# Gerardo Bibiano Falcon Carriche Theresa v. De Falcon Carriche and Christina Pamela Falcon Bibiano v. John Ashcroft, Attorney General

> Court of Appeals for the Ninth Circuit · November 24, 2003 · 350 F.3d 845

URL: https://www.frixlaw.com/law-library/cases/9496557

## Case

- **Full name:** Gerardo Bibiano FALCON CARRICHE; Theresa v. De Falcon Carriche; And Christina Pamela Falcon Bibiano, Petitioners, v. John ASHCROFT, Attorney General, Respondent
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** November 24, 2003
- **Citations:** 350 F.3d 845; 2003 U.S. App. LEXIS 23853
- **Precedential status:** Published
- **Opinion:** Concurring in part by Nelson
- **Judges:** Nelson, Silverman, McKeown
- **Cited by:** 1,203 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/9496557

## How later opinions describe it (automated extraction)

- holding that the BIA’s streamlining procedure does not violate an alien’s due process rights and expressly embracing the rationale of Albathani v. INS, 318 F.3d 365, 376-79 (1st Cir.2003), which held that the streamlining scheme does not violate any statute
- stating that it is not a due process violation for the BIA to affirm the IJ’s decision without issuing an opinion because the IJ’s decision becomes the final agency action which is then reviewed directly by this Court
- stating that in most cases, “streamlining and the merits issues collapse into one analysis and thus the issues surrounding jurisdiction over streamlining, however decided, [do] not prevent review on the merits”
- holding that the BIA’s decisions under 8 C.F.R. § 1003.1(e)(5) are renewable
- holding that the court lacked jurisdiction to consider petitioners’ regulatory challenge to streamlining because the court lacked jurisdiction over petitioners’ underlying hardship determination

## Opinion text

T.G. NELSON, Circuit Judge,
concurring in part and dissenting in part:
With respect and with the recognition that “[i]t is bad for the mind to continually be part of unanimity,” 1 I must part ways with the majority’s analysis. I disagree with the majority’s conclusion that we lack jurisdiction to review the BIA’s decision to streamline a case. With one exception, the plain language of the streamlining criteria demonstrates that the criteria are non-discretionary. Thus, under clear precedent, we retain jurisdiction to review the streamlining decision. Not surprisingly, no other circuit has concluded that it lacks jurisdiction to review the decision to streamline.
Because I conclude that the BIA appropriately streamlined this case, I too would deny the petition. Thus, I concur in the end result the majority reaches. The critical difference between my analysis and that of the majority is that I would deny the entire petition on the merits rather than deny it in part and dismiss it in part for lack of jurisdiction.
I agree with the conclusion that the streamlining procedures do not violate due process. In the interest of brevity and to focus my discussion on the major difference between my reasoning and that of the majority’s, I will not dwell on the problems with the majority’s analysis of the risks posed by the streamlining regulations. 2 I *805 turn now to the heart of my disagreement with the majority.
I. WE HAVE JURISDICTION TO REVIEW THE DECISION TO STREAMLINE BECAUSE THE STREAMLINING CRITERIA ARE NON-DISCRETIONARY
The majority acknowledges the streamlining criteria but then subsequently ignores them in its analysis. However, “[fjacts do not cease to exist because they are ignored.” 3 A member of the BIA may streamline a case if the IJ’s decision was correct, any errors were harmless, and either precedent controls the issue and the issue does not involve a novel factual situation or the issues are insubstantial. 4 Significantly, the streamlining regulation does not authorize the BIA member to streamline as a matter of discretion if the case does not meet these criteria. Rather, like the statutory prerequisites for cancellation of removal relief, 5 the streamlining criteria are mandatory, qualifying criteria. A case must meet those criteria before a BIA member may streamline. If the criteria are not met, a three-member panel must decide the case. 6
In determining whether we have jurisdiction, the critical question is whether the criteria are discretionary or non-discretionary. 7 The majority mistakenly concludes that it would have to reassess the merits of the discretionary hardship decision if it were to find jurisdiction and to reach the merits of this case. 8 The majority asks the wrong question and ignores the actual claim the Carriches assert. In so doing, the majority fails to apply bedrock principles of statutory construction that we apply in analyzing immigration statutes. In particular, it ignores the principle that we must “construe narrowly [immigration statutes’] restrictions on jurisdiction.” 9
*806 A BIA member may streamline a case if (1) the result the IJ reached was correct; (2) any errors were “harmless or non-material”; and (3) either precedent controls the issue and the issue involves no novel factual situation, or the issue is so insubstantial that full review is not warranted. 10 As a general rule, the mandatory criteria are non-discretionary. For example, when a single BIA member evaluates the second criterion and determines that an error is harmless, the evaluation involves no discretion: the BIA member merely applies the law to the facts. 11 The third criterion is similarly non-discretionary. For example, determining whether precedent controls and the issue involves no novel factual situations is not an exercise of discretion. As we explained in Kalaw v. INS, 12 we retain jurisdiction to consider issues that require “application of law to factual determinations.” 13 With one exception, review of the streamlining criteria requires nothing more than the application of law to facts. Thus, as a general matter, the streamlining criteria are non-discretionary, and we retain jurisdiction.
One fact-specific exception exists. The first criterion requires the BIA member to evaluate whether the result was correct. The BIA’s evaluation of this factor may, but will not always, be a discretionary decision. The decision will be discretionary under the following facts. Assume that an IJ concluded that an alien met the statutory prerequisites for cancellation of removal but denied relief as a matter of discretion. Further assume that the alien believes that the IJ’s discretionary determination was error and therefore appeals the BIA’s decision to streamline. Before us, the alien would assert that his case did not meet the first streamlining criterion because the result was incorrect. 14 In such a situation, evaluation of the case necessarily requires the BIA member to determine whether the IJ correctly denied cancellation of removal. We would lack jurisdiction because the only basis the alien raises on which we could reverse the streamlining decision would require us to second-guess a discretionary decision. That we cannot do. Thus, we would lack jurisdiction over the streamlining decision if the alien asserts that the result was incorrect because the alien disagrees with the IJ’s exercise of discretion.
The evaluation of the first criterion will not always be discretionary, however. If the alien asserts that the result was incorrect because the IJ’s non-discretionary determination was error, then the BIA’s evaluation of that criterion is similarly non-discretionary. For example, if an IJ denied relief because of an erroneous conclusion that the alien had not established the requisite time in this country to qualify for relief, 15 an evaluation of whether the result was correct would not require this court to second-guess a discretionary determination. Thus, the first criterion may be discretionary in some cases. In such *807 cases, we would lack jurisdiction, while in others, we would not.
The majority tries to shoehorn the Car-riches’ case into the narrow factual exception described above. However, as discussed above, the third criterion is non-discretionary — we can determine whether precedent controls by applying the law to the facts.
Contrary to the majority’s assertion, we need not reach the merits of the hardship decision. We need only ask if the BIA’s precedent covers the petitioners’ situation. 16 If precedent controls, the case is over. If precedent does not control, the case does not meet the third criterion. Thus, we would remand to the BIA for a panel decision clarifying or expanding the hardship standard. The conclusion that BIA precedent does not control says absolutely nothing substantive about the hardship standard or whether the alien has established hardship. Rather, our conclusion would inform the BIA that its precedent does not cover the petitioners’ situation and require the BIA to follow its own regulations in choosing whether or not to streamline a case. 17 The only relief we would offer is remand. 18 On remand, the BIA would be free to conclude that the petitioners showed insufficient hardship. Likewise, the BIA would be free to conclude that the petitioners satisfied the hardship standard.
In addition to the plain language of the streamlining regulation, decisions of our sister circuits support the conclusion that we have jurisdiction to review the decision to streamline. The majority cites to no other court that has concluded it lacks jurisdiction to review the decision to streamline because no such court exists. 19 In fact, the Seventh Circuit 20 and the *808 Eleventh Circuit 21 have had no difficulty-evaluating claims of improper streamlining.
I agree with the majority that sometimes the streamlining claim will fall by the wayside. When an IJ’s decision contains an error that we can address, we need not reach the decision to streamline. 22 However, our choice of which error to reach would be a matter of discretion, not one of jurisdiction. We would choose between two equally dispositive claims that arise from the same final order. 23 Indeed, as suggested by the Seventh Circuit in Georgis v. Ashcroft, 24 in some situations, remanding to the BIA because it improperly streamlined may be preferable to reaching another error. 25
II. THE BIA MAY STREAMLINE CANCELLATION OF REMOVAL CASES AND IT PROPERLY STREAMLINED THIS CASE
Because I conclude that, with one fact-specific exception, we retain jurisdiction to review streamlining decisions, I would reach the merits of the Carriches’ claim. The Carriches argue that cancellation of removal cases always involve novel fact patterns and that precedent can never control. I would reject the Carriches’ claim on the merits and hold that the BIA properly streamlined the case.
Although cancellation of removal cases are fact-intensive, they do not always involve legally novel factual situations and are sometimes squarely controlled by precedent. 26 This is true even though “the *809 BIA must consider the total cumulative effect on that petitioner of all the relevant factors.” 27 Accordingly, I would conclude that the BIA may use its streamlining procedures for cancellation of removal cases. I would also conclude that it properly did so in this ease. I depart from the majority’s analysis because I believe the plain language of the streamlining criteria compels the conclusion that we have jurisdiction to review the BIA’s decision to streamline a case.
. Christopher Morley, American novelist, journalist, and poet (1890-1957).
. The majority declares that the "risks of erroneous deprivation are mitigated through the regulatory structure itself." However, the majority chooses not to address the risks presented by the interplay between the streamlining regulations and the jurisdiction-stripping rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRI-RA”). Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), does not authorize us to ignore those risks. Id. at 335 , 96 S.Ct. 893 . Thus, I would address these risks directly. However, in so doing, I would conclude that other factors mitigate and outweigh them.
The most serious risk of erroneous removal of an alien arises from the fact that the procedures conceal the basis for the BIA's decision. 8 C.F.R. § 3.1 (a)(7)(iii) (1999). We can never know whether the BIA’s decision was based on a discretionary judgment or a non-discretionary one. As a result of this anomaly, the procedures permit a situation in which no basis for affirming would exist, yet the IJ’s decision would be affirmed. For example, assume an IJ denies relief on two grounds: a non-discretionary ground (ground A) and a discretionary ground (ground B). ■ The BIA streamlines, secretly reasoning that, although ground B — the discretionary ground — was error, the error was harmless because ground A was correct. When the case reaches this court, we do not know that the BIA rejected ground B. We do know, however, that we cannot review ground B. Further assume that we review ground A and conclude that it was error. Thus, no basis for affirming the IJ’s decision would exist because the BIA rejected ground B and we rejected ground A. At this juncture, we would have two choices: (1) we could presume that the BIA had not rejected ground B and affirm (erroneously removing the alien) because we ourselves could not review that ground, or (2) we could conclude that the case required remand.
I would conclude that this risk is mitigated because we must choose the second option: we must remand to the BIA and allow it to adopt or reject the IJ's original discretionary decision, as only it has the power to do. Because of the peculiar design of the streamlining regulations, we can no longer tell when an error is harmless. Thus, our harmless error analysis is the first of two primary factors that mitigate the risk introduced by the streamlining regulations. The second factor is the BIA’s own practices that allow it an opportunity to correct its errors. See Executive Office for Immigration Review; Board of *805 Immigration Appeals: Streamlining, 64 Fed. Reg. 56,135 , 56,136 (Oct. 18, 1999) (to be codified at 8 C.F.R. pt. 3) (allowing motions to reconsider on traditional grounds, but not only on the ground that the case was improperly streamlined); In re Ramos, 23 I. & N. Dec. 336 (BIA 2002) (reconsidering a streamlined case, determining that precedent did not control, and publishing a decision overruling earlier decisions). Because of these two factors, what would have been a serious risk now carries substantially less weight in the Mathews analysis.
. Aldous Huxley, Note on Dogma, in Proper Studies 205 (1927).
. 8 C.F.R. § 3.1 (a)(7)(h).
. 8 U.S.C. § 1229b(b)(l)(A)-(D) (listing the four statutory prerequisites that an alien must show to establish eligibility for discretionary cancellation of removal relief).
. 8 C.F.R. § 3.1 (a)(7)(iv). The three-member panel may also decide to streamline the case but only pursuant to the same criteria. Id.
. IIRIRA altered substantially the jurisdictional landscape for immigration appeals to this court. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169 (9th Cir.2003). It divided the world of immigration claims between claims asserting error in discretionary decisions and claims asserting error in non-discretionary decisions. IIRIRA only divests us of jurisdiction over the former category, not the latter. See 8 U.S.C. § 1252 (a)(2)(B)(i); see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 (9th Cir.2001) (stating that IIRIRA “limits judicial review of decisions committed to the unfettered discretion of the INS”). Cf. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 , 119 S.Ct. 936 , 142 L.Ed.2d 940 (1999) (stating that the "theme” of IIRI-RA is protection of the executive's exercise of discretion from judicial review).
. Cf. Zazueta-Carrillo, 322 F.3d at 1169 ("IIR-IRA eliminates judicial review of certain enumerated decisions entrusted to executive discretion; it does not eliminate judicial review of all decisions bearing any relationship to” discretionary forms of relief).
. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th Cir.2002); see also INS v. St. Cyr, 533 U.S. 289, 298 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001).
. 8 C.F.R. § 3.1 (a)(7)(ii).
. Zazueta-Canillo, 322 F.3d at 1169 (holding that a BIA decision was non-discretionary because it is “an application of law," and thus we have jurisdiction); Barahona-Gomez, 236 F.3d at 1120 (“Formal procedural rules also govern the BIA’s actions. These are quasi-judicial functions, not discretionary acts.”) (internal citation omitted).
. 133 F.3d 1147 (9th Cir.1997).
. Id. at 1150. Whether the case satisfies the mandatory streamlining criteria is not “subjective” either. See id. at 1151.
. Of course, this necessarily implies that the alien would also contend that the IJ's discretionary error was not harmless.
. 8 U.S.C. § 1229b(b)(l).
. The majority takes issue with my decision to frame the question in this manner. I find this quite surprising. I frame the question in this manner for two reasons. First, because the plain language of the streamlining regulations require it. 8 C.F.R. § 3.1 (a)(7)(h). Second, because the Carriches claim that their case did not meet this criterion. As I will demonstrate in the last section, determining whether precedent controls does not require reassessing the merits of the hardship determination. The majority's analysis distorts the third criteria such that it resembles the first: a question of whether or not the merits of the hardship analysis was correct. If the Department of Justice wanted to allow streamlining as long as the result was correct, it would have done so. It did not. I cannot agree with the majority’s analysis because it ignores the plain language of the streamlining criteria.
. Cf. Barahona-Gomez v. Reno, 167 F.3d 1228, 1234 (9th Cir.1999) (noting that “the objective of plaintiffs in this case was not to obtain judicial review of the merits of their INS proceedings, but rather to enforce their constitutional rights to due process in the context of those proceedings") (internal quotation marks omitted).
. Cf. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 495 , 111 S.Ct. 888 , 112 L.Ed.2d 1005 (1991) (noting that petitioners were not requesting a substantive declaration but, instead, "if allowed to prevail ... would only be entitled to have their case files reopened and their applications reconsidered in light of the newly prescribed INS procedures”).
. It is ironic that the majority relies on Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir.2003), to support its holding. The majority’s reliance on Romero-Torres only underscores the analytical flaw in its analysis. Romero-Torres established that we lack jurisdiction to review whether an alien established “exceptional and extremely unusual hardship” because it is a discretionary decision. Id. at 892 . As illustrated above, the streamlining criteria, with one fact-specific exception, are non-discretionary. Thus, the majority's analysis actually ignores the fundamental discretionary/non-discretionary distinction that Romero-Torres used to reach its holding.
. Ciorba v. Ashcroft, 323 F.3d 539, 546 (7th Cir.2003) (evaluating the BIA’s decision to streamline a case and concluding that streamlining was proper).
. See Garcia v. Att’y Gen., 329 F.3d 1217, 1222-23 (11th Cir.2003) (per curiam) (concluding that petitioner's constitutional claim that her case was improperly streamlined failed because her case met the BIA's streamlining criteria); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283 , 1288-89 & n. 7 (11th Cir. 2003) (rejecting petitioner’s claim that BIA failed to comply with the streamlining regulations and concluding that a basis existed for both affirmance of the IJ's decision and for the BIA's decision to streamline); Gonzalez-Oropeza v. U.S. Att'y Gen., 321 F.3d 1331, 1333-34 (11th Cir.2003) (per curiam) (evaluating alien's claim that the BIA violated due process by improperly streamlining alien's case, concluding that case was properly streamlined, and thus concluding that court lacked jurisdiction because alien did not present a substantial constitutional claim).
. See Fajardo v. INS, 300 F.3d 1018 , 1019 n. 1, 1022 (9th Cir.2002) (remanding based on IJ's incorrect determination that a motion to reopen was not timely and declining to base decision on petitioner's claim that BIA improperly streamlined case). Cf. Ciorba, 323 F.3d at 546 (concluding that the claim that the case was improperly streamlined lacked merit because there was no underlying error in the IJ’s asylum decision); Flores-Leon v. INS, 272 F.3d 433, 441 (7th Cir.2001) (declining to reach a claim that the BIA improperly summarily dismissed petitioner's appeal because the court "examined and rejected every claim that[petitioner] contends the BIA neglected").
. Cf. ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 282 , 107 S.Ct. 2360 , 96 L.Ed.2d 222 (1987) (concluding that an agency's decision not to grant a motion to reconsider was committed to agency discretion because there are no appropriate standards to apply, and the court can review the original order instead).
. 328 F.3d 962 (7th Cir.2003).
. Id. at 967 n. 4.
. See 8 C.F.R. § 3.1 (a)(7)(ii)(A). For example, In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (2001), controls this case. In that case, the BIA held that the petitioners failed to show exceptional and extremely unusual hardship under the following circumstances: the petitioner lived in this country for twenty years and was thirty-four years old; although his wife and infant child returned to Mexico because she was not eligible for cancellation of removal, petitioner had an eight-year-old and a twelve-year-old child, both United States citizens, who would be adversely affected by moving to Mexico; the petitioner was gainfully employed in the United States; *809 and much of the petitioner's family, including his parents and many siblings, resided lawfully in the United States.
Although differences exist between this case and Monreal-Aguinaga , these differences weigh against the Carriches or are legally insignificant.
Monreal-Aguinaga stated that a "lower standard of living or adverse country conditions in the country of return are factors to consider only insofar as they may affect a qualifying relative, but generally will be insufficient in themselves to” establish hardship. Id. § III, ¶ 2.
Contrary to the assertion of amicus, the record did not show that the Carriches would be unable to find employment in Mexico. Rather, it showed that finding work might be difficult. For example, Mr. Falcon Carriche previously worked in Mexico. Some of his brothers in Mexico had jobs. He testified that others had difficulty finding work, in part, because they were "lazy.” Even under a more lenient hardship standard, we concluded that “[difficulty in finding employment ... is ... mere [economic] detriment, relevant to a claim of hardship but not sufficient to require relief.” Santana-Figueroa v. INS, 644 F.2d 1354, 1356 (9th Cir. 1981). Thus, the facts in this case do not bring it outside the reach of Monreal-Aguinaga .
. Gutierrez-Centeno v. INS, 99 F.3d 1529 , 1535 (9th Cir. 1996).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496557. Public record. Not legal advice.