126 S. Ct. 1613 (2006), the Supreme Court reit-

erated the holding in Ventura, stating that no special circumstances in

Thomas permitted the appellate court to consider a factual issue in the

first instance.

The matter requires determining the facts and deciding

whether the facts as found fall within a statutory term. And

as we said in Ventura:

The agency can bring its expertise to bear upon the matter;

it can evaluate the evidence; it can make an initial determi-

nation; and, in doing so, it can, through informed discussion

and analysis, help a court later determine whether its deci-

sion exceeds the leeway that the law provides.

We can find no special circumstance here that might have

justified the Ninth Circuit’s determination of the matter in

the first instance. Thus, as in Ventura, the Court of Appeals

should have applied the ordinary remand rule.

Id. at 1615 (internal citations and quotation marks omitted) (emphasis

added).

Thus, both Ventura and Thomas concerned, in part, the appellate

court’s authority to review in the first instance factual issues not con-

sidered by the Board. The Supreme Court did not speak to whether

the appellate courts have authority to review in the first instance statu-

tory issues, although it did state the appellate court’s authority was

limited to rare circumstances.3

3

This Court has also noted that a remand is necessary for the Board to

make an initial determination on a factual issue if it is necessary to dis-

pose of the case. Li v. Gonzales, 405 F.3d 171, 178 (4th Cir. 2005).

8 HUSSAIN v. GONZALES

Moreover, as aptly observed by the Fifth Circuit, the language in

Ventura is precatory, not mandatory, and, thus, remand is not always

necessary. Zhao v. Gonzales, 404 F.3d 295, 311 (5th Cir. 2005)

("[A]lthough the language in Ventura is strong, it remains precatory.

The Court could have worded its holding categorically, and its failure

to do so must be a conscious decision.")

Simply stated, Hussain is ineligible for the relief he seeks because

he is unable to establish a prima facie case for the adjustment of his

status. This is a legal, not a factual, conclusion.4 As such, to remand

this matter to the Board for further consideration would serve no use-

ful purpose. Zhong v. U.S. Dep’t of Justice, 461 F.3d 101, 113 (2d

Cir. 2006) (stating that an agency error does not warrant remand when

it is clear from the record "that the same decision is inevitable on

remand, or, in short, whenever the reviewing panel is confident that

the agency would reach the same result upon a reconsideration

cleansed of errors") (citation omitted).

Because the result of a remand to the Board is a foregone conclu-

sion such that remand would amount to nothing more than a mere for-

mality, we find that the Ventura "rare circumstances" exception applies.5

That is, like the Zhao court, "[w]e cautiously conclude that this case

exhibits the narrow set of circumstances that requires no remand."

Zhao, 404 F.3d at 311 (footnote omitted).6

4

We review questions of law de novo. Dekoladenu v. Gonzales, 459

F.3d 500, 503 (4th Cir. 2006).

5

The dissent observes that we neglected to cite any case in which a

federal court of appeals has refused to remand a case to the Board under

similar circumstances subsequent to Ventura and Thomas, but then fails

to reference any case similar to the one at bar in which an appellate court

in fact remanded the case. We interpret the absence of similar cases as

further support for our opinion that this is the sort of case that triggers

the "rare circumstances" exception found in Ventura.

6

"A reviewing court can no doubt find some deficiency in the process

afforded, in the findings of fact, or the legal analysis in nearly any

agency adjudication. The courts . . . distinguish trivial or harmless error

from error requiring reversal or remand for further consideration." John

W. Guendelsberger, "Judicial Deference to Agency Decisions in

Removal Proceedings in Light of INS v. Ventura", 18 Geo. Immigr. L.J.

605, 638 (2004).

HUSSAIN v. GONZALES 9

Finally, there is a "strong public interest in bringing litigation to a

close as promptly as is consistent with" a fair opportunity to present

claims. INS v. Abudu, 485 U.S. 94, 105, 107 (1988). This is particu-

larly true in cases such as this, "where, as a general matter, every

delay works to the advantage of the deportable alien who wishes

merely to remain in the United States." INS v. Doherty, 502 U.S. 314,

323 (1992).

The significant likelihood is that any further decision by the Board

on this issue that is unfavorable to Hussain will be brought to this

Court, again. The determination that we have made today is inevitable

on remand. Hence, there is no legal reason for further delay.

III.

Accordingly, we deny Hussain’s petition for review.

PETITION DENIED

HAMILTON, Senior Circuit Judge, dissenting:

I have two main points of disagreement with the majority opinion.

First, I disagree with the majority opinion’s failure to remand this

case to the Board for issuance of a clarifying order. In my view, the

Board’s November 14, 2005 decision (the Board’s Final Decision) is

sufficiently ambiguous regarding whether the Board ruled upon Hus-

sain’s July 19, 2005 motion to remand (Hussain’s Motion to Remand)

that granting Hussain’s petition for review and remanding the case to

the Board with instructions to issue a clarifying order is required and

mandated. Second, assuming arguendo, that the Board did not rule on

Hussain’s Motion to Remand as the majority opinion concludes, I dis-

agree with the majority opinion’s decision to address such motion on

the merits in the first instance. In so addressing, the majority opinion

oversteps our review authority. Accordingly, I respectfully dissent.

I.

Before addressing in detail my points of disagreement with the

majority opinion, the Board deserves to be rebuked for issuing a final

10 HUSSAIN v. GONZALES

decision in which we, as the reviewing court, cannot readily discern

whether the Board even ruled upon a particular motion pending

before it. Immigration law, in and of itself, is complicated and confus-

ing enough that we should not be thrown into debate at the federal

appellate level regarding what action the Board actually took.

Turning to my first main point of disagreement with the majority

opinion, a careful reading of the record and the Board’s Final Deci-

sion shows that the majority opinion’s conclusion that the Board

failed to dispose of Hussain’s Motion to Remand is just a reasoned

guess or mere speculation. The truth is that we really do not know

whether the Board intended to dispose of Hussain’s Motion to

Remand in its Final Decision. Indeed, the government candidly con-

ceded at oral argument that the Board’s Final Decision is ambiguous

on the point.

I disagree with the majority opinion’s choice to discern from the

indiscernible whether the Board ruled upon Hussain’s Motion to

Remand. The prudent course, in this wholly ambiguous situation with

which we find ourselves confronted, is to remand the case to the

Board with instructions for the Board to issue a clarifying order. Spe-

cifically, I would instruct the Board to clarify whether it had ruled

upon Hussain’s Motion to Remand in its Final Decision in denying

the second-mentioned motion to reopen. If it had so ruled, I would

instruct the Board to clarify its reason or reasons for so ruling. If it

had not so ruled, I would instruct the Board to rule on the motion and

to express its reason or reasons for so ruling.

II.

My second main point of disagreement with the majority opinion

concerns the majority opinion’s decision to address the merits of Hus-

sain’s Motion to Remand. After the majority opinion concludes that

the Board did not rule on Hussain’s Motion to Remand, the majority

opinion takes the extraordinary step of addressing such motion on the

merits in the first instance. According to the majority opinion, remand

to the Board for a ruling in the first instance would serve no useful

purpose because, based upon the record, Hussain is unable to estab-

lish a prima facie case for adjustment of status. Notably, the majority

opinion takes pains to stress that its conclusion that Hussain is unable

HUSSAIN v. GONZALES 11

to establish a prima facie case for adjustment of status "is a legal, not

a factual, conclusion." Ante at 8.

Significantly, the majority opinion’s decision to address the merits

of Hussain’s Motion to Remand in the first instance violates the ordi-

nary remand rule as recently reiterated and applied in the Supreme

Court’s immigration decisions in INS v. Ventura, 537 U.S. 12 (2002)

(per curiam) and Gonzales v. Thomas, 126 S. Ct. 1613 (2006) (per

curiam).

In Ventura, the Ninth Circuit had addressed and rejected an argu-

ment by the government that political conditions in Guatemala had

improved to the point that political persecution was no longer likely

in Guatemala. Ventura, 537 U.S. at 13. The Board had not addressed

the issue. Id. The Supreme Court reversed the Ninth Circuit insofar

as it had denied remand to the Board. In so reversing, the Supreme

Court applied the ordinary remand rule, which rule provides that, in

reviewing the decision of an administrative agency, "[a] court of

appeals is not generally empowered to conduct a de novo inquiry into

the matter being reviewed and to reach its own conclusions based on

such an inquiry. Rather, the proper course, except in rare circum-

stances, is to remand to the agency for additional investigation or

explanation." Id. at 16 (internal citations and quotation marks omit-

ted). As rationale for the ordinary remand rule, the Court explained

that the administrative "agency can bring its expertise to bear upon

the matter; it can evaluate the evidence; it can make an initial determi-

nation; and, in doing so, it can, through informed discussion and anal-

ysis, help a court later to determine whether its decision exceeds the

leeway that the law provides." Id. at 17. The Court held that the Ninth

Circuit should have applied the ordinary remand rule, and therefore,

had erred by deciding the "changed circumstances" issue "without

giving the [Board] the opportunity to address the matter in the first

instance." Id. at 17.

In Thomas, the Supreme Court addressed whether the Ninth Circuit

had erred in considering, in the first instance, whether a given group

of persons fell within the statutory term "particular social group"

under § 101(a)(42)(A) of the Immigration and Nationality Act (INA),

8 U.S.C. § 1101(a)(42)(A), when the Board had not formally consid-

ered such question. Thomas, 126 S. Ct. at 1614. Applying the ordi-

12 HUSSAIN v. GONZALES

nary remand rule, the Court held that the Ninth Circuit had again

usurped the relevant administrative agency’s role by making basic

asylum eligibility decisions. Thomas, 126 S. Ct. at 1615. The Board

had yet to consider whether "Boss Ronnie’s family presents the kind

of ‘kinship ties’ that constitute a ‘particular social group,’" which

"matter," the Court stated, "requires determining the facts and decid-

ing whether the facts as found fall within a statutory term." Id. The

Supreme Court, therefore, vacated and remanded, holding that, absent

"special circumstances" not present in that case, the relevant adminis-

trative agency must first opine on issues about which it has expertise

prior to appellate review. Id.

In addressing Hussain’s Motion to Remand on the merits in the

first instance, the majority opinion attempts to rely upon a distinction

between factual and legal issues. The majority opinion states that in

discussing the ordinary remand rule in Ventura and Thomas, "[t]he

Supreme Court did not speak to whether the [federal] appellate courts

have authority to review in the first instance statutory issues . . . ."

Ante at 7. Therefore, the majority opinion reasons, Ventura and

Thomas present no bar to our court, in the first instance, denying Hus-

sain’s Motion to Remand based upon a legal ruling. Ante at 7-8.

In my view, the majority opinion misreads Ventura and Thomas.

The issues remanded in Ventura and Thomas both involved factual

and legal aspects. In Ventura, the "changed circumstances" issue cal-

led not only for the Board’s review of evidence in the record, but for

the Board’s application of the law to the facts, Ventura, 537 U.S. at

16-17. Such application of the law to the facts brings into play the

Board’s conferred interpretative expertise in the field of immigration

law, INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (holding that

Chevron deference applies to the Board based on the statutory alloca-

tion of power laid out by Congress in the INA); see also 8 C.F.R.

§ 1003.1(d) ("[T]he Board, through precedent decisions, shall provide

clear and uniform guidance to the Service, the immigration judges,

and the general public on the proper interpretation and administration

of the Act and its implementing regulations."). Similarly, the issues

remanded in Thomas called for the Board’s review of the evidence in

the record as well as the Board’s exercise of its conferred interpretive

expertise in the field of immigration law. Thomas, 126 S. Ct. at 1615

("The agency has not yet considered whether Boss Ronnie’s family

HUSSAIN v. GONZALES 13

presents the kind of ‘kinship ties’ that constitute a ‘particular social

group.’ The matter requires determining the facts and deciding

whether the facts as found fall within a statutory term.").

Here, by addressing the merits of Hussain’s Motion to Remand in

the first instance, the majority opinion, just as the Ninth Circuit erro-

neously did in Ventura and Thomas, usurps the authority of the Board

to rule on an issue of immigration law in the first instance, i.e.,

whether Hussain is eligible under the INA for the relief he seeks.

Moreover, as a plain reading of the majority opinion makes clear,

Hussain’s Motion to Remand requires review of the evidentiary

record in this case and resolution of factual issues, such as whether

Hussain was admitted into the United States. Ante at 8. There is noth-

ing in the circumstances of the instant case which suggest that this

case presents "rare circumstances" justifying exception from the ordi-

nary remand rule. Ventura, 537 U.S. at 16. For example, Hussain has

not expressly conceded on appeal before us that he is ineligible for

the relief he seeks in his Motion to Remand.

Perhaps the most troubling aspect of the majority opinion is that

one cannot tell from reading it upon what legal authority the majority

opinion based its refusal to remand this case to the Board. In fact, the

majority opinion does not cite a single case in which a federal court

of appeals has refused to remand a case to the Board under similar

circumstances post-Ventura and Thomas.

To summarize, the Supreme Court made quite clear in Ventura and

Thomas that a federal appellate court should remand legal and factual

issues of immigration law not previously addressed by the Board to

the Board for resolution in the first instance except in "rare circum-

stances . . . ." Ventura, 537 U.S. at 16. The majority opinion’s deci-

sion not to remand this case to the Board for the Board to rule on

Hussain’s Motion to Remand in the first instance creates an exception

to the ordinary remand rule that swallows the rule.

III.

In conclusion, I disagree with the majority opinion’s disposition in

this case. Instead of denying Hussain’s petition for review as the

majority opinion does, I would grant the petition for review and

14 HUSSAIN v. GONZALES

remand the case to the Board for issuance of a clarifying order as

detailed above. Accordingly, I dissent.