Gutnik, Ilya P. v. Gonzales, Alberto

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3007

ILYA PETROVICH GUTNIK,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A71 164 986

____________

ARGUED SEPTEMBER 6, 2006—DECIDED NOVEMBER 29, 2006

____________

Before ROVNER, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge. Ilya Petrovich Gutnik is a 26-year-

old native and citizen of Ukraine who came to live in the

United States with his parents as a legally admitted

refugee in 1993 when he was 14 years old. Twenty months

later, he adjusted his immigration status and became a

lawful permanent resident, the first of many steps on the

path to becoming a U.S. citizen. Unfortunately for Gutnik,

his path was interrupted by convictions for four violations

of Illinois law between 1999 and 2001. These matters

prompted the then-Immigration and Naturalization Service

(INS) (now the Department of Homeland Security) to

institute removal proceedings against him. When the

immigration judge (IJ), later affirmed by the Board of

2 No. 05-3007

Immigration Appeals (BIA), found Gutnik removable as

charged but granted his application for withholding of

removal, Gutnik filed this petition for review, challenging

both the application of particular removal grounds to

some of his convictions and the IJ’s conclusions as to the

unavailability of certain forms of relief from removal.

Gutnik is Jewish, and during his time in Ukraine,1 both

before and after the collapse of the former Soviet Union, he

and his family were on the receiving end of substantial

persecution for their ethnicity and religious beliefs. The

family (Gutnik, his parents, and his younger brother) fled

Ukraine and entered the United States as refugees under

the Lautenberg Amendment. See Foreign Operations,

Export Financing, and Related Programs Appropriations

Act of 1990 § 599D, Pub. L. No. 101-167, 103 Stat. 1195

(1989). After the one-year waiting period under 8 U.S.C.

§ 1159(a)(1) expired, Gutnik adjusted his immigration

status and became a lawful permanent resident. Because

the adjustment of status by a refugee operates retroactively,

see id. § 1159(a)(2), Gutnik was regarded as admitted for

permanent residence as of August 27, 1993, the exact date

when he arrived in the United States. This backdating is

1

There continues to be confusion over whether to use the

article “the” in connection with “Ukraine.” In the briefs, Gutnik’s

counsel uses “the Ukraine,” while the government uses “Ukraine.”

Likewise, at joint remarks in January 2005, Vice President

Cheney used “the Ukraine,” while President Yushchenko, the

elected leader of the country, used “Ukraine.” See Press Release,

Office of the Vice President, Vice President’s Remarks with

Ukrainian President Yushchenko (Jan. 26, 2005) (Villa Decius,

Krakow, Poland). We will use Ukraine, which is not only correct

but is also preferred by Ukrainians themselves, see Associated

Press, Terminology of Nationalism, N.Y. Times, Dec. 3, 1991, at

A10, and is the grammatically consistent choice, see Andrew

Gregorovich, Ukraine or “The Ukraine”?, FORUM Ukrainian

Review No. 90, Spring/Summer 1994.

No. 05-3007 3

significant because it enables a noncitizen to seek U.S.

citizenship at least a full year earlier than would otherwise

be possible. Rather than waiting 5 years from early 1995

when he adjusted his status, Gutnik could have undertaken

the naturalization process as soon as August 23, 1998, so

long as he maintained his U.S. residency and stayed out of

trouble until that time. Ultimately, his parents and younger

brother completed the naturalization process and became

U.S. citizens.

But Gutnik had problems. Not long after those 5 years

passed, he pled guilty to possession of drug paraphernalia

in Cook County, Illinois. This started a 3-year habit of

running into trouble with the law. He was convicted of that

crime on February 4, 1999. Three other convictions fol-

lowed: on May 24, 2000, for retail theft; on March 29, 2001,

for possession of a controlled substance (.4 grams of heroin);

and on May 10, 2001, for a second retail theft. As we said,

these activities2 brought Gutnik to the attention of INS, and

in early 2002 it served him with a notice to appear for

deportation proceedings.

INS ultimately charged that Gutnik was removable on

three separate grounds: (1) the two retail theft offenses

were multiple convictions for crimes of moral turpitude

under 8 U.S.C. § 1227(a)(2)(A)(ii); (2) his 1999 conviction for

possession of drug paraphernalia and 2001 heroin posses-

sion offense each constituted crimes relating to a controlled

substance under § 1227(a)(2)(B)(i); and (3) his conviction for

heroin possession was also an aggravated felony under

§ 1227(a)(2)(A)(iii). In response, Gutnik disputed the INA’s

2

Gutnik blames all of his problems on a drug addiction which he

says he has licked, in part by a stay at the Rosecrance Rehabil-

itation Center in Rockford, Illinois. He went on, he says, to get

a GED and enroll at Harper College (Palatine, Illinois), where

he attained a 4.0 grade point average.

4 No. 05-3007

characterization for immigration purposes of his heroin and

paraphernalia offenses and applied for several deferrals

from removal: asylum, cancellation of removal, withholding

of removal, relief under the Convention Against Torture

(CAT), and a § 1159(c) waiver of inadmissability in conjunc-

tion with an adjustment of status to permanent residency.

In 2004, following a hearing, an IJ ordered Gutnik’s

permanent resident status terminated and denied his

applications for asylum, cancellation of removal, and a

waiver of inadmissability. The IJ held (1) that Gutnik’s

heroin possession conviction is an aggravated felony

under 8 U.S.C. § 1227(a)(2)(A)(iii) rendering him inelig-

ible for asylum; (2) that the conviction for possession of

drug paraphernalia constitutes a controlled substance

offense under § 1227(a)(2)(B)(i); and (3) that Gutnik was

ineligible to apply for the waiver of inadmissability avail-

able to refugees under 8 U.S.C. § 1159(c) because

his adjustment of status to a permanent resident in 1995

terminated his refugee status. At the same time, the IJ

found Gutnik’s testimony to be credible, noting that he

had suffered past persecution on the basis of his ethnicity

and religious beliefs and would be likely to do so again if he

was returned to Ukraine; he therefore granted Gutnik’s

request for withholding of removal. Having done so, the IJ

declined to address Gutnik’s application for relief under the

CAT. On appeal, the BIA issued a brief order in accordance

with the streamlining procedures of 8 C.F.R. § 1003.1(e)(5)

that adopted, affirmed, and supplemented the IJ’s decision.

So as things stand now, Gutnik is relieved, at least until

conditions improve, from being returned against his will

to Ukraine. But without a grant of asylum or a § 1159(c)

waiver of inadmissability, his is a limited victory. Withhold-

ing of removal does not prevent the government from

removing him to some other country, nor does it offer him

any avenue to regain his permanent resident status. With

this in mind, Gutnik appeals the BIA’s order affirming

the decision of the IJ. Our jurisdiction is provided by

No. 05-3007 5

8 U.S.C. § 1252(a)(2)(D) (authorizing review of constitu-

tional claims and questions of law raised in a petition for

review of removal proceedings). The IJ’s decision, as

supplemented by the BIA, serves as the basis for our

review. Niam v. Ashcroft, 354 F.3d 652, 655-56 (7th Cir.

2004).

Gutnik filed his opening brief on September 19, 2005. He

now admits that all of his Illinois crimes constitute convic-

tions under the immigration laws and that he is eligible for

removal from this country on the basis of two separate

statutory grounds: His two convictions for retail theft are

multiple crimes involving moral turpitude under

§ 1227(a)(2)(A)(ii), and his heroin possession conviction

is a controlled substance offense under § 1227(a)(2)(B)(i).

But he challenges several other conclusions of the IJ, as

affirmed by the BIA.

Gutnik first argues that his heroin possession conviction,

a felony in Illinois, is not an aggravated felony under

§ 1227(a)(2)(A)(iii) because at the federal level that crime is

punishable as a misdemeanor. At the time of Gutnik’s brief,

this circuit had yet to adopt this so-called “hypothetical

federal felony approach” for characterizing violations of

state law as aggravated felonies for the purposes of

§ 1227(a)(2)(A)(iii). But in Gonzales-Gomez v. Achim, 441

F.3d 532 (7th Cir. 2006), we did just that. The government

concedes the direct application of Gonzales-Gomez, which

removes the bar to Gutnik’s asylum claim. We must

therefore remand to the BIA for further proceedings.3

3

Gutnik will have his asylum application considered unless the

Supreme Court rejects the position taken by this circuit in

Gonzales-Gomez when it resolves Lopez v. Gonzales, 417 F.3d 934

(8th Cir. 2005), petition for cert. granted, 74 U.S.L.W. 3289 (U.S.

April 3, 2006) (oral argument held Oct. 3, 2006). Should that

occur, our remand on the aggravated felony issue will be vacated

and Gutnik will be ineligible for asylum.

6 No. 05-3007

In fact, it appears that Gutnik has already demonstrated

his eligibility for asylum.4 As we have said, the IJ’s grant of

withholding of removal indicates that Gutnik established

that he is more likely than not to be persecuted upon return

to Ukraine. The standard of proof to demonstrate refugee

status, and therefore eligibility for asylum, see 8 U.S.C.

§§ 1101(a)(42)(A) & 1158(b)(1)(B)(i)—a “well-founded fear

of persecution”—is lower. INS v. Cardoza-Fonseca, 480 U.S.

421, 448-49 (1987). It remains for the government to

favorably exercise its discretion in granting asylum to

eligible refugees. Ghebremedhin v. Ashcroft, 392 F.3d 241,

244 (7th Cir. 2004).

Gutnik next asks us to review the IJ’s conclusion that his

Illinois conviction for possession of drug paraphernalia is a

violation of a law relating to a controlled substance under

8 U.S.C. § 1227(a)(2)(B)(i):

Any alien who at any time after admission has been

convicted of a violation of . . . any law or regulation of a

State . . . relating to a controlled substance (as defined

in section 102 of the Controlled Substances Act (21

U.S.C. 802)), other than a single offense involving

possession for one’s own use of 30 grams or less of

marijuana, is deportable.

The government defends the IJ’s view and points to the case

upon which the IJ relied, Luu-Le v. INS, 224 F.3d 911 (9th

Cir. 2000), where the Ninth Circuit found that an Arizona

drug paraphernalia statute was indeed covered by this INA

provision.

4

We assume that Gutnik’s loss of his lawful permanent resident

status some 9 years after his arrival in the United States consti-

tutes a changed condition that will permit him to apply for asylum

even though it has been far more than a year since he arrived in

the United States. See 8 U.S.C. § 1158(a)(2).

No. 05-3007 7

We find it strange that under the Luu-Le interpretation of

the statute a noncitizen caught with a small article of

paraphernalia used to consume a tiny quantity of mari-

juana could be removable, while a noncitizen actually

caught with the drug, so long as it was less than 30 grams,

would be in no such danger because of the express exception

§ 1227(a)(2)(B)(i) provides for small-quantity marijuana

offenses. This is not merely some abstract possibility—it

may well describe this case. The IJ asked Gutnik about his

conviction for possession of drug paraphernalia:

Q. And where were you arrested at that time? How was

it that you were charged with possession of drug

paraphernalia?

A. I was in a car with—and smoking a joint, and a

police officer pulled up.

This description of the events, if true, suggests that

whatever “paraphernalia” Gutnik was caught with was

clearly for his personal use of less than 30 grams of mari-

juana. Unfortunately, the record provides no further details

about the conduct behind Gutnik’s paraphernalia convic-

tion, and the Illinois statute in question, 720 ILCS 600/3.5,

does not limit its application to offenders holding parapher-

nalia that will be used with more than 30 grams of mari-

juana.

What we do know is that Gutnik pled guilty to the

possession of drug paraphernalia charge. Knowing this, and

based on his testimony regarding his conduct, we might

deduce that he agreed to plead to the lesser paraphernalia

charge rather than face conviction for marijuana possession.

Yet, under the Luu-Le approach to § 1227(a)(2)(B)(i) urged

by the government, Gutnik became deportable by pleading

to the lesser crime. Had he instead taken his chances with

the more serious conviction for marijuana possession, he

would have faced no immigration consequences. Talk about

absurd results.

8 No. 05-3007

But neither side tells us why it is necessary to decide this

issue at this time. The IJ was concerned with whether the

drug paraphernalia offense relates to a controlled substance

because of the effect he believed the resolution of that

question would have on Gutnik’s application for cancella-

tion of removal. One of the requirements to be eligible for

that form of relief is to have continuous physical presence

in the U.S. for 7 years. See 8 U.S.C. § 1229b(a). Under

§ 1229b(d)(1), continuous physical presence ends when a

noncitizen commits a deportable offense or when he or she

is served with a notice to appear, whichever occurs earlier.

Gutnik was served with a notice to appear in 2002, but all

of his convictions preceded that time, and the first of these

was the drug paraphernalia offense in early 1999. In other

words, because Gutnik arrived in the U.S. in August of

1993, the effect of the IJ’s ruling that the drug parapherna-

lia offense made him deportable was to preclude his

eligibility for cancellation of removal.

But Gutnik has since conceded that he is ineligible for

cancellation of removal based upon his two retail theft

convictions, regardless of whether possession of drug

paraphernalia is a deportable offense. Beyond that, we

can find no other reason why the issue now matters. As

we have said, Gutnik has already conceded deportability on

other grounds. His eligibility for asylum is also unaffected:

the IJ has already held that none of his convic-

tions constitute a particularly serious crime under

§ 1158(b)(2)(A)(ii), and there is no serious argument after

Gonzales-Gomez that possession of drug paraphernalia

in Illinois is an aggravated felony. Neither is the exercise of

discretion upon review of his asylum application at

stake: Criminal activity is taken into account as an adverse

discretionary factor in asylum application proceedings

whether or not that activity also happens to make a

noncitizen removable. See Shahandeh-Pey v. INS, 831 F.2d

1384, 1388 (7th Cir. 1987) (describing adverse factors

No. 05-3007 9

properly considered at discretionary stage of asylum

proceedings); cf. Dhine v. Slattery, 3 F.3d 613, 619 (2d Cir.

1993) (“Seven convictions over seven years—even seven

misdemeanors—easily furnish a rational basis for the

Attorney General’s exercise of discretion.”).

None of this is to suggest that Gutnik’s four convic-

tions should outweigh his fear of future persecution if

returned to Ukraine, his strong family ties to the U.S., and

any other discretionary factors that weigh in his favor. It is

for the BIA to make that determination on remand, exercis-

ing the authority given it by the Attorney General. See INS

v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999). But we simply

see nothing that will change for Gutnik by our addressing

this aspect of the IJ’s decision, and so we decline to do so.

Finally, Gutnik appeals the IJ’s decision that he is

ineligible at this time to apply for a nunc pro tunc waiver of

inadmissibility under 8 U.S.C. § 1159(c) in conjunction with

an adjustment of status. Whether or not the BIA grants

Gutnik’s application for asylum on remand, his criminal

convictions render him inadmissible to the United States

under 8 U.S.C. § 1182(a), meaning that he is precluded from

successfully adjusting his status to lawful permanent

residency absent some form of waiver. See generally § 1159.

If Gutnik can apply for and be granted that waiver now

notwithstanding his asylum application, he can immedi-

ately try to adjust his status to lawful permanent resident

status under § 1159(a), backdated to his initial date of entry

in 1993. This result would also make him immediately

eligible to naturalize and become a U.S. citizen.

But if he is not eligible to apply for that waiver now,

Gutnik must hope for a grant of asylum and wait one year

before he can apply. If a waiver is then granted, he may

adjust status under § 1159(b), but he will be subject to

two less favorable conditions. First, his adjustment of status

will be subject to the annual numerical limitation on the

10 No. 05-3007

number of adjustments for asylees, see § 1159(b); 8 C.F.R.

§ 209.2(a)(1)(vi). Because history suggests that the number

will be exceeded, Gutnik will be placed on a waiting list.

Second, whenever he is finally able to adjust status, his

lawful permanent residency will only backdate one year

from the date of approval of the application. § 1159(b). In

other words, it will be some time before he can seek U.S.

citizenship.

Eligibility for the more desirable § 1159(a) adjustment

requires that a noncitizen have been admitted to the United

States as a refugee under 8 U.S.C. § 1157. We have already

said that Gutnik meets the definition of refugee under 8

U.S.C. § 1101(a)(42). But in order to achieve refugee status,

a noncitizen must do more than simply meet that definition.

He must undergo an application process, which requires

among other things that he have a sponsor, fill out and file

a form, and undergo an interview. Gutnik went through

this when he came to the United States the first time. But

the government argues, and the IJ agrees, that Gutnik’s

formal refugee status ended when he adjusted to lawful

permanent residency.

Gutnik disagrees. He contends that he continues to

maintain refugee status in perpetuity because § 1101(a)(42)

contains no temporal limits and the INA and subsequent

regulations provide formal procedures by which the govern-

ment may terminate refugee status, see § 1157(c)(4); 8

C.F.R. §§ 207.9, 240.35(c), and none of those procedures

have been undertaken here. He also points to § 1159(a),

which explains that refugees under § 1157 who adjust

status shall be “regarded as lawfully admitted to the United

States for permanent residence.” § 1159(a)(2) (emphasis

added). Under Gutnik’s reading, the “regarded as” language

says it all: after he adjusted status, he was, in legal effect,

a refugee regarded as a lifetime permanent resident. Once

the government successfully terminated his lawful perma-

nent resident status, Gutnik simply reverted to being a

No. 05-3007 11

“mere” refugee. In his view, the government must take a

further formal step, which it has not, to strip away that

status.

The government counters by pointing out that adjustment

of status under § 1159(a) only applies to noncitizens who

have not “acquired permanent resident status.” Id.

§ 1159(a)(1)(C). Gutnik may have lost his permanent

resident status, but that does not negate the fact that he

has already acquired it. The government has also unearthed

some favorable legislative history that suggests

a congressional intent for refugee status and lifetime

permanent residency to exist exclusively of one another.

See, e.g., 126 Cong. Rec. S3756, 3757 (Feb. 26, 1980)

(describing how new refugee status will end after one

year, “after which the refugee can adjust to permanent

resident status”).

Where the language of the INA is ambiguous, we will

ordinarily accord Chevron deference to the BIA’s reading if

it is based on a permissible construction. INS v. Aguirre-

Aguirre, 526 U.S. 415, 424-25 (1999). The wrinkle here

is that the BIA’s decision was issued under the streamlined

procedures of 8 C.F.R. § 1003.1(e). Those procedures direct

a single BIA member (rather than the three-member panel

traditionally used) to dispose of appeals either by affirming

the IJ’s opinion without order, see § 1003.1(e)(4), or by

supplementing that opinion with a “brief order,” see

§ 1003.1(e)(5).

Here the BIA followed § 1003.1(e)(5) and issued a brief

order agreeing with the immigration judge and supplement-

ing his reasoning:

Although the respondent was admitted to the United

States as a refugee under section 209 of the Act, his

status was subsequently adjustment [sic] to lawful

permanent resident. The respondent’s contention that

he remains eligible for a section [1159(c)] waiver under

12 No. 05-3007

these circumstances places him at an unfair advan-

tage over other aliens and would improperly insulate

him from his criminal misconduct which occurred many

years after his arrival as a refugee.

We have not previously directly addressed the issue

whether BIA interpretations made pursuant to the stream-

lined procedures of § 1003.1(e) merit Chevron deference,

although deference appears to have been assumed in

some cases. See, e.g., Knutsen v. Gonzales, 429 F.3d 733,

736 (7th Cir. 2005). But Gutnik directs us to a decision from

the Third Circuit, Smriko v. Ashcroft, 387 F.3d 279 (3d Cir.

2004), that he insists is applicable here.

The facts of Smriko look strangely familiar. The case

involved the appeal of a citizen of Bosnia-Herzegovina

admitted to the United States as a refugee but convicted of

three retail theft offenses that earned him the INA’s

attention. 387 F.3d at 282. Like Gutnik now, Smriko argued

that he maintained his refugee status even after being

stripped of his permanent residency because it could only be

terminated in accordance with certain enumerated grounds

in the INA. Id. at 283. The IJ disagreed, finding without

reference to supporting precedent that Smriko’s refugee

status ended when he adjusted to permanent residency. Id.

at 282. The IJ ordered his removal and a single BIA

member affirmed without opinion, pursuant to the stream-

lined procedures of 8 C.F.R. § 1003.1(e)(4). Id.

On appeal, the Third Circuit determined, as we do, that

the INA provisions relating to the interplay between

refugee and permanent resident status are ambiguous. It

then noted that, although under Chevron and Aguirre-

Aguirre it would usually defer to a plausible “agency

answer,” the IJ’s decision “offered no analysis of the

relevant statutory provisions,” which, when combined

with the single-member BIA affirmance without opinion,

left the court with no analysis of the statutory interpreta-

No. 05-3007 13

tion issue to which it could defer. Id. at 288-89. The court

then questioned whether the very rationale underlying

Chevron deference could be said to apply to the streamlined

procedures:

As Aguirre-Aguirre determined that the BIA’s case-by-

case decision-making should be accorded Chevron

deference, it would seem to be, at the very least, an

open question as to whether an IJ’s decision affirmed

through the streamlining process would be entitled to

Chevron deference. Although the BIA has directed us to

review the IJ’s opinion in streamlined cases, deferring

to the reasoning of an IJ from which the BIA would be

free to depart in other cases would seem highly prob-

lematic.

Id. at 289 n.6 (emphasis in original).

Despite Gutnik’s pleas to the contrary, however, his case

differs from Smriko. Unlike in that case, the IJ’s order as to

Gutnik was not affirmed without opinion under 8 C.F.R.

§ 1003.1(e)(4); the BIA used the alternative streamlined

procedures of 8 C.F.R. § 1003.1(e)(5). In other words, the

BIA provided reasoning, albeit brief, to which we can defer.

Even though we might interpret the statute in Gutnik’s

favor upon de novo review of the issue, we are mindful that

“[j]udicial deference to the Executive Branch is especially

appropriate in the immigration context.” Aguirre-Aguirre,

526 U.S. at 416. We therefore adopt the BIA’s interpreta-

tion.

But we are not finished with Smriko. Gutnik has made an

additional argument that his case was improperly subjected

to the streamlined review process in the first place because

the legal issue regarding the effect of adjustment of status

upon a noncitizen’s refugee status is not governed by any

prior BIA or federal court precedent. As a result, Gutnik

argues, his case falls within one of the exceptions set forth

in the streamlining regulations at 8 C.F.R. § 1003.1(e)(6)

14 No. 05-3007

such that his appeal of the IJ’s decision should have been

reviewed by a three-member BIA panel. Cf. Smriko, 387

F.3d at 289. Section 1003.1(e)(6) provides:

Cases may only be assigned for review by a

three-member panel if the case presents one of these

circumstances:

(i) The need to settle inconsistencies among the

rulings of different immigration judges;

(ii) The need to establish a precedent constru-

ing the meaning of laws, regulations, or procedures;

(iii) The need to review a decision by an immigra-

tion judge or the Service that is not in conformity

with the law or with applicable precedents;

(iv) The need to resolve a case or controversy of

major national import;

(v) The need to review a clearly erroneous factual

determination by an immigration judge; or

(vi) The need to reverse the decision of an immi-

gration judge or the Service, other than a reversal

under § 1003.1(e)(5).

In Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003), we

found that the streamlined review scheme withstands

constitutional challenge on due process grounds, but we

also hinted at some room for courts to monitor the ap-

plication of those procedures to a given case. Although

Gutnik has not referenced Georgis in his brief, his argu-

ment sounds like an attempt to present his case as an

example of a particularly troublesome hypothetical scenario

that we anticipated in that decision.

In the course of considering a challenge to the use by

the BIA of the streamlining procedures, we determined

in Georgis that in most cases our ability to undertake a full

review would not be affected by the propriety of the BIA’s

decision whether or not to streamline a case because, even

No. 05-3007 15

if the BIA had given us nothing to review, we could still

look to the IJ’s opinion. Id. at 967. But we also noted one

example in which we believed the use of those procedures

could make a significant difference. As we explained:

Consider, on the other hand, a case that is not

“controlled by existing Board or federal court prece-

dent”; for instance, a case interpreting a new regula-

tion. If the BIA (improperly) streamlined that case,

which then came before us on appeal, it could make a

slight difference whose decision we review. If we look at

the IJ’s, we would decide the legal issue on the merits.

But if we look at the BIA’s, we would simply say that

the case should have been considered by a three-Mem-

ber panel and remand to the BIA for consideration. And

this latter course seems preferable because it gives the

BIA the first crack at interpreting its own rules.

Id. at 967 n.4.

Although the issue was discussed in Jarad v. Gonzales,

461 F.3d 867 (7th Cir. 2006), we have yet to definitively

determine whether we even have jurisdiction to review a

BIA decision to commit an appeal to streamlined proce-

dures. Other circuits have split on this question. Compare

Kambolli v. Gonzales, 449 F.3d 454, 460-65 (2d Cir. 2006)

(no jurisdiction), and Tsegay v. Ashcroft, 386 F.3d 1347,

1353-58 (10th Cir. 2004) (same), and Ngure v. Ashcroft, 367

F.3d 975, 983 (8th Cir. 2004) (same), with Smriko, 387 F.3d

at 290-95 (remanding case for three-member BIA panel

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

1086-88 (9th Cir. 2004) (same), and Haoud v. Ashcroft, 350

F.3d 201, 206-08 (1st Cir. 2003) (same). But assuming that

we do, Gutnik’s case, though similar, is not the hypothetical

we envisioned in Georgis. Like Smriko, Georgis was con-

cerned with the situation in which the BIA affirmed the IJ

without opinion under 8 C.F.R. § 1003.1(e)(4). The discus-

sion in Georgis recognizes that, because (e)(4) provides that

16 No. 05-3007

a single BIA member “may affirm . . . if the Member

determines . . . that . . . the issue on appeal is squarely

controlled by existing Board or federal court precedent,” we

would have some concerns—again, assuming jurisdic-

tion—if the novel issue reached by the IJ here were simply

affirmed without opinion.

We point out again that for Gutnik, the BIA issued a brief

order under the (e)(5) procedure. That provision does not

expressly require the reviewing single Board member to

abstain from resolving issues not controlled by exist-

ing precedent. Instead, it says only that “the Board member

shall issue a brief order affirming, modifying, or remanding

the decision under review, unless the Board member

designates the case for decision by a three- member panel

. . . .” 8 C.F.R. § 1003.1(e)(5). We read (e)(4) and (e)(5)

together to require only that the BIA not review cases

resolving novel issues by affirmance without opinion. At

that point, the single BIA member may elect to refer the

appeal to a three-member panel, but there is no require-

ment that she do so.

It may well be preferable as a theoretical matter that

resolution of any legal questions not controlled by prior

precedent be submitted to a three-member BIA panel for

review, and we would encourage the BIA to proceed in

this fashion when possible. But to read the streamlining

regulations contrary to their plain language and require

such a step would greatly weaken their designed effect

by encouraging BIA members to ignore the (e)(5) proce-

dure altogether and send anything requiring elaboration to

a three-member panel. It would only exacerbate the difficul-

ties created by the BIA’s already heavy caseload.

In any case, the use of the (e)(5) procedure tempers the

fears we raised in Georgis: the BIA has indeed had “first

crack” at interpreting its own rules in this case, and IJs

addressing this issue in the future will have authoritative

No. 05-3007 17

precedent upon which to rely. We therefore affirm the

BIA on this issue. Gutnik no longer qualifies as a refugee

and is therefore ineligible to apply for a § 1159(c) waiver of

inadmissability in conjunction with an adjustment of status.

The petition for review is GRANTED as to some aspects of

Gutnik’s appeal and DENIED as to others as discussed

herein. The matter is REMANDED for further proceedings.

Mr. Gutnik is awarded costs on his appeal.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-29-06