Smriko v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

10-26-2004

Smriko v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-1085

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation

"Smriko v. Atty Gen USA" (2004). 2004 Decisions. Paper 163.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/163

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL Peter D. Keisler

Anthony Wray Norwood

IN THE UNITED STATES COURT Earle B. Wilson

OF APPEALS Michael P. Lindemann

FOR THE THIRD CIRCUIT John D. Williams

Terri J. Scadron (Argued)

U.S. Department of Justice

NO. 03-1085 Office of Immigration Litigation

Ben Franklin Station

P.O. Box 878

SEJID SMRIKO Washington, DC 20044

Petitioner

v.

OPINION OF THE COURT

JOHN ASHCROFT,

ATTORNEY GENERAL

OF THE UNITED STATES

Respondent STAPLETON, Circuit Judge:

Sejid Smriko was a lawful

On Petition for Review of an Order permanent resident of the United States for

of the Board of Immigration Appeals less than five years when he committed a

A71-685-464 crime involving moral turpitude that, under

8 U.S.C. § 1227(a)(2)(A)(i), subjects one

to deportation. Smriko was admitted to the

Argued April 16, 2004 United States, however, with “refugee

BEFORE: RENDELL, STAPLETON status,” pursuant to a section of the

and LAY,* Circuit Judges Immigration and Nationality Act (“INA”)

that implements the United Nations

(Opinion Filed: October 26, 2004) Protocol Relating to the Status of

Refugees. Smriko requested that the

Immigration Judge (“IJ”) terminate his

James G. Gavin (Argued) removal proceedings because, he argued,

21 West Broad Street refugee status can only be cancelled

Burlington, NJ 08016 pursuant to limited grounds specified in

Attorney for Petitioner the INA, none of which were met here.

The IJ agreed with Smriko that, if he still

* Hon. Donald P. Lay, United States had refugee status, he would not be

Circuit Judge for the Eighth Circuit, sitting eligible for deportation. The IJ suggested,

by designation. however, that when an alien “voluntarily

chooses” to “adjust” his status from that of

a refugee to that of a lawful permanent deference in making such determinations,

resident, the alien loses refugee status and we then examine Smriko’s contention that

its accompanying statutory protections. his case was improperly subjected to the

Although the IJ did not provide any BIA’s affirmance without opinion process,

supporting precedent, he denied Smriko’s thereby erroneously preventing the BIA

motion to terminate removal proceedings from offering its interpretation of the

based on this reading of the INA. The statutory provision at issue here. We then

Board of Immigration Appeals (“BIA” or conclude that, in most situations, we may,

“Board”) thereafter summarily affirmed in reviewing a final order of deportation,

the IJ’s decision without opinion. Smriko review the BIA’s decision to issue an

now petitions for review of the IJ’s affirmance without opinion in a particular

decision, as well as the BIA’s decision to case. Here, we conclude that the Board

affirm without opinion a case that he member charged with examining Smriko’s

maintains raises novel issues of statutory case clearly acted arbitrarily and

interpretation. capriciously by issuing an affirmance

without opinion, in violation of the BIA’s

We first examine the merits of streamlining regulations, with respect to a

Smriko’s challenge, and conclude that his case presenting novel and substantial legal

view of refugee status–that it can only be issues without precedent. This agency

terminated pursuant to specific enumerated action deprived us of a Board

grounds contained in the INA–is consistent interpretation of the INA that we believe

with the text and some of the legislative the applicable agency regulations intended

history of the INA. We then note the us to have before addressing the merits of

absence of any precedent counseling in Smriko’s petition. Accordingly, we will

favor of or against Smriko’s proposed grant the petition for review and remand so

interpretation, and briefly examine the that the BIA may exercise its expertise and

Government’s argument that an overall, address Smriko’s proposed reading of the

expert examination of our nation’s INA.

immigration laws and system would

counsel against Smriko’s proposed reading I.

of the INA, and, instead, would suggest

that the INA “implicitly” contemplates that The facts before us are neither

refugees who achieve lawful permanent complicated, nor in dispute. Smriko is a

resident status simultaneously lose their native and citizen of Bosnia-Herzegovina

refugee status. who was admitted to the United States as

a refugee on October 20, 1994 pursuant to

Recognizing that the BIA has been 8 U.S.C. § 1157. At some point thereafter,

c h a r g e d w i t h p r o v id i n g e x p e rt Smriko was granted lawful permanent

interpretations of our nation’s immigration resident status pursuant to 8 U.S.C. §

laws and that this Court must give the BIA 1159(a)(2), backdated to his entry date of

2

October 20, 1994. status, and after the BIA’s affirmance

without opinion, this petition followed.1

Within five years of his entry into

the United States, Smriko was convicted II.

on three occasions of retail theft offenses

in Pennsylvania and New Jersey. On We have jurisdiction to review a

December 26, 1996, he was convicted of final order of removal pursuant to 8 U.S.C.

retail theft in violation of 18 Pa. Cons. § 1252(a)(1). See M ulanga v. Ashcroft,

Stat. § 3929(a)(1), and sentenced to pay a 349 F.3d 123, 131 (3d Cir. 2003).

fine and costs. On April 1, 1997, he was “[W]hen the BIA issues an [affirmance

convicted of shoplifting in violation of without opinion] under the streamlining

N.J. Stat. Ann. § 2C:20-11b(2), and regulations, we review the IJ’s opinion and

received a suspended sentence of five scrutinize its reasoning.” Dia v. Ashcroft,

days’ imprisonment. Finally, on April 8, 353 F.3d 228, 245 (3d Cir.2003) (en banc).

1999, he was convicted of retail theft and “ W e review the [agency’s] legal

receiving stolen property, in violation of determinations de novo, subject to

18 Pa. Cons. Stat. §§ 3929(a) & 3925(a), established principles of deference.”

respectively, and was assessed costs and Wang v. Ashcroft, 368 F.3d 347, 349 (3d

sentenced to one year of probation. Cir. 2004) (citing Chevron v. Nat. Res.

Def. Council, 467 U.S. 837, 844 (1984));

The former Immigration and see infra note 6 (discussing the propriety

N a t u r a l iz a t io n S ervice (“ I.N .S .” ) of giving Chevron deference to an IJ

commenced removal proceedings against decision that has been affirmed without

Smriko on August 24, 1999, charging him opinion by the BIA).

with removability on two statutory

grounds: (1) u nde r 8 U .S.C . § III.

1227(a)(2)(A)(i), as an alien convicted of

a crime involving m oral turpitude Title 8, Section 1227(a)(2)(A)(i) of

committed within five years after his the United States Code, provides, in

admission for which a sentence of one year

or longer may be imposed; and (2) under 8

U.S.C. § 1227(a)(2)(A)(ii), as an alien 1

The Government initially argued that

convicted of two or more crimes involving

the jurisdictional bar of 8 U.S.C. §

moral turpitude not arising out of a single

1252(a )(2 ) (C ) applied here, and,

scheme of criminal misconduct. Smriko

accordingly, moved to dismiss the petition

argued that his convictions were not for

for lack of jurisdiction. The Government

crimes involving moral turpitude, but the

has since conceded, and we agree, that §

IJ rejected that challenge. The IJ also

1252(a)(2)(C) is not implicated in this

r e j e cted Smriko’s aforementioned

case. Accordingly, we will deny by

argument with respect to his refugee

separate order the motion to dismiss.

3

pertinent part: crime involving moral turpitude. He

argues that shoplifting, the offense for

Any alien who–(I) is which he was convicted under § 3925(a),

convicted of a c rime is not a “crime involving moral turpitude,”

involving moral turpitude essentially because it is a prevalent crime

committed within five years in our modern world, and therefore that his

. . . after the date of violation of § 3925(a) would not qualify

admission, and (II) is him for deportation under 8 U.S.C. §

convicted of a crime for 1227(a)(2)(A)(i).

which a sentence of one

year or longer may be W e recently explain ed, in

imposed, is deportable. e x a m ining § 3925( a ) , the v e ry

Pennsylvania statute at issue here, that

Id. As noted above, Smriko was convicted “[w]hether an alien’s crime is one

for receiving stolen property under 18 Pa. involving moral turpitude is determined by

Cons. Stat. § 3925(a).2 That conviction the statute and record of conviction rather

unquestionably met the criteria of § than the alien’s specific act.” De

1227(a)(2)(A)(i). Smriko committed the § Leon-Reynoso v. Ashcroft, 293 F.3d 633,

3925(a) violation on December 19, 1998, 635 (3d Cir. 2002). That is, “the nature of

within five years of his date of admission an alien’s crime is determined by the

to the United States. Under Pennsylvania statute and record of conviction, not from

law, given the amount of stolen property the specific acts surrounding the

involved here, that offense constituted a conviction.” Id. (parenthetically quoting

misdemeanor in the third degree, see 18 Alleyne v. I.N.S., 879 F.2d 1177, 1185 (3d

Pa. Cons. Stat. § 3903(b)(2), which carried Cir.1989)) (alteration omitted). While we

a potential prison sentence of one year, see noted that “[t]he term ‘moral turpitude’

18 Pa. Cons. Stat. § 1104(3). defies a precise definition,” we indicated

that it contains “an ‘honesty’ component .

Smriko argues only that his . . , which includes: ‘[c]onduct that is

conviction under § 3925(a) was not for a contrary to justice, honesty, or morality.’”

Id. at 635-36 (quoting Black’s Law

Dictionary 1026 (7th ed. 1999))

2 (additional citations omitted). After noting

That section provides: “A person is

that “[c]ourts have held that knowingly

guilty of theft if he intentionally receives,

receiving stolen property is a crime of

retains, or disposes of movable property of

moral turpitude,” 293 F.3d at 636, and that

another knowing that it has been stolen, or

violation of 18 Pa. Cons. Stat. § 3925(a)

believing that it has probably been stolen,

“speak[s] . . . to the honesty of a person,”

unless the property is received, retained, or

id. at 637, we determined that a violation

disposed with intent to restore it to the

of that section amounts to a crime

owner.” Id. § 3925(a).

4

involving moral turpitude, id. at 637. De be terminated through a specific statutory

Leon-Reynoso clearly controls this case. process before he can be removed begins

We accordingly reject Smriko’s insistence with the 1967 United Nations Protocol

that his § 3925(a) conviction was not for a Relating to the Status of Refugees, 19

“crime involving moral turpitude.” 3 U.S.T. 6223, T.I.A.S. No. 6577 (the

“Protocol”). The United States is a party

IV. to the Protocol, which incorporates by

reference Articles 2 through 34 of the

Our task is not complete, however, 1951 United Nations Convention Relating

as Smriko suggests that the INA affords to the Status of Refugees, 19 U.S.T. 6259,

him additional protection as one who 189 U.N.T.S. 150 (the “Convention”), see

received “refugee status” upon his entry I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,

into the United States. While Smriko 427 (1999), and incorporates the definition

concedes that 8 U.S.C. § 1227(a)(2)(A)(i) of the term “refugee” found in Article I of

subjects a lawful permanent resident, such the Convention. See Protocol Art. I(1) &

as himself, to deportation, he argues that (2).

the INA only allows one with “refugee

status” to be removed under limited Under Article I of the Convention,

circumstances. He argues that “refugee entitled “Definition of the term ‘refugee,’”

status” coexists with lawful permanent one ceases to be a refugee if any of six

resident (“LP R”) status, providing events occur. See Convention Art. I(C).

additional protection, and that he cannot be In the case of a refugee in Smriko’s

removed unless one of the limited grounds situation, refugee status would not cease

under the INA for cancelling refugee until “he has acquired a new nationality,

status is met. and enjoys the protection of the country of

his new nationality.” Id. I(C)(3). The

A. Smriko’s Contention that Refugee United Nations High Commissioner for

Status Coexists with LPR Status Refugees has taken the position that this

provision “means that the refugee must

Smriko’s contention that refugee secure and be able to exercise all the rights

status coexists with LPR status and must and benefits entailed by possession of the

nationality of the country” before losing

refugee status, and because LPR status

3 does not entitle one to the same rights and

Having determined that Smriko’s §

benefits as a United States national,

3925(a) conviction amounted to a

obtaining LPR status is not a basis for the

deportable offense under 8 U.S.C. §

cessation of refugee status under the

1227(a)(2)(A)(i), we need not address the

Convention. See Interpreter Releases,

Government’s charge that Smriko’s other

Becoming LPR Does Not Terminate

convictions amounted to deportable

Refugee Status, UNHCR Says, 80 No. 11

offenses.

5

Inter. Rel. 413, App. (2003) (statement nationality, is outside any

from Office of the United Nations High country in which such

Commissioner for Refugees). pe r son last habitually

Accordingly, Smriko argues that the resided, and who is unable

Convention contemplates him retaining or unwilling to return to,

refugee status even after he achieved LPR and is unable or unwilling to

status because attaining LPR status did not avail himself or herself of

give him a “new nationality” that would the protection of, that

terminate the need for refugee status under country because of

the Convention. persecution or a

w e l l -f o u n d e d f e a r o f

The Refugee Act of 1980, 94 Stat. persecution on account of

102, brought into existence the current race, religion, nationality,

definition of “refugee” in the INA, see 8 membership in a particular

U.S.C. § 1101(a)(42)(A). The Supreme social group, or political

Court has instructed that “[i]f one thing is opinion. . . .

clear from the legislative history of the . .

. definition of ‘refugee,’ and indeed the Id. “Refugee” is used in many sections of

entire 1980 [Refugee] Act, it is that one of the INA. The provision under which

Congress’ primary purposes was to bring Smriko was admitted, 8 U.S.C. §

U n i t e d States refugee law into 1157(c)(1), authorizes the Attorney

conformance with the 1967 United Nations General “in [his or her] discretion and

Protocol Relating to the Status of pursuant to such regulations as [he or she]

Refugees.” I.N.S. v. Cardoza-Fonseca, may prescribe” to admit a limited number

480 U.S. 421, 436 (1987). Accordingly, of “refugees” annually. Refugees admitted

Smriko insists that the definition of under 8 U.S.C. § 1157, such as Smriko,

“refugee” found in the INA and the may then become lawful permanent

accompanying provisions for giving aliens residents after one year pursuant to 8

“refugee status,” which we address below, U.S.C. § 1159(a)–the key statutory

are to be construed as implementing the provision at issue here. This section,

protections for refugees found in the permitting refugees to obtain LPR status,

Convention. speaks only of refugees who qualify being

“regarded as lawfully admitted to the

Title 8, United States Code Section United States for permanent residence

1101(a)(42)(A), defines a “refugee” as [after one year],” id. § 1159(a)(2)

(emphasis added), and does not explicitly

any person who is outside provide for the termination of refugee

any country of such person’s status upon one being “regarded as” a

nationality or, in the case of lawful permanent resident. The absence of

a p e r s o n h a v i n g no language terminating refugee status in §

6

1159(a), Smriko contends, is consistent refugee status of any alien . . . pursuant to

with the definition of refugee found in § such regulations as the Attorney General

1101(a)(42)(A), which does not indicate may prescribe if the Attorney General

any particular time when one ceases to be determines that the alien was not in fact a

a refugee. Thus, Smriko argues, contrary refugee . . . at the time of the alien’s

to the IJ’s suggestion, becoming an LPR admission.” Id. The implementing

under the text of the statute provides only regulations for that section further require

additional benefits for those with refugee that the refugee be given “notice in

status and does not terminate refugee writing” of the Government’s intent to

status, consistent with Congress’s intent to “terminate the alien’s refugee status,”

implement the Protocol, which would along with 30 days in which to prepare

require Smriko to maintain refugee status evidence to be presented at a hearing to

until achieving protection equivalent to show cause “why the alien’s refugee status

that of a United States national. should not be terminated.” 8 C.F.R. §

207.9. Furthermore, the regulations

Other immigration law, Smriko indicate that “[u]pon termination of

suggests, also contemplates refugee status refugee status[] the district director shall

persisting after lawful permanent resident process the alien under [the INA’s

status is obtained. While, as discussed provisions for removal].” Id. Thus,

above, a refugee may be “regarded as” a Smriko argues, if the Government wishes

lawful permanent resident after one year, to seek his removal under the INA, the

see 8 U.S.C. § 1159(a)(1), 8 C.F.R. § statute and its implementing regulations

207.7 allows the family members of a provide an explicit process for first

“refugee,” under some circumstances, to removing his refugee status–a procedure

obtain derivative refugee status if they not followed here–and then processing him

apply within two years of the principal for removal. Had Congress sought to

refugee’s admission, thereby utilizing the remove refugee status for aliens who

principle alien’s refugee status even after become lawful permanent residents under

he or she received LPR status. § 1159(a)(1), it could have explicitly

provided for removing that status as it did

Moreover, Congress and the in § 1157(c)(4). 4

Department of H omeland Secu rity

(through its implementing regulations)

have explicitly provided for a means of 4

Smriko also urges that his

removing refugee status, consistent with

interpretation is supported by the BIA’s

the Protocol and apart from the IJ’s

decision in Matter of Medrano, 20 I. & N.

suggestion that refugee status is

Dec. 216 (BIA 1990). There, an alien had

“implicitly” forfeited upon becoming an

been granted lawful temporary resident

LPR. Under 8 U.S.C. § 1157(c)(4), the

status through the amnesty provisions of

Attorney General may terminate “[t]he

the Immigration Reform and Control Act

7

Smriko concedes that his proposed Convention). He agrees that under the

construction of the INA would offer those Convention, “[e]very refugee has duties to

with refugee status more protection than the country in which he finds himself,

other lawful permanent residents, but which require in particular that he conform

argues that this was Congress’s intent in to its laws and regulations,” Convention,

i m pl em e nting the P roto c o l ( a nd Art. II, but notes that the violation of any

criminal law is not, in and of itself,

grounds for terminating refugee status

under that agreement. While he is liable

of 1986, see 8 U.S.C. § 1255a, and then

for violating criminal laws in the same

was convicted of a crime that would

manner as a United States citizen would

ordinarily subject an alien to deportation.

be, he argues that Congress, in

At the time of the BIA’s decision in

implementing the Protocol, intentionally

Medrano, the implementing regulations

limited the grounds for cancelling refugee

providing for cancellation of temporary

status because it intended to give refugees

resident status under § 1255a, not unlike 8

heightened protection (as compared to

C.F.R. § 207.9 and its requirements for

other aliens) in light of the traumatic

removing refugee status, allowed for

conditions they have fled. Because he

cancellation where the Government

views § 1159(a)(2), allowing for those

provided notice of its intent to remove and

with refugee status to become “regarded

an opportunity to offer evidence in

as” lawful permanent residents, as not

opposition, 8 C.F.R. § 245a.2(u)(2). An IJ

terminating his refugee status, he suggests

determined that the Government would

that the Government could only have

have to terminate Medrano’s temporary

cancelled his refugee status under §

resident status through § 245a.2(u)(2) prior

1157(c)(4). In light of the Government not

to initiating deportation proceedings based

even having attempted to cancel his

upon his having committed a crime that

refugee status under § 1157(c)(4) or

would ordinarily otherwise subject an alien

having followed the procedure outlined

to deportation, and the BIA affirmed.

under 8 C.F.R. § 207.9 for doing so,

Citing Medrano, Smriko argues that the

Smriko argues that he has been improperly

procedures set forth at 8 C.F.R. § 207.9 for

subjected to removal proceedings.

removing refugee status must also be met

here before removal proceedings can be

B. The Government’s Response

initiated against him. Medrano, however,

is not particularly helpful here, as in front

The Government concedes that

of the BIA the Government there

“[t]he statutory definition of ‘refugee’ [in

“removed its opposition to the decision of

8 U.S.C. § 1101(a)(42)(A)] speaks in the

the immigration judge,” Medrano, 20 I. &

present tense [and] imposes no temporal

N. Dec. at 218, and the BIA accordingly

l i m it a t io n o n r e f u g e e s t a t u s . ”

saw “no reason to disturb the immigration

Respondent’s Brief at 15. Moreover, the

judge’s decision.” Id. at 218-19.

8

Government does not appear to dispute permanent resident status pursuant to §

that nothing in the INA expressly 1159(a)(2).

terminates refugee status once a refugee

achieves LPR status pursuant to 8 U.S.C. First, the government looks to the

§ 1159(a)(2). Instead, the government conference report from the Refugee Act of

argues that 1980. The conference report indicates that

the Senate’s bill originally provided that,

[i]n practice, however, all absent emergency situations, refugees

sources of domestic law, would be admitted as lawful permanent

including the INA and its residents (with there simply being no such

support ing regu latio ns, thing as refugee status), while an

administrative and judicial amendment in the House provided for “all

case law, and the practices refugees entering the United States [to] be

of the INS, the Department admitted conditionally as ‘refugees’ with

of Homeland Security, and retroactive adjustment of status to lawful

the Executive Office for permanent residents after two years.” H.R.

Immigration Review, reason Conf. Rep. No. 96-781, at 21 (1980),

that when a “refugee” reprinted in 1980 U.S.C.C.A.N. 160, 162.

adjusts to “lawful permanent The Committee of Conference adopted the

resident” . . . status, he no House Amendment, but “with adjustment

longer is considered to be in of status permitted after a period of one

“ r e f u g e e ” s t a tu s f o r year.” Id. The Government also looks to

purposes of United States a statement by Senator Edward Kennedy,

immigration and nationality the Senate bill’s chief sponsor, who

law. Rather, he either indicated that

maintains his LPR status

and may subseq uentl y the Conferees compromised

n a t u r a li z e to U .S . on the House version and

citizenship, or possibly, may established a new ‘refugee’

lose his LPR status and admission status–different

become a deportable alien from either the present

under [8 U.S.C. § 1227]. ‘ c onditional entry’ or

‘parolee’ status. This new

Respondent’s Brief at 15-16 (emphasis status will end after only

added). The Government then presents one year–rather than two

legislative history, INA provisions, ye ars–after w hich th e

implementing regulations, and two BIA refugee can adjust to

decisions that, it suggests, implicitly permanent resident status.

contemplate the termination of refugee This one year ‘refugee’

status once an alien receives lawful status would also be counted

9

towards the five-year period Finally, the Government looks to

required for naturalization. two BIA decisions, neither of which

addresses Smriko’s argument that the

126 Cong. Rec. S3756-57 (daily ed. Feb. INA’s protections for refugees, as drafted

26, 1980). Thus, the Government argues by Congress in implementing the Protocol,

that “refugee status” was intended to be a co-exist with lawful permanent resident

conditional status, and was intended to end status and must be terminated prior to the

after one year. initiation of removal proceedings. One

decision briefly suggests, without analysis,

The Government further notes that that once a refugee adjusts to LPR status,

8 U.S.C. § 1159(a) calls for, at the end of the “former” status as a refugee does “not

one year, a refugee who has not yet provide a basis for terminating [removal]

“acquired” lawful permanent resident proceedings.” In re Bahta, 22 I. & N. Dec.

status to be “returned to the custody of the 1381, n.2 (BIA 2000). The other suggests

Service for inspection and examination,” that one in Smriko’s position–i.e., one who

id. § 1159(a), and processed “in has not had his refugee status terminated

accordance with” the removal provisions (based on a determination that he was not

of the INA unless the alien is adjudged a refugee at the time of his admission)

“admissible” at that time and can therefore under INA § 207, 8 U.S.C. § 1157, and

be “regarded as lawfully admitted,” id. § who has not been determined to be

1159(a)(2). Because § 1159(a) does not inadmissible following his examination by

reference any special procedure for an immigration officer under INA §

terminating refugee status before removing 209(a)(1), 8 U.S.C. § 1159(a)(1),–is not

one not admissible at the end of the one properly placed in exclusion proceedings.

year period, the Government argues that Matter of Garcia, 19 I. & N. Dec. 407

this provision supports the view that (BIA 1986). Neither decision addresses

refugee status is conditional and what the government terms to be Smriko’s

disappears for one who is admissible and “novel,” Respondent’s Brief at 9,

does obtain LPR status.5 argument–that the INA’s provisions

pertaining to “refugee status,” read in light

5

The Government also suggests that no

provision of the INA “confer[s] any aliens”)). Contrary to the Government’s

authority on an immigration judge to suggestion, however, Smriko only argues

engage in the sort of termination process that an IJ cannot conduct removal

proposed by Smriko before adjudicating a proceedings until his refugee status has

lawful permanent resident’s removability been terminated in accordance with the

from the United States.” Respondent’s process set forth at 8 C.F.R. § 207.9, and

Brief at 17-18 (citing 8 U.S.C. § 1227(a) does not argue that IJ’s must engage in any

(setting forth the classes of “deportable special “termination process.”

10

of Congress’s intent to implement the issue,” our role is to determine “whether

Protocol, provide extremely limited the agency’s answer is based on a

grounds for terminating his refugee status, permissible construction of the statute.”

none of which was met here. Id. (internal quotation marks omitted).

C. Discussion Although the INA is ambiguous

with respect to Smriko’s challenge and

“The first step in interpreting a Smriko has marshaled at least some

statute is to determine whether the legislative history in support of his

language at issue has a plain and proposed construction, we are without, in

unambiguous meaning with regard to the this case, an “agency answer” to examine

particular dispute in the case.” Ki Se Lee and potentially defer to. The BIA

v. Ashcroft, 368 F.3d 218, 222 (3d Cir. answered Smriko’s “novel” challenge by

2004) (internal quotation marks omitted). assigning his case to a single member who

At issue here is whether Smriko, in affirmed without opinion the decision of

becoming “regarded as lawfully admitted the IJ, whose decision therefore became

to the United States for permanent the final agency determination pursuant to

residence,” 8 U.S.C. § 1159(a)(2), lost his the agency’s affirmance without opinion

refugee status. As we have indicated, § regula tions, see 8 C .F.R . §

1159(a)(2) does not unambiguously 1003.1(e)(4)(ii). Pursuant to those

describe what happens to an alien’s regulations, “[s]uch an order approves the

refugee status once he or she becomes result reached in the decision below[, but]

“regarded as” a lawful permanent resident. does not necessarily imply approval of all

Of course, “if the intent of Congress is of the reasoning of that decision,” id.

clear . . . the court, as well as the agency,

must give effect to the unambiguously In its entirety, the IJ’s response to

e x p r e s s ed i n t e n t o f C o n g r e s s . ” Smriko’s proposed statutory construction

Coraggioso v. Ashcroft, 355 F.3d 730, 733 consisted of the following:

(3d Cir. 2004) (quoting Chevron, U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 [W]hile the motion for

U.S. 837, 842-43 (1984)) (internal termination would have

quotation marks omitted). We are left been granted had th e

here, however, with Congressional intent respondent remained a

that is, at least to some degree, in conflict: refugee, the respondent

the goal of implementing the Protocol unfortunately in this case

versus, potentially, the desire to create a had adjusted his status to

“conditional” status for a single year. In that of a lawful permanent

such situations, where there is conflicting resident, pursuant to Section

legislative history and “the statute is silent 209 of the [INA, 8 U.S.C. §

or ambiguous with respect to the specific 1159]. The respondent

11

voluntarily chose to adjust that where an “IJ offer[s] no reasoning and

his status and certainly there cite[s] no authority . . . we have no basis

are benefits and rewards in on which to conclude that the IJ’s reading

acquiring the status of a and application of [a statute is]

lawful permanent resident ‘reasonable’ and therefore entitled to

and respondent has not deference under Chevron[].” Berishaj v.

provided any precedent Ashcroft, 378 F.3d 314, 327 (3d Cir.

decisions or any other legal 2004). As in Berishaj, the IJ here offered

basis for the proposition that no analysis of the relevant statutory

a lawful permanent resident provisions or authority to which we may

also retains the status of a defer. Thus, we are left to review an IJ’s

refugee, pursuant to Section

207 [of the INA, 8 U.S.C. §

1157].

be the case.

Where, as here, the BIA has

IJ’s Op. at 2. Even assuming arguendo

affirmed without opinion the decision of

that an IJ’s decision affirmed without

the IJ, under 8 C.F.R. § 1003.1(e)(4)(ii), its

opinion pursuant to the streamlining

affirmance “approves the result reached in

regulations would otherwise be entitled to

the decision below[, but] does not

Chevron deference,6 we recently explained

necessarily imply approval of all of the

reasoning of that decision,” id. As

Aguirre-Aguirre determined that the BIA’s

6

The Supreme Court has determined case-by-case decision-making should be

that “the BIA should be accorded Chevron accorded Chevron deference, it would

deference as it gives ambiguous statutory seem to be, at the very least, an open

terms concrete meaning through a process question as to whether an IJ’s decision

o f c a s e - b y - c a s e a d j u d ic a t io n .” affirmed through the streamlining process

Aguirre-Aguirre, 526 U.S. at 425 would be entitled to Chevron deference.

(emphasis added; internal quotation marks Although the BIA has directed us to

omitted). Citing Aguirre-Aguirre, we review the IJ’s opinion in streamlined

recently stated in a dictum that “the BIA’s cases, deferring to the reasoning of an IJ

(and hence the IJ’s) interpretation of the from which the BIA would be free to

INA is subject to established principles of depart in other cases would seem highly

deference.” Coraggioso, 355 F.3d at 733 problematic. We need not resolve this

(emphasis added). Aguirre-Aguirre, issue here, however, because the IJ, as

however, did not determine that the explained above, offered no analysis or

opinion of an IJ, when affirmed without precedent to which we could defer. We

opinion by the BIA’s streamlining process, ultimately decide to remand to the BIA

is entitled to Chevron deference, and it rather than the IJ because that course is

does not necessary follow that such would required by the regulations.

12

opinion that does not analyze the statutory the number of cases having increased

interpretation issue at hand, with a single exponentially in a little over a decade.”

BIA member having issued an affirmance Dia, 353 F.3d at 235. The portion of those

without opinion that precluded the BIA regulations describing the affirmance

from providing its interpretation of the without opinion process employed here

statutory provision at issue, purportedly provides that:

pursuant to the agency’s “streamlining

regulations,” which we will describe in (i) The Board member to

detail below. whom a case is assigned

shall affirm the decision of

Smriko raises an additional the Service or the

challenge, however, to the process by immigration judge, without

which his case arrived at the Court of opinion, if the Board

Appeals without having such an agency member determines that the

answer. While he recognizes that the BIA result reached in the

acted within its authority to promulgate the decision under review was

streamlining regulations and did not, per correct; that any errors in

se, violate his Due Process rights by doing the decision under review

so, see Dia, 353 F.3d at 236-43, he argues were harmless or

that the BIA erred in its application of the nonmaterial; and that

streamlining regulations to his case. See

Berishaj, 378 F.3d at 331 (“Though the en (A) The

banc Court in Dia approved the issues on

streamlining regulations over a statutory appeal are

and Constitutional challenge, it does not squarely

follow that the regulations are not subject controlled by

to misuse and even abuse.”). He suggests e x istin g

that we may review the single Board Board or

member’s application of the streamlining federal court

regulations, and that the Board member precedent and

erred here because, under those d o n o t

regulations, his case could not have involve the

possibly qualified for streamlining. application of

precedent to a

V. novel factual

situation; or

As we recently explained in Dia,

“[t]he Attorney General promulgated the (B) The

streamlining regulations in 1999 when the factual and

Board was faced with a crushing caseload, legal issues

13

raised on that, under any standard of review, the

appeal are not single BIA member assigned to his case

so substantial erred in subjecting it to the affirmance

that the case without opinion process described above

warrants the because the IJ’s decision was not correct,

issuance of a id. § 1003.1(e)(4)(i), her errors were not

w r i t t e n harmless, id., his case was not “squarely

opinion in the controlled” by existing Board or federal

case. court precedent, id. § 1003.1(e)(4)(i)(A),

and his case did not raise issues so

(ii) If the Board member insubstantial that a written opinion would

determines that the decision be unwarranted, id. § 1003.1(e)(4)(i)(B).

should be affirmed without

opinion, the Board shall The Government counters that

issue an order that reads as application of the above standards entails

follows: “The Board a “complicated balancing of a number of

affirms, without opinion, the factors” only comprehensible to the single

result of the decision below. Board member, and contends that it is

The decision below is, simply “not possible to devise an adequate

therefore, the final agency standard of review” for determining

determination. See 8 CFR whether there is precedent that “squarely

1003.1(e)(4).” An order controls” the present case and whether the

affirming without opinion, issues raised are “not so substantial,”

issued under authority of especially so because the regulations

this provision, shall not require the single Board member issuing a

include further explanation streamlining order to provide no

or reasoning. Such an order reasoning, see id. § 1003.1(e)(4)(ii). We

approves the result reached first address the Administrative Procedure

in the decision below; it Act’s (“APA”) “basic presumption of

does not necessarily imply judicial review. . . .” Lincoln v. Vigil, 508

approval of all of the U.S. 182, 190 (1993); see Calle-Vujiles v.

reasoning of that decision, Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003)

but does signify the Board’s (“there is a strong presumption that

conclusion that any errors in Congress intends judicial review of

the decision o f the administrative action”). We then turn to

immigration judge or the the limited category of administrative

Service were harmless or decisions committed to agency discretion,

nonmaterial. and determine whether a single Board

member’s application of the streamlining

8 C.F.R. § 1003.1(e)(4). Smriko argues regulations is such a decision.

14

A. The Availability of Judicial Review Smriko contends that the single

Board member charged with applying the

Under the APA, any “person streamlining regulations clearly failed to

suffering legal wrong because of agency follow those regulations by subjecting his

action, or adversely affected or aggrieved case to the affirmance without opinion

by agency action within the meaning of a process without the regulatory criteria for

relevant statute, is entitled to judicial doing so having been met. He insists that

review.” 5 U.S.C. § 702. Decisions of the this erroneous application of the

BIA are agency actions within the meaning regulations is judicially reviewable under

of the APA. 5 U.S.C. § 701(b)(1). The the APA as interpreted by the Supreme

only exceptions to this general rule are Court in I.N.S. v. Yueh-Shaio Yang, 519

situations in which “(1) statutes preclude U.S. 26 (1996). The Court there held in

judicial review; or (2) agency action is the context of a review of BIA action:

committed to agency discretion by law.” 5

U.S.C. § 701(a). Where the governing Though the agency’s

statute provides for “special statutory discretion is unfettered at

review ,” as does § 242 of the INA, 8 the outset, if it announces

U.S.C. § 1252, that is the form that the and follows–by rule or by

required judicial review will take. 5 settled course of

U.S.C. § 703. Under the INA, in a d j u d i ca tion–a ge ne r a l

reviewing a final order of removal policy by which its exercise

pursuant to 8 U.S.C. § 1252, the Court of of discretion w ill be

Appeals may “review . . . all questions of governed, an irrational

law and fact, including interpretation and departure from that policy

application of constitutional and statutory (as opposed to an avowed

provisions, arising from any action taken alteration of it) could

or proceeding brought to remove an alien constitute action that must

from the United States. . . .” Id. § be overturned as “arbitrary,

1252(b)(9) (emphasis added). Similarly, capricious, [or] an abuse of

Section 704 of the APA provides: “A discretion” with in the

preliminary, procedural, or intermediate meaning of the

agency action or ruling not directly Administrative Procedure

reviewable is subject to review on the Act, 5 U.S.C. § 706(2)(A).

review of the final agency action.” 5

U.S.C. § 704. Thus, our review of a final Yueh-Shaio Yang, 519 U.S. at 32.

agency action, generally speaking,

encompasses all of a petitioner’s Based on Yueh-Shaio Yang and the

contentions of legal error by the agency at APA, it seems clear that we have

any stage of the agency’s proceedings. jurisdiction to review the here challenged

application of the streamlining regulations

15

so long as the INA does not preclude that Given that the INA clearly does not

judicial review and the issues so presented preclude review, we now turn to whether

are not committed to agency discretion. 7 the relevant issues are committed to

agency discretion by law.

7 B. Actions Committed to an Agency’s

In Marcello v. Bonds, 349 U.S. 302,

Discretion

309-10 (1955), the Supreme Court

determined that the hearing provisions of

Section “701(a)(2) [of the APA]

the APA do not apply to agency hearings

makes it clear that ‘review is not to be had’

conducted pursuant to the INA. See

in those rare circumstances where the

Ardestani v. I.N.S., 502 U.S. 129, 133-34

relevant [law] ‘is drawn so that a court

(1991) (“[In Marcello, we] held that the

would have no meaningful standard

INA expressly supersedes the hearing

against which to judge the agency’s

provisions of the APA in light of the

exercise of discretion.’” Lincoln, 508 U.S.

background of the 1952 immigration

at 190-91 (quoting Heckler v. Chaney, 470

legislation, its laborious adaptation of the

U.S. 821, 830 (1985)). The Government

[APA] to the deportation process, the

insists that the situation before us is one of

specific points at which deviations from

those “rare circumstances,” likening an

the [APA] were made, the recognition in

individual Board member’s decision on

the legislative history of this adaptive

whether to direct that a written merits

technique and of the particular deviations,

decision on an alien’s appeal be issued to

and the direction in the statute that the

the role of an agency accorded absolute

methods therein prescribed shall be the

discretion in determining whether to

sole and exclusive procedure for

institute enforcement proceedings, see

deportation proceedings.”) (internal

Heckler, 470 U.S. at 831 (“an agency’s

quotation marks omitted). As the

decision not to prosecute or enforce,

government tac itly a cknow ledges,

whether through civil or criminal process,

however, “[a]lthough the detailed hearing

is a decision generally committed to an

procedures specified by the APA do not

agency’s absolute discretion”). Heckler

apply to hearings under the [INA], see

involved the Food and Dru g

Marcello[], the judicial review provisions

Administration’s (“FDA”) decision to

do, see Shaughnessy v. Pedreiro, 349 U.S.

refrain from instituting enforcement

48, 75 S.Ct. 591, 99 L.Ed. 868 (1955).”

proceedings with respect to drugs used in

I.N.S. v. Doherty, 502 U.S. 314, 330

administering lethal injections. The

(1992) (Scalia, J., concurring and

Supreme Court determined that there was

dissenting). As Yueh-Shaio Yang holds,

“no law to apply” in the Federal Food,

the judicial review provisions of the APA,

5 U.S.C. § 706(2)(A), apply to decisions of

the BIA on issues not committed to agency

discretion. Yueh-Shaio Yang, 519 U.S. at 32.

16

Drug, and Cosmetic Act against which a These criteria are clearly intended

court could review the FDA’s decision not to require the single BIA member to

to bring enforcement proceedings. Id. at determine whether the correct outcome

830-31. was reached and, if so, whether a Board

opinion would have significant value in

Under the streamlining regulations, the context of an appeal of the matter or in

in contrast, in order to affirm without an the context of other matters yet to be

opinion, several specific criteria must be adjudicated. We agree with the Tenth

met: (1) the “result reached in the decision Circuit Court of Appeals that “they have

under review [must be] correct;” (2) any nothing to do with the BIA’s caseload or

“errors in the decision under review [must other internal circumstances.” Batalova v.

be] harmless or nonmaterial; and (3) “(A) Ashcroft, 355 F.3d 1246, 1253 (10th Cir.

[t]he issues on appeal [must be] squarely 2004); see also Denko v. I.N.S., 351 F.3d

controlled by existing Board or federal 717, 732 (6th Cir. 2003) (“the size of the

court precedent and . . . not involve the BIA’s caseload–a factor which the Board

application of precedent to a novel factual may be better equipped to assess–has no

situation” or “(B) [t]he factual and legal relevance in deciding which cases are

issues raised on appeal [must be] not so appropriate for summary affirmance”).

substantial that the case warrants the Rather, these criteria present “the kinds of

issuance of a written opinion in the case.” issues [courts] routinely consider in

8 C.F.R. § 1003.1(e)(4)(i). All three of reviewing cases,” Batalova, 355 F.3d at

these criteria must be met in order for a 1253, and provide amply sufficient “law”

case properly to be streamlined.8 for courts to apply. The fact that they may

require the exercise of some discretion on

the part of the single BIA member that

8 may be deserving of some deference is, of

Heckler also noted that at issue there

course, not relevant; the APA expressly

was the reviewability of an agency’s

authorizes review of the exercise of

refusal to exercise its powers, as opposed

discretion for abuse.

to where, as here, an agency has exercised

its coercive power over an individual. See

The government’s insistence that §

Heckler, 470 U.S. at 832 (“[W]e note that

1003.1(e)(4)(i) requires a single BIA

when an agency refuses to act it generally

member to assess the availability of

does not exercise its coercive power over

agency resources is based upon subsection

an individual’s liberty or property rights,

B and its reference to whether the “issues

and thus does not infringe upon areas that

raised upon appeal are not so substantial

courts often are called upon to protect.

that the case warrants the issuance of a

Similarly, when an agency does act to

enforce, that action itself provides a focus

for judicial review, inasmuch as the

agency must have exercised its power in some manner.”) (emphasis in original).

17

written opinion,” id. § 1003.1(e)(4)(i)(B). will be assigned to a three member panel

However, this language focuses upon the for disposition. If the case is more

lack of importance of the issues, not significant than an (e)(4) case and less

backlog and the availability of resources to significant than an (e)(6) case, the single

produce an opinion. Moreover, the BIA member will decide the merits of the

government’s argument ignores the fact appeal by himself and issue “a brief order,

that § 1003.1(e)(4)(i) is only one part of an affirming, modifying or remanding” under

overall case management system that is § 1003.1(e)(5). In short, the regulations do

based solely on the correctness of the not call upon single BIA members to

result and the institutional value that an evaluate the resources available at a

opinion would have. Under subsection particular time. Rather, the regulations

1003.1(e), a single BIA member who is themselves allocate whatever decision-

assigned a case “shall” do one of three making resources the agency has, calling

things. If the result is correct and the upon single BIA members to follow the

institutional value of an opinion would be criteria contained in the regulations for

so low that the criteria of (e)(4) are met, he allocating those resources.

must affirm without opinion. On the other

hand, if the case presents one of the Nor are we impressed with the

c i r c u m s ta n c e s e n u m e r a t e d in § gove r n m e nt’ s sugg estion th at §

1003.1(e)(6), all relating to the

institutional value of an opinion,9 the case

immigration judge or the

Service that is not in

9

Subsection (e)(6) provides: conformity with the law or

Panel Decisions. Cases may with applicable precedents;

only be assigned for review (iv) The need to

by a three-member panel if r e s o lv e a c a s e or

the case presents one of c o n t r o v e r s y of m ajo r

these circumstances: national import;

(i) The need to settle (v) The need to

inconsistencies among the review a clearly erroneous

r u li n g s o f di f f e r en t factual determination by an

immigration judges; immigration judge; or

(ii) The need to (vi) The need to

establis h a p r e c e d e nt reverse the decision of an

construing the meaning of immigration judge or the

l a w s , r e g u l a t i o n s, o r Service, other than a

procedures; reversal under §

(iii) The need to 1003.1(e)(5).

review a decision by an 8 C.F.R. § 1003.1(e)(6).

18

1003.1(e)(4)(ii) precludes a single BIA standard against which to judge the

member from explaining his or her agency’s exercise of discretion.” Heckler,

decision to streamline and that this 470 U.S. at 830.10

somehow deprives a reviewing court of

law to apply. First, reading this section in

context, we understand it to preclude any 10

See Haoud v. Ashcroft, 350 F.3d 201,

explanation of the member’s reason for

206 (1st Cir. 2003) (“the Board’s own

affirming the IJ’s decision so that the IJ’s

regulation provides more than enough

decision will stand alone as the final

‘law’ by which a court could review the

agency decision. We do not read it as

Board’s decision to streamline”); Denko,

precluding comment regarding the

351 F.3d 717 at 731 (“this argument for

decision to streamline, and there may be

committing this decision [to streamline] to

rare situations in which the member might

the agency’s discretion is doubtful because

find it helpful to file brief comments on

there are judicially manageable standards

this subject. More importantly, however,

available to a reviewing court”); Chen v.

the law to be applied is provided by the

Ashcroft, 378 F.3d 1081, 1086-87 (9th Cir.

criteria of the regulations, and it will be the

2004) (review ing “w hethe r either

rare case, indeed, where the reviewing

subsection” of the streamlining regulations

court, having received the administrative

applied to alien’s administrative appeal,

record and the briefs of the parties, will

a nd r e ma nding bec a use “ ne ith er

have any difficulty, without more, reaching

subsection (A) nor subsection (B) of the

a decision as to whether the member was

streamlining regulation permit[ted]

so wide of the mark in applying those

summary affirmance” where alien raised

criteria that his action can be characterized

“a novel legal and factual issue”);

as arbitrary and capricious.

Batalova, 355 F.3d at 1252-53 (10th Cir.

2004) (criteria in streamlining regulations

We hold that the issues addressed

address “the kinds of issues we routinely

by single BIA members under §

consider in reviewing cases, and they have

1003.1(e)(4)(i) of the streamlining

nothing to do with the BIA’s caseload or

regulations are not committed to agency

other internal circumstances”). But see

discretion and that the resolutions of those

Ngure v. Ashcroft, 367 F.3d 975, 987 (8th

issues are judicially reviewable.

Cir. 2004) (concluding that “[l]ike other

decisions committed to agency discretion

C. The Approach of Other Courts

by law, th e BIA ’s stream lining

determination involves a complicated

All but one of the other Circuit

balancing of a number of factors which are

Courts that have addressed the issue have

peculiarly within its expertise, including

agreed or suggested that the affirmance

the size of the BIA’s caseload and the

without opinion regulations contain

limited resources available to the BIA”)

sufficient “law” to provide a “meaningful

(internal quotation marks and citations

19

The Eighth Circuit in Ngure parted In support of this view, Ngure

company from the majority approach quoted from the D.C. Circuit’s decision in

largely based upon its interpretation of the Pad ula . The r e , f ac e d w ith a

“not substantial” third factor found in the pronouncement from the Director of the

affirmance without opinion regulations. Federal Bureau of Investigation (“FBI”)

Ngure determined that “[w]hether a regarding the FBI’s hiring policy with

particular case ‘warrants the issuance of a respect to homosexuals and other letters

written opinion’ is necessarily a function written by FBI personnel to law schools

of the BIA’s limited resources at a regarding that policy, the D.C. Circuit set

particular point in time, and the views of forth the above maxim that these types of

members of the BIA as to whether those “agency statements” would only be

limited resources should be dedicated to “transformed into a binding norm if so

writing an opinion in a given case.” intended by the agency.” Padula, 822

Ngure, 367 F.3d at 986. As we have F.2d at 100. While Padula understandably

indicated, we respectfully disagree with looked to agency intent only to determine

this view. whether an informal statement by an

agency constituted a “binding norm” such

Ngure also gave considerable that departure from that statement could

weight to the legal proposition that an “an amount to arbitrary and capricious action,

agency pronouncement is transformed into Ngure extended its use of agency intent to

a binding norm if so intended by the also look at whether an agency intended

agency, and agency intent, in turn, is for a formal regulation to be binding upon

ascertained by an examination of the its officers. This use of agency “intent” in

statement’s language, the context, and any promulgating regulations would seem to

available extrinsic evidence.” Ngure, 367 turn on its head the “basic presumption of

F.3d at 982 (quoting Padula v. Webster, judicial review” embodied in the APA,

822 F.2d 97, 100 (D.C. Cir. 1987)) Lincoln, 508 U .S. at 190, the maxim that

(internal quotation marks, citations, and agency regulations “have the force of

alterations omitted; emphasis added). That law,” Marshall v. Lansing, 839 F.2d 933,

is, Ngure suggested that whether an 943 (3d Cir. 1988), and the requirement

agency intended for its own compliance that “regulations validly prescribed by a

with its regulation to be judicially government administrator are binding

reviewable is relevant to whether an upon him as well as the citizen,” Service v.

agency’s action in applying that regulation Dulles, 354 U.S. 363, 372 (1957). See

is committed to agency discretion under Vitarelli v. Seaton, 359 U.S. 535, 539-40

the APA. (1959) (applying Dulles); see also Webster

v. Doe, 486 U.S. 592, 602 n.7 (1988)

(“[an] Agency’s failure to follow its own

regulations can be challenged under the

APA”). If we routinely begin to look to an

omitted).

20

agency’s intent (with respect to whether its timely dispositions, but do not affect the

own compliance with its regulations validity of any decision issued by the

should be subject to judicial review) in Board and do not, and shall not be

promulgating regulations, as Ngure would interpreted to, create any substantive or

have us do, we may well find that agencies procedural rights enforceable before any

never desire judicial review, and would immigration judge or the Board, or in any

rather be left unchecked in the exercise of court of law or equity.” 8 C.F.R. §

their powers. 1003.1(e)(8)(vi) (emphasis added). Thus,

the regulations specifically contemplate

Contrary to Ngure’s suggestion, we that the Board’s compliance with

do not read American Farm Lines v. Black provisions establishing time limits for the

Ball Freight Service, 397 U.S. 532 (1970), adjudication of appeals will not be subject

as abandoning the Supreme Court’s long- to judicial review. No similar statement is

standing requirement–evidenced in Dulles, made with respect to an individual Board

Vitarelli, and Webster–that an agency member’s application of the affirmance

comply with its own regulations. We note, without opinion regulations under 8 C.F.R.

however, that even assuming arguendo § 1003.1(e)(4), thus undermining the

that courts should look to an agency’s notion that the agency did not “intend” for

“intent” to allow for judicial review in judicial review of the affirmance without

promulgating a regulation, it is doubtful opinion procedure.

that the agency here sought to preclude a

Board member’s application of the D. Review of the Decision To Affirm

streamlining regulations from judicial Without Opinion

review. A careful review of the

streamlining regulations indicates that they Having concluded that the decision

specifically contemplate Board members to streamline is judicially reviewable, the

being governed by the ag en cy’s correct disposition of the merits of the

regulations. See 8 C.F.R. § 1003.1(d)(1)(i) petition to review is clear. The issue

(“The Board shall be governed by the Smriko presents is not “squarely controlled

provisions and limitations prescribed by by existing Board or federal court

applic able law , regulations, a nd precedent.” Nor, we conclude, can that

procedures. . . .”). The regulations then issue be disregarded as legall y

indicate that with respect to, for example, insubstantial. As the Government

one aspect of the case management system acknow ledges, “Smirko’s [proposed

involving the time limits within which a statutory constructions], if accepted as a

Board member is expected to adjudicate an correct interpretation of the statutory

administrative appeal, “[t]he provisions [of scheme, could upset final removal orders

the regulations] establishing time limits for that have been entered against thousands

the adjudication of appeals reflect an of criminal aliens . . . ,” as well as affect

internal management directive in favor of the outcome of thousands of proceedings

21

yet to come. Given this fact, together with of substantial importance. It is foreseeable

the fact that Smriko’s argument is both that there will be a number of situations

plausible and not directly contradicted by like the one before us in which an arbitrary

statutory text, regulations, or relevant and capricious decision to streamline will

precedent, we have no choice but to hold the potential for distorting the judicial

conclude that this decision to streamline review that both the regulations and

was arbitrary and capricious. Congress contemplated. When that is the

case, a remand for further BIA

VI. proceedings is appropriate.

In many situations where a petition In Haoud, for example, the First

for review challenges a streamlining Circuit granted a petition for review

decision, that decision will have no because the affirmance without opinion

material impact on a court’s exercise of its process had been used “to deny [the

judicial review function. In most, it will Court’s] legitimate review power [because

be readily apparent that the decision is not the Court was] left without a proper basis

arbitrary or capricious. In many, the to . . . evaluate the Board’s own critical

reviewing court may simply choose to analysis,” Haoud, 350 F.3d at 205. Haoud

address the merits of the IJ’s decision had presented to the Board a recent BIA

without resolving the procedu ral case that was seemingly indistinguishable

challenge.11 Nevertheless, we believe the from his own wherein the IJ had reached a

decision we here make on reviewability is contrary result, yet the Board affirmed the

IJ’s determination in his case without

opinion. The First Circuit remanded

11 because the affirmance without opinion

The Seventh Circuit Court of Appeals

prevented the BIA from “fully explain[ing

has suggested, correctly it would seem,

why it] reasonably depart[ed] from its own

that, with respect to many cases that are

precedent,” id. at 207, in violation of the

improperly streamlined, “it makes no

settled maxim that “[a]dministrative

practical difference whether the BIA

agencies must apply the same basic rules

properly or improperly streamlined

to all similarly situated supplicants,” id. at

review.” Georgis v. Ashcroft, 328 F.3d

207 (citation omitted).

962, 967 & n.4 (7th Cir. 2003); see also

Denko, 351 F.3d 717, 732 (6th Cir. 2003)

Similarly, the Fifth Circuit recently

(agreeing with the Seventh Circuit that

remanded a streamlined case to the BIA

“for many streamlined cases” it makes “no

where the IJ had suggested multiple

practical difference” whether the BIA

grounds for denying relief, one of which,

improperly streamlined review). If the IJ’s

if selected as the reason for affirmance by

decision is incorrect, the Court of Appeals

the BIA, would have denied an alien’s

can simply reach the merits of that

asylum application as untimely and would

decision and reverse.

22

have prevented the Court of Appeals from having provided its Chevron deference-

exercising jurisdiction. Zhu v. Ashcroft, entitled “concrete meaning” to an

___ F.3d ___, ___, 2004 WL 1854553, *5- ambiguous statute.12 The present case

*6 (5th Cir. Aug. 19, 2004). The Court demonstrates that arbitrary and capricious

determined that the BIA’s use of the application of the streamlining regulations

affirmance without opinion procedure can result in building case law that is

under such circumstances created a fashioned without the benefit of agency

“jurisdictional conundrum” in that it expertise.

prevented the Court from “knowing

whether the BIA affirmed the IJ’s decision Here, Smriko presented a plausible

on a non-reviewable basis, e.g., reading of the INA to the Board, raising a

untimeliness, or a reviewable basis, e.g., substantial and important issue of refugee

the merits of Zhu’s asylum claim.” Id. law. Despite the absence of precedent

The Court remanded so that the BIA could “squarely controlling” Smriko’s argument,

indicate whether relief was denied based Smriko’s case was erroneously affirmed

upon untimeliness (which would destroy without opinion. That error then prevented

the court’s jurisdiction under an applicable the Board from offering its expert opinion

statute) or on the merits of the asylum on the novel statutory construction issue

application (which would allow the court now before us. Rather than usurping the

to exercise jurisdiction and reach the role of the BIA and establishing a

merits of the alien’s claim). precedent that the Board’s expertise might

counsel against, we now grant the petition

Where, as here, an important for review in light of the streamlining

portion of the statutory scheme can be read error. The Board’s decision will be

to produce materially different results, vacated, and, given the “need to establish

proper application of the streamlining

regulations is essential. We are required

to “accord[] Chevron deference [to the 12

One might argue, we suppose, that the

BIA] as it gives ambiguous statutory terms

individual Board member’s decision to

‘concrete meaning through a process of

issue an affirmance without opinion was

case-by-case adjudicatio n.’”

an “implicit” rejection of Smriko’s

Aguirre-Aguirre, 526 U.S. at 425 (quoting

proposed statutory construction in favor of

Cardoza-Fonseca, 480 U.S. at 448-49). If,

another construction. However, the Board

as happened here, an individual Board

member’s decision to issue an affirmance

member arbitrarily and capriciously

without opinion, in and of itself, is not a

streamlines a case where no Board or

substitute for the kind of analysis of the

binding precedent accepts or rejects an

relevant statutes, regulations, or legislative

alien’s plausible interpretation of an

history, that would be required in order to

ambiguous statute, we are then left to

afford Chevron deference. See Berishaj,

interpret the statute without the BIA

378 F.3d at 327.

23

a precedent construing the meaning of,” 8

C.F.R. § 1003.1(e)(6)(ii), the INA in this

context, we will remand the matter for

further proceedings before a three member

panel of the Board.

SMRIKO V. ASHCROFT - NO. 03-1085

LAY, Circuit Judge, concurring.

I fully concur in Judge Stapleton’s

well-reasoned opinion. I write separately

to point out that I have participated in two

Eighth Circuit cases, i.e., Wolde v.

Ashcroft, 2004 WL 1759141 (8th Cir.

2004) (non-published), and Loulou v.

Ashcroft, 354 F.3d 706 (8th Cir. 2003),

which follow the Eighth Circuit’s opinion

of Ngure v. Ashcroft, 367 F.3d 975 (8th

Cir. 2004). In Ngure, the Eighth Circuit

has stated that the Board of Immigration

Appeals’ decision to issue an affirmance

without opinion was not subject to judicial

review. I believe that the analysis by

Judge Stapleton in the instant case is the

correct analysis and I write solely to

explain my reason for joining his opinion

rather than adhering to the opinion in

Ngure.

24