The opinion
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In re E-L-H- et al., Respondents
Decided by Board August 18, 2005
Decided by Attorney General December 1, 20041
Decided by Board January 30, 19982
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A precedent decision of the Board of Immigration Appeals applies to all proceedings
involving the same issue unless and until it is modified or overruled by the Attorney General,
the Board, Congress, or a Federal court. Matter of E-L-H-, 22 I&N Dec. 21 (BIA 1998),
reaffirmed.
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Theresa A. Repede,
Appellate Counsel
BEFORE: Board En Banc: OSUNA, Acting Vice Chairman; HOLMES, HURWITZ,
FILPPU, COLE, GRANT, MOSCATO, MILLER, HESS, and PAULEY,
Board Members.3
HOLMES, Board Member:
In Matter of E-L-H-, 22 I&N Dec. 21 (BIA 1998), we denied a motion to
reconsider by the former Immigration and Naturalization Service, now the
Department of Homeland Security (“DHS”), holding that in finding the
respondent eligible for asylum, we had appropriately relied on a Board
precedent decision that had been referred to Attorney General Reno and was
pending her review. The Commissioner of the Immigration and Naturalization
Service referred our decision in Matter of E-L-H- to the Attorney General for
review. On December 21, 2004, in Matter of E-L-H-, 23 I&N Dec. 700 (A.G.
2004), Attorney General Ashcroft vacated our decision and remanded for
further consideration in light of an intervening unpublished decision of Attorney
General Reno in Matter of A-H-, A.G. Order No. 2380-2001 (A.G. Jan. 19,
1
The Attorney General’s December 1, 2004, decision in this case was published as Matter
of E-L-H-, 23 I&N Dec. 700 (A.G. 2004).
2
The Board’s January 30, 1998, decision in this case was published as Matter of E-L-H-,
22 I&N Dec. 21 (BIA 1998).
3
Chairman Lori L. Scialabba did not participate in the decision in this case.
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2001), included as an attachment to the Attorney General’s decision in Matter
of E-L-H-, supra, at 701.4
After considering the Attorney General’s decision in Matter of A-H-, we
reaffirm our decision in Matter of E-L-H-. The issue in Matter of A-H- was
whether an unpublished Board decision could be executed pending Attorney
General review. Matter of A-H- did not address the precedential effect of a
published Board decision referred for Attorney General review, which is the
issue now before us. As discussed below, we find that under the plain language
of the regulatory provision addressing the controlling effect of Board precedent
decisions, and the recently promulgated case management regulations requiring
prompt and timely adjudication of Board decisions, a Board precedent decision
applies to all proceedings involving the same issue unless and until it is
modified or overruled by the Attorney General, the Board, Congress, or a
Federal court.
I. FACTUAL AND PROCEDURAL HISTORY
The issue in this case arose in the context of the respondent’s application for
asylum, which was based on a claim that he had been persecuted in China for
having violated the Government’s family planning restrictions on the
permissible number of children. In deportation proceedings in 1996, the
respondent testified that he and his wife married in 1975 and that after the birth
of their two children, the authorities learned of his wife’s third pregnancy and
forcibly aborted the child. The respondent and his wife were subsequently fined
for having two more children in violation of the family planning laws. When the
respondent’s wife became pregnant again, the authorities again sought to abort
the pregnancy, but she was able to evade them. The authorities forcibly
sterilized the respondent in December 1984. The respondent and his family
then left China in order to avoid further problems related to family planning.
In a decision issued on September 4, 1996, the Immigration Judge indicated
that she accepted the respondent’s account as credible but denied asylum based
on the Board’s decision in Matter of Chang, 20 I&N Dec. 38 (BIA 1989), that
the Chinese Government’s enforcement of the family planning law did not
constitute persecution within the meaning of the Act. The respondent appealed
to the Board.
On September 30, 1996, a few weeks after the Immigration Judge’s decision,
Congress amended the term “refugee” in section 101(a)(42) of the Immigration
and Naturalization Act, 8 U.S.C. 1101(a)(42) (Supp. II 1996), to include a
person who has been persecuted for resistance to a coercive population control
4
The Attorney General’s Order No. 2380-2001 in Matter of A-H- was an interim order.
The Attorney General recently issued a decision on the merits in Matter of A-H-, 23 I&N
Dec. 774 (A.G. 2005).
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program.5 On August 29, 1997, we issued a decision finding the respondent
eligible for asylum and withholding of removal under the amended definition of
a “refugee.” In so ruling, we relied, in part, on our precedent decision in Matter
of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997), which held that an alien whose spouse
was forcibly sterilized may establish past persecution on account of political
opinion within the meaning of section 101(a)(42) of the Act.6
In a motion to reconsider, the Service argued that the Board should not have
relied on Matter of C-Y-Z- because that case had been referred to the Attorney
General for review. The Service based its argument on 8 C.F.R. § 3.1(d)(2)
(1997), which provided in relevant part, that “[t]he decision of the Board shall
be final except in those cases reviewed by the Attorney General in accordance
with paragraph (h) of this section.”7
On January 30, 1998, we denied the Service’s motion to reconsider, finding
that our decision in Matter of C-Y-Z- remained controlling unless modified or
overruled by the Attorney General. In so holding, we relied on 8 C.F.R. § 3.1(g)
(1997), a provision directly addressing the effect of the Attorney General’s
review on the Board’s precedent decisions. At the time of our decision in
Matter of E-L-H-, 8 C.F.R. § 3.1(g) provided as follows:
Except as they may be modified or overruled by the Board or the Attorney
General, decisions of the Board shall be binding on all officers and employees of the
Service or Immigration Judges in the administration of the Act, and selected decisions
5
The amended definition of a “refugee” in section 101(a)(42) of the Act provides:
For purposes of determinations under this Act, a person who has been forced to
abort a pregnancy or to undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a procedure or for other resistance
to a coercive population control program, shall be deemed to have been persecuted
on account of political opinion, and a person who has a well founded fear that he or
she will be forced to undergo such a procedure or subject to persecution for such
failure, refusal, or resistance shall be deemed to have a well founded fear of
persecution on account of political opinion.
6
As the respondent had been subjected to forced sterilization, our decision of August 29,
1997, also referred to our holding in Matter of X-P-T-, 21 I&N Dec. 634 (BIA 1996), that
an applicant who has been forcibly sterilized for violating the coercive population control
policies of China has suffered past persecution and is presumed to have a well-founded fear
of future persecution. Our reliance on Matter of X-P-T-, supra, in finding the respondent
eligible for asylum was not addressed by the Service in its motion to reconsider, or in our
subsequent decision denying the motion to reconsider.
7
On October 18, 1999, 8 C.F.R. 3.1(d)(2), the regulation on finality of decisions, was
renumbered as 8 C.F.R. § 3.1(d)(3). See Executive Office for Immigration Review; Board
of Immigration Appeals: Streamlining, 64 Fed. Reg. 56,135, 56,141 (Oct. 18, 1999). This
provision was later moved to 8 C.F.R. § 1003.1(d)(6) (2004), and then to 8 C.F.R.
§ 1003.1(d)(7) in 2005. See Background and Security Investigations in Proceedings Before
Immigration Judges and the Board of Immigration Appeals, 70 Fed. Reg. 4743, 4752
(Jan. 31, 2005) (interim, effective Apr. 1, 2005) .
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designated by the Board shall serve as precedents in all proceedings involving the
same issue or issues.
(Emphasis added.) We relied on this language to find that a published Board
decision retains precedential effect unless modified or overruled by the Board
or the Attorney General. Matter of E-L-H-, 22 I&N Dec. at 22. We therefore
concluded that we had not erred in applying Matter of C-Y-Z- as controlling
authority.
In April 1998, the Service referred our decision denying reconsideration in
Matter of E-L-H- to the Attorney General for review. As indicated above, the
Attorney General, on December 21, 2004, remanded our decision for further
consideration.
On the same day that the Attorney General remanded Matter of E-L-H-, he
denied the Service’s request for review of the Board’s decision in Matter of
C-Y-Z-.8 Now that the Attorney General has declined to review Matter of
C-Y-Z-, the issue as to whether the Board properly relied on Matter of C-Y-Z-
as a precedent decision in deciding Matter of E-L-H- is moot. Although we
generally limit our review to issues affecting the outcome of the case before us,
we understand the Attorney General’s remand order in this case as a mandate
that we further consider the question whether a published Board decision retains
precedential force upon referral to the Attorney General.
II. ISSUE
The question before us is whether the legal principles established in Matter
of C-Y-Z- were applicable to other cases involving the same issue during the
period between the Service’s referral of Matter of C-Y-Z- to the Attorney
General in April 1998 and the Attorney General’s decision in December 2004
declining to review the case. Stated more broadly, the question is whether a
Board precedent decision applies to cases involving the same issue when our
precedent decision has been referred to the Attorney General for review. We
find that a published Board decision has precedential effect unless and until
modified or overruled by the Attorney General, the Board, Congress, or a
Federal court.
III. ANALYSIS
As discussed below, Matter of A-H-, supra, does not address the controlling
effect of Board precedent decisions referred to the Attorney General for
review. The long-accepted understanding based on the plain language of 8 C.F.R.
§§ 3.1(g) and (h), now at 8 C.F.R. §§ 1003.1(g) and (h) (2005), has been that a
8
The Attorney General’s decision states: “The request of the Commissioner of the
Immigration and Naturalization Service to certify for review the captioned decision of the
Board of Immigration Appeals pursuant to 8 C.F.R. § 3.1(h)(1)(iii) (2002) is denied.”
Matter of C-Y-Z-, 23 I&N Dec. 693 (A.G. 2004) (footnote omitted).
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Board precedent decision retains precedential force unless and until modified
or overruled by the Attorney General. The Federal circuit courts have uniformly
recognized the precedential effect of the Board’s decision in Matter of C-Y-Z-
following referral of that decision to the Attorney General for review. The
2002 case management regulations addressing the Board’s role in publishing
precedent decisions and setting case completion deadlines also confirm that
under 8 C.F.R. § 1003.1(g), the Board’s precedent decisions, unless otherwise
ordered by the Attorney General, continue to have precedential effect after
referral to the Attorney General for review. See Board of Immigration Appeals:
Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54,878
(Aug. 26, 2002).
A. Regulatory Framework
For over 50 years, the Attorney General has delegated to the Board the
responsibility for interpreting and applying the immigration laws and
regulations. The current regulatory framework for publishing Board precedent
decisions and referral of Board decisions to the Attorney General has been in
place since 1952, when the regulation provided, as it does today, that “[e]xcept
as they may be modified or overruled by the Board or the Attorney General, . . .
selected decisions designated by the Board shall serve as precedents in all
proceedings involving the same issue or issues.” 8 C.F.R. § 6.1(g) (1952); see
also Board of Immigration Appeals: Appeals; Reopening and Reconsideration,
17 Fed. Reg. 11,469, 11,475 (Dec. 19, 1952).9
Since we last addressed the issue presented in this case in Matter of E-L-H-
in 1998, the relevant provisions have been amended in some respects to reflect
statutory and regulatory developments. First, the Board’s responsibilities for
publishing precedent decisions and for timely managing its caseload were
clarified by regulations promulgated in 2002. Second, in 2003, the Immigration
and Naturalization Service was eliminated and its functions transferred to the
newly created Department of Homeland Security. The regulations have been
reorganized and renumbered to reflect these changes in responsibility for
interpretation and enforcement of the immigration laws. The amendments to the
relevant regulatory provisions since our 1998 decision in Matter of E-L-H- are
discussed below.
We begin with the provision directly addressing the effect of Board precedent
decisions. In 1998, 8 C.F.R. § 3.1(g) provided:
Decisions of the Board as precedents. Except as they may be modified or
overruled by the Board or the Attorney General, decisions of the Board shall be
9
The 1952 regulation addressed the referral of Board decisions to the Attorney General at
8 C.F.R. § 6.1(h), and the finality of decisions at 8 C.F.R. § 6.1(d). These provisions
correspond to those now found at 8 C.F.R. § 1003.1(h) (2005) and 8 C.F.R. § 1003.1(d)(7).
See 70 Fed. Reg. at 4752.
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binding on all officers and employees of the Service or Immigration Judges in the
administration of the Act, and selected decisions designated by the Board shall serve
as precedents in all proceedings involving the same issue or issues.
This provision was amended in 2003 to reflect the transfer of Service
responsibilities and authority to the newly created Department of Homeland
Security. Renumbered as 8 C.F.R. § 1003.1(g), this paragraph now provides:
Decisions as precedents. Except as Board decisions may be modified or overruled
by the Board or the Attorney General, decisions of the Board, and decisions of the
Attorney General, shall be binding on all officers and employees of the Department of
Homeland Security or immigration judges in the administration of the immigration laws
of the United States. By majority vote of the permanent Board members, selected
decisions of the Board rendered by a three-member panel or by the Board en banc
may be designated to serve as precedents in all proceedings involving the same issue
or issues. Selected decisions designated by the Board, decisions of the Attorney
General, and decisions of the Secretary of Homeland Security to the extent authorized
in paragraph (i) of this section, shall serve as precedents in all proceedings involving
the same issue or issues.
8 C.F.R. § 1003.1(g) (2005). The newly inserted sentence regarding selection
of Board decisions as precedents was formerly found at 8 C.F.R. § 3.1(a)(5)
(2002).
Pursuant to 8 C.F.R. § 1003.1(i), selected decisions of the Secretary of the
Department of Homeland Security may be published after approval by the
Attorney General. See also 8 C.F.R. § 103.3(c) (2005), to the same effect. The
Board, however, selects decisions for publication without the concurrence or
preapproval of the Attorney General. Compare 8 C.F.R. § 1003.1(g) with
8 C.F.R. §§ 103.3(c), 1003.1(i).
Any Board decision, published or unpublished, may be referred to the
Attorney General for review pursuant to 8 C.F.R. § 1003.1(h). This provision,
amended in 2003 to reflect the replacement of the Service by the Department
of Homeland Security, now provides:
Referral of cases to the Attorney General. (1) The Board shall refer to the
Attorney General for review of its decision all cases that:
(i) The Attorney General directs the Board to refer to him.
(ii) The Chairman or a majority of the Board believes should be referred to the
Attorney General for review.
(iii) The Secretary of Homeland Security, or specific officials of the Department of
Homeland Security designated by the Secretary with the concurrence of the Attorney
General, refers to the Attorney General for review.
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(2) In any case the Attorney General decides, the Attorney General’s decision shall
be stated in writing and shall be transmitted to the Board or Secretary, as appropriate,
for transmittal and service as provided in paragraph (f) of this section. 10
8 C.F.R. § 1003.1(h).
The provision addressing finality of Board decisions, former 8 C.F.R.
§ 3.1(d)(3) (2000), has not been substantively amended. Now located at
8 C.F.R. § 1003.1(d)(7), the current version of the regulation provides:
Finality of decision. The decision of the Board shall be final except in those cases
reviewed by the Attorney General in accordance with paragraph (h) of this section.
The Board may return a case to the Service [DHS] or an immigration judge for such
further action as may be appropriate, without entering a final decision on the merits of
the case.
Background and Security Investigations in Proceedings Before Immigration
Judges and the Board of Immigration Appeals, 70 Fed. Reg. 4743, 4752
(Jan. 31, 2005) (interim, effective Apr. 1, 2005) (to be codified at 8 C.F.R.
§ 1003.1(d)(7)).
Other relevant amendments, newly promulgated in 2002 to address timely
adjudication of Board decisions, are discussed in Part E, below.
B. Issue in Matter of A-H-
In Matter of A-H-, 23 I&N Dec. at 701 (attachment to the Attorney General’s
decision in Matter of E-L-H- ), the issue before the Attorney General was
whether an unpublished Board decision granting asylum to the respondent should
be given effect by the Service pending review of the merits of the asylum claim
by the Attorney General. The Attorney General issued an interim order and
decision finding that the Board’s grant of asylum was not “final” within the
meaning of 8 C.F.R. § 3.1(d)(3) (2000) and therefore should not be given effect
pending Attorney General review of the merits.11
In so holding, the Attorney General observed in Matter of A-H-, 23 I&N Dec.
at 701, that the reference to “final” decisions in 8 C.F.R. § 3.1(d)(3) appeared
to be in tension with the directive in 8 C.F.R. § 3.1(g) that Board decisions
remain “binding” on the Service and Immigration Judges “except as they may be
10
The regulation at 8 C.F.R. § 1003.1(f) provides that the “decision of the Board shall be
in writing” and specifies how copies of the decision shall be provided to the Service and the
alien or other party affected.
11
At the time the Attorney General decided Matter of A-H-, the “final decision” provision
at 8 C.F.R. § 3.1(d)(3) (2000) had been inadvertently deleted and overwritten by
amendments of June 27, 2000 (attorney disciplinary rule). The “final decision” provision was
not restored to the regulations until August 26, 2002, as 8 C.F.R. § 1003.1(d)(6). See
67 Fed. Reg. at 54,898 (Supplementary Information). The provision is now located at
8 C.F.R. § 1003.1(d)(7).
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modified or overruled by the Board or the Attorney General.” The Attorney
General noted that it is
possible to understand this language to indicate that Board decisions, unless stayed by
the specific, affirmative act of the Attorney General or the Board itself, become
effective immediately upon issuance and, unless they are so stayed, must be executed
by the Service and by Immigration Judges even after being certified to the Attorney
General and while pending review.
Id. at 701-02 (emphasis added). The Attorney General expressed concern that
the “uncertainty engendered by the interplay of sections 3.1(d)(3) and 3.1(g)”
required decisions on whether to order a stay on very short notice, thereby
preventing “orderly and efficient Attorney General review of Board decisions.”
Id. at 702. She then concluded as follows:
In my judgment, sections 3.1(d)(3) and 3.1(g) can and ought to be harmonized in a
manner that avoids such administrative difficulties. I conclude, therefore, that, in
accordance with its plain terms, section 3.1(d)(3) renders a Board decision that has
been referred to the Attorney General non-final and without effect. Thus, a referral
operates as an automatic stay without a need for any further action of the Attorney
General. Section 3.1(g) gives binding effect to a final decision of the Board, and thus
does not apply to a decision that is pending on a referral. In accordance with the
terms of section 3.1(d)(3), therefore, if a Board decision has been certified to the
Attorney General, it is neither final nor effective during the pendency of the Attorney
General’s review (or for a later period, if the Attorney General so decides). A Board
decision may not be executed while it is not final (unless the Attorney General
specifically orders otherwise).
Id.(footnote omitted). Applying this reasoning, the Attorney General concluded
that “the decision of the Board, having been certified to me by the
Commissioner, is to be stayed pending completion of the Attorney General’s
review of the merits of the Board’s decision.” Id. at 702-03.
The Attorney General’s statement in Matter of A-H- that 8 C.F.R. § 3.1(g)
“gives binding effect to a final decision of the Board, and thus does not apply to
a decision that is pending on a referral,” must be read in the context of the issue
presented, i.e., execution of the judgment in an individual case. Id. at 702. It is
well understood that an administrative decision is not to be executed in an
individual case until a final decision is rendered. When finality of the Board’s
decision is relevant, the starting point for analysis is 8 C.F.R. § 3.1(d)(3). Under
this provision, a judgment may not be executed if the Board’s decision is
referred to the Attorney General for review.
By way of contrast, a published Board decision need not be “final” within the
meaning of 8 C.F.R. § 3.1(d)(3) in order to have precedential effect. For
example, although the Board does not ordinarily entertain interlocutory appeals,
a published decision addressing an Immigration Judge’s interlocutory order has
precedential force. See, e.g., Matter of Amico, 19 I&N Dec. 652 (BIA 1988).
Similarly, a Board decision remanding a case to an Immigration Judge for
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further consideration of an issue is not a final decision, but, if published, it must
be applied as a precedent decision. See, e.g., Matter of Azurin, 23 I&N
Dec. 695 (BIA 2005) (resolving the issue on appeal and remanding the record
to the Immigration Court for further consideration).
Under recently promulgated regulations, when the Board grants an application
for relief from removal, the Board is directed to remand the case to the
Immigration Judge with instructions to allow the DHS to complete the
necessary background investigations and report the results to the Immigration
Judge. See 70 Fed. Reg. at 4748, 4752 (to be codified at 8 C.F.R.
§ 1003.1(d)(6)). The introductory information to the regulation states that a
Board decision granting relief and remanding to permit completion of the
background check “will be an order remanding the case and not a final decision.”
70 Fed. Reg. at 4748 (emphasis added). Nonetheless, there is no doubt that such
a decision, if published, would have the force of precedent as to the legal
principles established in the Board’s decision. As these examples illustrate, a
Board decision need not be a final decision in order to have precedential effect.
In addressing 8 C.F.R. § 3.1(g) in Matter of A-H-, the Attorney General
quoted only the clause indicated below in italics.
Decisions of the Board as precedents. Except as they may be modified or
overruled by the Board or the Attorney General, decisions of the Board shall be
binding on all officers and employees of the Service or Immigration Judges in the
administration of the Act, and selected decisions designated by the Board shall serve
as precedents in all proceedings involving the same issue or issues.
(Emphasis added.) She did not quote or refer to the portions of the regulation
that are specifically addressed to precedent decisions, i.e., the caption and the
final clause. Nor does Matter of A-H- mention precedent decisions at any point
in the analysis.
When the issue is the effect of a precedent decision, there is no need for
harmonization of 8 C.F.R. §§ 3.1(d) and 3.1(g) because the directly applicable
provision, 8 C.F.R. § 3.1(g), clearly provides that published Board decisions
retain precedential effect unless modified or overruled by the Attorney General.
Therefore, the Attorney General’s determination that the terms of 8 C.F.R.
§ 3.1(g) do not override the “finality” requirement of 8 C.F.R. § 3.1(d) was
addressed to situations in which “finality” is relevant, i.e., a request to stay the
execution of the disposition in an individual case.12
12
Whether a decision is “final” is generally relevant in a number of different contexts
throughout the law, including execution of judgments, res judicata, collateral estoppel, and
appellate review. See, e.g., Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002)
(finding no jurisdiction to review a case in which there was not yet a final order of removal).
In other contexts, however, including “law of the case” for unpublished decisions and
precedential effect for published decisions, finality of the decision is not a determinative
factor.
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An elemental rule of construction is that we should apply the plain meaning
of regulatory provisions. Matter of Artigas, 23 I&N Dec. 99 (BIA 2001). The
DHS argument that published Board decisions must be “final” decisions in order
to have precedential effect ignores the plain meaning of 8 C.F.R. § 3.1(g). Such
a construction of the regulatory provisions would render meaningless and
superfluous the “modified or overruled” language of that section and violate the
principle that we should “‘give effect, if possible, to every clause and word of
a statute.’” United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting
Inhabitants of Montclair Township v. Ramsdell, 107 U.S. 147, 152 (1883)).
As indicated in the following section, both the Board and the circuit courts have
applied the plain language of 8 C.F.R. § 3.1(g) in recognizing the controlling
effect of published Board decisions pending Attorney General review.
C. Case Law Regarding the Effect of Board Precedent Decisions
The long-accepted understanding of the precedential effect of Board
decisions has been that published Board decisions remain binding unless
modified by the Board, the Attorney General, Congress, or a Federal court. In
Matter of G-, 20 I&N Dec. 764 (BIA 1993), the Board addressed the question
whether its decision in Matter of Chang, supra, that enforcement of China’s
one child policy was not persecution, retained precedential force. Following the
Board’s decision in Chang, the Attorney General issued policy guidelines and
an interim regulation indicating that aliens fleeing their country’s family
planning policies of forced abortions or sterilizations may be considered to have
a well-founded fear of persecution on account of political opinion. See Refugee
Status, Withholding of Deportation, Asylum; Burden of Proof, 55 Fed. Reg.
2803, 2805 (Jan. 29, 1990) (interim rule). Although the Board’s decision in
Matter of Chang was not referred to the Attorney General, the Board
subsequently referred two decisions involving the Chang family planning issue
to the Attorney General for review under the provisions of 8 C.F.R. § 3.1(h)
(1993).
In Matter of G-, supra, at 777, we addressed the effect of these referrals as
follows:
Pending the decision of the Attorney General on these referred cases, we will continue
to follow Matter of Chang, supra, as precedent in all proceedings involving the same
issues, including the case now before us. See 8 C.F.R. § 3.1(g) (1993). Accordingly,
we will deny the applicant’s request for a stay of these appellate proceedings pending
the Attorney General’s review of the two referred cases.
Thus, although we had referred cases involving the issue in Chang to the
Attorney General for review and the Attorney General had submitted a final
regulation which would have explicitly overruledMatter of Chang, we held that
Chang retained precedential force unless and until overruled by the Attorney
General. Id.
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Since our decision in Matter of G- in 1993, the Federal circuit courts have
also relied on the regulation at 8 C.F.R. § 3.1(g) in recognizing the effect of
Board precedent decisions. In Chen v. Carroll, 866 F. Supp. 283 (E.D. Va.
1994), the court found that we properly applied our precedent decision in
Matter of Chang in our 1994 decision affirming an Immigration Judge’s denial
of asylum. Noting that the Attorney General’s final rule overruling our decision
in Chang had never been published, the court explained:
Unless modified or overruled by the Board or the Attorney General, decisions of the
Board are binding on all Immigration Law Judges. 8 C.F.R. § 3.1(g) (1994). The
Attorney General may modify or overrule a Board decision through the referral
process prescribed in 8 C.F.R. § 3.1(h) (1994) or through issuance of an effective
regulation. As discussed above, none of the regulations addressing the issues in
Chang were effective at the time of the IJ’s decision in this case. Furthermore, the
Attorney General has neither modified nor overruled Chang. Thus, Chang remains
in force and was valid, binding precedent for the IJ and Board’s decisions.
Chen v. Carroll, supra, at 287 (footnote omitted); s ee also Wang v. Slattery,
877 F. Supp. 133 (S.D.N.Y. 1995); Gao v. Waters, 869 F. Supp. 1474 (N.D. Cal.
1994) (and cases cited therein).
In the 7 years between the Service’s referral and the Attorney General’s
denial of the Service’s request for review of Matter of C-Y-Z-, we issued
additional precedent decisions further developing the legal principles
established in Matter of C-Y-Z-. See, e.g., Matter of G-C-L-, 23 I&N Dec. 359
(BIA 2002) (granting reopening to an applicant who qualified for asylum under
the Board’s holding in Matter of C-Y-Z-); see also Matter of Y-T-L-, 23 I&N
Dec. 601 (BIA 2003) (reaffirming our analysis and holding in Matter of C-Y-Z-
and finding that where an alien has established past persecution based on the
forced sterilization of his spouse, the fact that the alien and his spouse face no
further threat of forced sterilization is not a “fundamental change” in
circumstances sufficient to meet the standards for a discretionary denial of
asylum). Significantly, neither the Service nor DHS argued in these cases that
Matter of C-Y-Z- lacked precedential effect because it had been referred to the
Attorney General. Nor has the Service or the DHS, to our knowledge, raised
this issue in any of the thousands of unpublished decisions of the Immigration
Judges or the Board applying the holding in Matter of C-Y-Z- during this period.
Federal circuit court decisions have also recognized the precedential effect
of Matter of C-Y-Z- after its referral to the Attorney General. See Lin v.
Ashcroft, 385 F.3d 748, 753 (7th Cir. 2004) ( recognizing Matter of C-Y-Z-’s
extension of asylum protections to the spouse of an individual subjected to
forced sterilization); Ge v. Ashcroft, 367 F.3d 1121 (9th Cir. 2004) (finding
that the alien was eligible for asylum under Matter of C-Y-Z- where he showed
that his wife was forced to undergo an abortion under China’s one-child policy);
Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir. 2004) (recognizing Matter of
C-Y-Z- and noting that “[t]he BIA and the courts have uniformly applied the
statute’s protections to husbands whose wives have undergone abortions or
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sterilization procedures”); Qui v. Ashcroft, 329 F.3d 140 (2d Cir. 2003)
(recognizing the applicability of Matter of C-Y-Z- to a claim involving forced
sterilization of the respondent’s wife); He v. Ashcroft, 328 F.3d 593 (9th Cir.
2003) (reversing the adverse credibility finding and recognizing the applicability
of Matter of C-Y-Z- to an alien who testified that his wife had been involuntarily
sterilized); Zhao v. United States Dept. of Justice, 265 F.3d 83 (2d Cir. 2001)
(reversing the Board’s denial of a motion to reopen and remanding to the Board
for examination of the case in light of Matter of C-Y-Z-).
As discussed below, had mere referral of the Board’s decision in Matter of
C-Y-Z- nullified its effect as controlling authority, the critical legal issues
decided in Matter of C-Y-Z- would have remained unresolved and thousands of
cases would have lingered for years pending before Immigration Judges and the
Board until the Attorney General either declined review or addressed the issues
referred.
D. The Board Speaks for the Attorney General in
Issuing Precedent Decisions
The Board functions as the agent of the Attorney General “charged with the
review of those administrative adjudications under the Act that the Attorney
General may by regulation assign to it.” 8 C.F.R. § 1003.1(d)(1) (2005). The
Attorney General has directed that the Board “through precedent decisions, shall
provide clear and uniform guidance to the Service [now the DHS], the
immigration judges, and the general public on the proper interpretation and
administration of the Act and its implementing regulations.” Id. Although the
Attorney General retains ultimate authority over the meaning of immigration
laws and regulations, the Board is charged and entrusted with the responsibility
for issuing precedent decisions interpreting the immigration laws and
regulations. In so doing, the Board acts on the Attorney General’s behalf.13
Under this principal/agent framework, the Board’s interpretation of the
immigration law, when set forth in a published Board decision, remains an
authoritative statement of the law unless modified or overruled by the Attorney
General.
The mere referral of a published Board decision for Attorney General review
does not negate the controlling effect of the Board’s interpretation of the
immigration law. In some respects, the provision for Attorney General review
13
In issuing precedent decisions, the Board Members act as the “delegates” of the
Attorney General. 8 C.F.R. § 1003.1(a)(1) (2005). The Supplementary Information
accompanying the 2002 case management regulations confirm that the “‘Board acts on the
Attorney General’s behalf rather than as an independent body. The relationship between the
Board and the Attorney General thus is analogous to an employee and his superior rather
than to the relationship between an administrative agency and a reviewing court.’” 67 Fed.
Reg. at 54,883 (quoting Matter of Hernandez-Casillas, 20 I&N Dec. 262, 289 n.9 (A.G.
1991; BIA 1990)).
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is akin to a certiorari process in which the Attorney General may decline the
request to review the case referred, as he did in Matter of C-Y-Z-, supra. See
Matter of Cazares, 21 I&N Dec. 188 (A.G. 1997; BIA 1996, 1997) (declining
to review Board interpretations in light of subsequent legislation addressing the
issue); Matter of Ponce de Leon, 21 I&N Dec. 154 (A.G. 1997; BIA 1996,
1997); see also Matter of Farias, 21 I&N Dec. 269 (A.G. 1997; BIA 1996,
1997) (remanding to the Board with directions to reconsider whether the
savings clause in legislation overruling the Board’s decision applied to the
respondent’s case).
In some cases, such as Matter of E-L-H-, the Attorney General has explicitly
vacated a referred Board decision and remanded for further consideration based
on subsequent developments. See also Matter of R-A-, 22 I&N Dec. 906 (A.G.
2001; BIA 1999) (vacating the Board’s decision that a woman who had been
abused by her husband was not a member of a “particular social group” for
purposes of protection under the asylum law, and remanding for reconsideration
after publication of a proposed regulation on gender-based persecution). In
Matter of N-J-B-, 21 I&N Dec. 812, 841 (A.G., BIA 1997), the Attorney
General directed the Board to refer the decision for review and specifically
vacated the Board’s decision “pending [the Attorney General’s] further
determination.”
Were mere referral to the Attorney General sufficient to nullify the
precedential effect of a Board decision, there would have been no need for the
Attorney General to order that the Board’s decision be vacated. Rather, on a
case-by-case basis, the Attorney General decides whether to nullify the
precedential effect of a published Board decision before rendering a decision
on review. Until the Attorney General indicates otherwise, the Board’s
precedent decisions on the meaning of the immigration laws or regulations
should be applied by the Board, Immigration Judges, and officials of the
Department of Homeland Security to pending cases involving the same issue or
issues. This has been the clear directive in the controlling regulations for over
50 years. The DHS has not presented convincing arguments that Matter of
A-H-, which does not address the issue of precedent decisions, was intended to
overturn this long-accepted understanding of the effect of Board precedent
decisions.
Under the DHS view, a referral of any Board decision would immediately
negate the precedential force of that decision. Notably, there is no time limit
on when a Board decision may be referred to the Attorney General under
8 C.F.R. § 1003.1(h). A system in which a precedent decision, no matter how
long ago rendered, could be negated by the mere act of referral to the Attorney
General by the DHS would disrupt the orderly consideration of cases by
Immigration Judges and the Board and undermine the delegated authority of the
Board, which is acting on behalf of the Attorney General, to interpret the
immigration law and to provide guidance on the meaning of immigration laws
and regulations. As discussed below, such a system could also significantly
delay adjudication of large numbers of cases and disrupt the case management
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system implemented by the regulations promulgated in 2002. 67 Fed. Reg. at
54,878.
E. Timely Adjudication of Immigration Cases
Under the 2002 case management regulations, the Board is required to
“resolve the questions before it in a manner that is timely, impartial, and
consistent with the Act and regulations.” 8 C.F.R. § 1003.1(d)(1). The
regulations mandate that “[e]xcept in exigent circumstances,” all appeals must
be completed by a single Board member within 90 days of completion of the
record on appeal, or by a three-member panel within 180 days of assignment to
a three-member panel. 8 C.F.R. §1003.1(e)(8)(i). In “exigent circumstances,”
the Chairman is authorized to grant an extension of 60 days in which to
complete the case. 8 C.F.R. § 1003.1(e)(8)(ii). The only other exception to
these case completion deadlines is limited to the
rare circumstances, when an impending decision by the United States Supreme Court
or a United States Court of Appeals, or impending Department regulatory
amendments, or an impending en banc Board decision may substantially determine
the outcome of a case or group of cases pending before the Board.
8 C.F.R. § 1003.1(e)(8)(iii).
Under these circumstances, the Chairman may hold cases, temporarily
suspending the time limits described above, until the anticipated decision is
rendered, the statute is enacted, or the regulation promulgated.14 Notably, the
list of exceptions to the case completion time limits does not include a
reference to decisions referred to the Attorney General. Even were this list of
“rare circumstances” understood as exemplary, so that an anticipated Attorney
General decision in a case on referral might justify suspending the applicable
time completion deadlines, the regulations delegate such discretion to the
Chairman of the Board, i.e., “the Chairman may hold the case or cases.”
8 C.F.R. § 1003.1(e)(8)(iii) (emphasis added). Thus the framework for timely
review established by the case management regulations confirms that a Board
precedent decision remains effective until the Board or the Attorney General
rules otherwise.15 If the Attorney General wishes to do so, he may of course
14
See 67 Fed. Reg. at 54,896 (directing the Chairman to inform the Director of EOIR and
the Attorney General of all such hold s) (Supplementary Information) .
15
Reliance on Board precedent decisions is an important aspect of the Board’s case
management system. For example, in determining whether it is appropriate to summarily
affirm an Immigration Judge’s decision, the Board is directed to consider whether the issues
on appeal “are squarely controlled by existing Board or federal court precedent.” 8 C.F.R.
§ 1003.1(e)(4)(i)(A). A single Board member may reverse a decision if “reversal is plainly
consistent with and required by intervening Board or judicial precedent.” 8 C.F.R.
§ 1003.1(e)(5).
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vacate a Board precedent decision pending further review or subsequent
developments. See, e.g., Matter of R-A-, supra.
Were published Board decisions automatically stripped of precedential effect
upon referral to the Attorney General, the Board would have to “hold,”
administratively close, or otherwise delay adjudication in significant numbers
of cases for what could be many years. Immigration Judges, likewise, would
have to grant continuances in cases involving the issue on referral until
addressed by the Attorney General or the Board. Some of these cases will
involve detained aliens whose detention will be prolonged until the issue on
referral is resolved by the Attorney General.
Under the 2002 case management regulations, the Board has eliminated its
backlog of cases and has issued timely decisions under the 90-day and 180-day
deadlines. Under the DHS’s proposed interpretation of 8 C.F.R. § 1003.1(g),
a significant backlog of undecided cases could again develop, clogging the
dockets of the Board and the Immigration Courts. Such a result would
undermine the principal goals the Attorney General set in the 2002 case
management regulations, i.e., reduction of the Board’s backlog and prompt
adjudication of cases. See 67 Fed. Reg. at 54,878. These concerns support our
decision to apply the plain language of 8 C.F.R. § 1003.1(g) in resolving this
issue.
IV. CONCLUSION
Based on the plain language of 8 C.F.R. § 1003.1(g), and given the different
context and limited scope of the Attorney General’s unpublished decision in
Matter of A-H-, and for the other reasons discussed above, we reaffirm our
decision in Matter of E-L-H-, 22 I&N Dec. 21 (BIA 1998). We therefore find
that a Board precedent decision referred to the Attorney General pursuant to
8 C.F.R. § 1003.1(h) remains applicable to other cases involving the same issue
or issues unless and until vacated, modified, or overruled by the Attorney
General, the Board, Congress, or a Federal court. We will therefore deny the
DHS’s motion to reconsider.
ORDER: The motion for reconsideration of the Department of Homeland
Security is denied.
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