# Demirzhiu v. Ashcroft

> Court of Appeals for the Sixth Circuit · January 26, 2004 · 96 F. App'x 263

URL: https://www.frixlaw.com/law-library/cases/8424216

## Case

- **Full name:** Ilir DEMIRZHIU v. John ASHCROFT, Attorney General Carol Jenifer, District Director Immigration and Naturalization Service, Respondents Luljeta Halili v. Immigration and Naturalization Service John Ashcroft, Attorney General
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** January 26, 2004
- **Citations:** 96 F. App'x 263
- **Precedential status:** Published
- **Opinion:** Concurrence by Aldrich
- **Judges:** Aldrich, Gibbons, Kennedy
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8424216

## Opinion text

ALDRICH, District Judge,
Concurring.
I join the panel’s opinion in full with respect to Part I and Parts III-VI. Because I agree with Judge Gibbons that the Court’s recent opinion in Denko v. INS, 351 F.3d 717 (6th Cir.2003), is controlling on the issue of summary affirmance (Part II)) I must also concur with the result. I write separately, however, to emphasize my belief that Denko was wrongly decided.
*270 The Fifth Amendment to the United States Constitution guarantees that “[n]o person shall be ... deprived of life, liberty, or property, without due process of law.” “As old as the first immigration laws of this country is the recognition that non-citizens, even if illegally present in the United States, are ‘persons’ entitled to the Fifth Amendment right of due process in deportation proceedings.” Detroit Free Press v. Ashcroft, 303 F.3d 681, 688 (6th Cir.2002) (citations omitted). See also Reno v. Flores, 507 U.S. 292, 306 , 113 S.Ct. 1439 , 123 L.Ed.2d 1 (1993) (“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”) (citations omitted); Abdulai v. Ashcroft, 239 F.3d 542, 549 (3rd Cir.2001) (“Despite the fact that there is no constitutional right to asylum, aliens facing removal are entitled to due process.”)
The Supreme Court has explained:
We are dealing here with procedural requirements prescribed for the protection of the alien. Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.
Bridges v. Wixon, 326 U.S. 135, 154 , 65 S.Ct. 1443 , 89 L.Ed. 2103 (1945).
Reviewing courts have repeatedly emphasized the flexible nature of the right to due process. By 1976, the Supreme Court could label as a “truism” the principle that “due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976) (citations omitted).
I would reach a different result from the Court in Denko , pursuant to Eldridge’s admonition that “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner,” Id. at 333 (citations omitted). Petitioners such as Demirzhiu and Denko bear the burden of proving that the BIA failed to provide them with such an opportunity. I would hold that they can carry this burden with regard to the “streamlining provisions” contained in 8 C.F.R. § 1003.1 (a)(7).
The Court in Denko gives some weight to the proposition that due process requires next to nothing of the BIA, since the government is not required to provide aliens with appellate review of any kind. See 351 F.3d 717 , 2003 Fed.App. 0432P at 18-19, citing Guentchev v. INS, 77 F.3d 1036, 1037-8 (7th Cir.1996)(Easterbrook, J.)(“The Constitution does not entitle aliens to administrative appeals ... The Attorney General could dispense with the Board [entirely].”) In this respect, deportation hearings resemble state criminal prosecutions, for which “it is clear that the State need not provide any appeal at all.” Ross v. Moffitt, 417 U.S. 600, 611 , 94 S.Ct. 2437 , 41 L.Ed.2d 341 (1974), citing McKane v. Durston, 153 U.S. 684 , 14 S.Ct. 913 , 38 L.Ed. 867 (1894).
Yet the Court in Denko fails to recognize that, as in state criminal court, once appellate review has “become an integral part” of the system for adjudicating the rights of immigrants, such review must be provided in accordance with constitutional norms. “Consequently at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons ... from invidious discriminations.” Griffin v. Illinois, 351 U.S. 12, 18 , 76 S.Ct. 585 , 100 *271 L.Ed. 891 (1956). Once the government establishes a level of appellate review, it cannot later issue regulations which reduce that level to a sham or a mere formality.
Indeed, prior to the enactment of § 1003.1(a)(7), most courts which had occasion to consider the matter determined that the Fifth Amendment, as read through the corrective lens of Eldridge , compels the BIA to provide those who come before it with certain formal indicia of individualized consideration. The Third Circuit, for example, has held that to comport with due process, the BIA cannot “act as a mere rubber-stamp.” Marincas v. Lewis, 92 F.3d 195 , 202 n. 7 (3d Cir.1996). The same court later held that a petitioner such as Demirzhiu:
(1) is entitled to “factfinding based on a record produced before the decisionmaker and disclosed to” him;
(2) must be allowed to make arguments on his ... own behalf; and
(3) has the right to “an individualized determination of his interests,”
Abdulai, 239 F.3d at 549 (citations omitted).
The phrases “meaningful review” and “individualized determination” may be elucidated by reference to a number of formulations offered by the federal appellate courts. The Ninth Circuit, for example, has required that the BIA provide “a reasoned explanation based upon legitimate concerns.” Iin practice, this should be more than “a brief recitation of the facts, a statement about the great weight owed to the IJ’s finding [regarding] credibility, ... boilerplate language regarding the requirements of the statute,” and a single-sentence dismissal citing a single case. Velarde v. INS, 140 F.3d 1305, 1310 (9th Cir.1998), citing Vargas v. INS, 831 F.2d 906, 908 (9th Cir.1987). Cf. Larita-Martinez v. INS, 220 F.3d 1092, 1096 (9th Cir.2000) (single citation may occasionally suffice). The Ninth Circuit has shown similar dissatisfaction with “conclusory or laconic statements” by the BIA. Saldana v. INS, 762 F.2d 824, 827 (9th Cir.1985). The Seventh Circuit, while careful “to defer to the Board” nonetheless requires “some proof that the Board has exercised its expertise in hearing a case.” Sanon v. INS., 52 F.3d 648, 651 (7th Cir. 1995)(Flaum, J.).
Of course, the above statements should not be interpreted to mean that, when the BIA agrees with an IJ’s rationale, due process demands reinvention of the proverbial wheel. Chen v. INS, 87 F.3d 5, 7 (1st Cir.1996). The BIA need not parrot the IJ’s reasoning on every claim, nor “write an exegesis on every contention.” Sanon, 52 F.3d at 651 (citations omitted). Many courts have been content to affirm the BIA when it simply affirms the IJ “for the reasons set forth in that decision.” Chen v. INS, 87 F.3d 5, 8 (1st Cir.1996), citing Prado-Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir.1996); Gomez-Mejia v. INS, 56 F.3d 700, 702 (5th Cir.1995); Urukov v. INS, 55 F.3d 222, 227-28 (7th Cir. 1995); Alaelua v. INS, 45 F.3d 1379, 1382-83 (9th Cir.1995); Maashio v. INS, 45 F.3d 1235, 1238 (8th Cir.1995); Gandarillas-Zambrana v. BIA 44 F.3d 1251, 1255 (4th Cir.), cert. denied, 516 U.S. 806 , 116 S.Ct. 49 , 133 L.Ed.2d 14 (1995); Pamit v. INS, 19 F.3d 544, 546 (10th Cir.1994); Arango-Aradondo v. INS, 13 F.3d 610, 613 (2d Cir.1994).
Yet the “streamlining provisions” of 8 C.F.R. § 1003 do not even provide those who appeal to the BIA with such a statement of transitively-assumed rationale. Instead, the regulation unhelpfully states that affirmance without opinion, as dispensed to petitioners such as Demirzhiu, “does not necessarily imply approval of all of the reasoning of’ the decision below. 8 C.F.R. § 1003.1 (a)(7)(iii). Unlike the panel in Denko , I do not believe that this language is functionally equivalent to a *272 statement that the BIA has reviewed the IJ’s decision, and expresses its agreement with the reasons therein. The bar set by the above-cited cases is not high; it requires only language evincing some review of the prior proceedings before affirmance. An opinion by the BIA “not necessarily” in accordance with the reasoning below, without further explanation or additional reasoning, 1 falls beneath such a bar.
Against this background, Demirzhiu’s contention that the BIA’s summary affirmance does not meet the minimum standards for adequately addressing his claims should succeed. The procedures laid down by § 1003.1(a)(7), as implemented in this case, “effectively remove the Board as a separate reviewing body.” Panrit v. INS, 19 F.3d 544, 546 (10th Cir.1994).
However specifically construed, “meaningful review” must require that the BIA provide an alien facing deportation with something in the way of a reasoned, individualized opinion. By failing to so much as state that its rationale precisely matches the IJ’s, the BIA has given Demirzhiu precisely nothing. Contrary to the holding in Denko , I would find that § 1003.1(a)(7) offends due process to the extent that it institutionalizes this approach. 2
Because the BIA’s opinion, as written, cannot satisfy even the less than demanding standards articulated by federal courts in this area, I would hold that it constitutes a denial of Demirzhiu’s right to due process under the Fifth Amendment. Because the Court in Denko held otherwise, I respectfully concur.
. In fact, the "streamlining provisions” explicitly prohibit "further explanation or reasoning.” 8 C.F.R. § 1003.1 (a)(7)(iii).
. The Denko opinion hints that a petitioner might successfully challenge the streamlining provisions, if (s)he presented specific evidence that the BIA did not undertake the proper review before issuing its opinion. ("We agree that a petitioner must show more. Here, Denko has provided no evidence that the Board failed to give [his] case proper review ... We will not assume such a complete break-down in the system in the absence of tangible evidence to support such a conclusion.” [Denko cite] (citations omitted))
The facts of the case at bar demonstrate the absurdity of this implication. Demirzhiu, like Denlco, poses his objection, on due process grounds, to a regulation which drastically limits his access to information regarding the workings and reasoning of the BIA. He argues, essentially, that § 1003.1(a)(7) denies him "tangible evidence” regarding the review process. Requiring him to submit such evidence therefore creates a needlessly cruel judicial Catch-22.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8424216. Public record. Not legal advice.