Opposition Brief — Loeza-Dominguez v. Gonzales (No. 05-1432)

FILED

(A) AUG 14 2006

No. 05-1432 OFFICE OF THE are

In the Supreme Court of the Anited States

SERGIO LOEZA-DOMINGUEZ, PETITIONER

Vv.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

ALISON MARIE IGOE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether, on petition for review of an order of

removal in which the Board of Immigration Appeals

(Board) summarily affirmed the decision of the immi-

gration judge (IJ) and then designated the IJ’s opinion

as the final agency determination, the court of appeals

should review the Board’s procedural decision not to

refer the appeal to a three-member panel for a written

opinion or should instead proceed to review the agency’s

final determination on the merits.

(I)

TABLE OF CONTENTS

Page

CNS TIE 555 a Ea ea ES 1

JUriIBGtIOR «oes Sb CESAR Mey RpoR KEENER KS RON 1

PNIN oat ce S Gak c Bats Wa ok Oa Ne Rd ae Masa 1

II a ockis EN cs wera ened nee ea kek bee ean es 6

RII os Srna Suck wen ie hae Vac gar RN ms lenh oc 17

TABLE OF AUTHORITIES

Cases:

Albathani v. INS, 318 F.3d 365 (1st Cir. 2003) ........ 6, 7

Aleru v. Gonzales, 544 U.S. 919 (2005) ................. 6

American Farm Lines v. Black Ball Freight Serv.,

SF ae OEE 5 oo ay kt kb oo oc ender eh hehe ee es 9

Auer v. Robbins, 519 U.S. 452 (1997) .......... 0.0008. 12

Blanco de Belbruno v. Ashcroft, 362 F.3d 272 (4th Cir.

ERE eran Ween s eareparce roe yang eee 3, 14

Chong Shin Chen v. Ashcroft, 378 F.3d 1081 (9th Cir.

A eerie rete a ee ee ee Pot Sere eee 13, 14

Denko v. INS, 351 F.3d 717 (6th Cir. 2008) .......... 7,13

Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) ............ 6

Dobrican v. INS, 77 F.3d 164 (7th Cir. 1996) ........... 8

Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.

PE ae CLG id Gara cak sa ew en Ree ERA eas 7,8

Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2008) ..... 7,14

Hang Kannha Yuk v. Ashcroft, 355 F.3d 1222 (10th

fe RRR en gon eer erin fies eer ier ne meagre 7

Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2008) ..... 12, 14

(III)

IV

Cases—Continued: Page

ICC v. Brotherhood of Locomotive Eng’rs, 482: U.S.

REP MOAD Sine sce RAK Coad od eee 10

INS v. Ventura, 537 U.S. 12 (2002) ............ Pcuaeas 15

Kambolli v. Gonzales, 449 F.3d 454 (2d Cir. 2006) ...... 12

Kebede v. Gonzales, 544 U.S. 947 (2005) ............... 6

Khattak v. Ashcroft, 332 F.3d 250 (4th Cir. 2003) ........ 6

Lanza v. Ashcroft, 389 F.3d 917 (9th Cir. 2004) ........ 12

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

Genied, 643 U.S. DBF (006): a ise bs ei Fett 7

Mendoza v. United States Attorney Gen., 327 F. 3d

Sas Ur PAR Ce a Fo iS cce ieee eelns ees 7

Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004) .... 6,9, 10

Prado-Gonzalez v. INS, 75 F.3d 631 (11th Cir. 1996) ....8

Rodriguez-Rodriguez, In re, 22 1. & N. Dec. 991

GA os Sitine edb vek Geneeo ee atesce eae 5

San Pedro v. Ashcroft, 395 F.3d 1156 (9th Cir. 2005) ... 12

Singh-Kaur v. INS, 183 F.3d 1147 (9th Cir. 1999) ....... 8

Smriko v. Ashcroft, 387 F.3d 279 (3d Cir. 2004) ..... 13, 14

Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003) ....... 6

Southern Ry. v. Seaboard Allied Milling Corp., 442

Mok MERINO), 665 os HSE Oe ee 9

Tsegay v. Ashcroft, 386 F.3d 1347 (10th Cir. 2004) .. 11,12

Vermont Yankee Nuclear Power Corp. v. NRDC, 435

Te PENTA. ok cask vores Whew eck eeneeeess 7,9

Webster v. Doe, 486 U.S. 592 (1988) .............58- eb

Zhang v. United States Dep't of Justice, 362 F.3d 155

ee Er Ea Sik a ee aoe he awe Coe 6

Zhu v. Ashcroft, 382 F.3d 521 (5th Cir. 2004) .......... 12

Statutes, and regulations: Page

Immigration and Nationality Act, 8 U.S.C. 1101 et seq. ... 6

ET SUT) Nira d Fd vad Sec ee tabu dca ces 7

en I oo bc so v's deca ba GA's bn K Raas one ae 12

SURC. INE occ

SEG: RSA ois sree eee sss 4,5

Bre Te cia kL eAw AS Vaca ee ae ees ae |

BAe LRM EICG) KN ces eav a vanes bwackakanka 4

Ue LEO) ie cay eas ican vedo pn euaee 12

RP RP eA UN GrD CHIE Son eck Vine cavednasasaacbss 11

Minn. Stat. Ann. § 609.377 subdiv. 1 (West 2003) ........ 4

7 C.F.R.:

OU EE 5.5) sad VitGas CAUSA ORDA ue eek) 7

ON EB on dos a vic ob RO a eA 7

8C.F.R:

SNE SE LEME! sv cy a's wae’ d Bese aba SmaANe KON 2

LOM? a sa eres Gavi es posed neers 2

I SEDs icin vk oak dcp anit ses eaeews 2

Section 1003.1(e) ....... ee vawn ee eae ey 2,11

NY RED acca. dea uaee ue haan Seakas 4

SCTE SUCRE io Asks ce hoch ens ceunecans 11

Section 1003.1(eM4)IMA) ......... cece eee eee 2

Section 1003.1(e4)(iIMB) ........ cc cece ec cecceee 2

Section 1003. 1(eM4)(ii) ww eee eee 2, 4, 8,11

Section 1008.1(@) ..... 0c csccees Pee eT ate 5

NE AER 5s ok tadecwad a cena Eas Ce eK eos 2

/

VI

Miscellaneous: Page

64 Fed. Reg. (1999):

i ND ik SAGE ani sa en va eek ded ee ee keg enaeee 2,3

GS SE ae Seer TIT Were yee CE PT e 3

GMAEES co widanh a capcknss dus pu ebas eee s Goel merés 3

bh SIN oe boas hbiseo gan veess eheenseey eine 3, 10, 12

67 Fed. Reg. (2002)

hs! eee eee eer hry eee eg mre SRO 2

In the Supreme Court of the Gnited States

No. 05-1432

SERGIO LOEZA-DOMINGUEZ, PETITIONER

Vv.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 2a-7a) is

reported at 428 F.3d 1156. The order of the Board of

Immigration Appeals (Pet. App. 8a) and the decision of the

immigration judge (Pet. App. 9a-14a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

November 17, 2005. A petition for rehearing was denied on

February 7, 2006 (Pet. App. 1a). The petition for a writ of

certiorari was filed on May 8, 2006. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. Analien who has been ordered removed from the

United States by an immigration judge (IJ) may appeal the

order to the Board of Immigration Appeals (Board). See

(1)

2

8 U.S.C. 1229a(c)(4); 8 C.F.R. 1003.1(b)(1)-(8), 1240.58(a).

Prior to 1999, administrative appeals from the removal

orders of IJs were heard by three-member panels of the

Board. On October 18, 1999, the Attorney General adopted

new regulations, which were further amended on August

26, 2002, to streamline the appellate process. See 64 Fed.

Reg. 56,135 (1999); 67 Fed. Reg. 54,878 (2002).

Pursuant to those rules, an appeal is assigned for initial

review to a single member of the Board. 8 C.F.R. 1003.1(e).

If that member finds that the result reached in the IJ’s

decision was correct and that any errors “were harmless or

nonmaterial,” and further finds that either (A) the case is

“squarely controlled by existing Board or federal court

precedent and dofes] not involve the application of

precedent to a novel factual situation,” or (B) “(t]he factual

and legal issues raised on appeal are not so substantial that

the case warrants the issuance of a written opinion,” the

reviewing judge affirms the decision without issuing a

separate opinion. 8 C.F.R. 1003.1(e)(4)(i)(A) and (B).’ In

such cases, the Board issues the following order: “The

Board affirms, without opinion, the result of the

decision below. The decision below is, therefore, the final

agency determination. See 8 CFR 3.1(e)(4).” 8 C.F.R.

1003.1(e)(4)(ii). Because an affirmance without opinion

(AWO) renders the decision of the IJ “the final agency

determination,” the regulation specifies that “[a]n order

affirming without opinion * * * shall not include further

explanation or reasoning.” bid.

' The regulation states that an affirmance without opinion “approves

the result reached in the decision below,” and that while “it does not

necessarily imply approval of all of the reasoning of that decision, [it]

* * * does signify the Board’s conclusion that any errors in the decision

of the immigration judge or the Service were harmless or nonmaterial.”

8 C.F.R. 1003.1(e)(4)(ii).

3

If the alien files a petition for review in the court of

appeals, the Attorney General has made clear that it is the

decision of the IJ, and not the Board’s summary affirmance,

that is the proper subject of judicial review. See 64 Fed.

Reg. at 56,137 (“The decision rendered below will be the

final agency decision for judicial review purposes.”); zd. at

56,138 (“For purposes of judicial review * * * the Immi-

gration Judge’s decision becomes the decision reviewed.”).

b. The impetus for the streamlining reform was the

explosive increase in the caseload of the Board. See 64 Fed.

Reg. at 56,136. Between 1984 and 1998, the number of new

appeals and motions before the Board increased from 3000

annually to 28,000 annually. /bid. Faced with such a

staggering increase, the Board’s ability to accomplish

its mission—“to provide fair and timely immigration

adjudications and authoritative guidance and uniformity in

the interpretation of the immigration laws”’—had been

compromised. J/bid. To ameliorate that problem, the

Attorney General implemented the system of streamlined

appellate review. The system is premised on the recogni-

tion that “in a significant number of appeals and motions

filed with the Board, a single appellate adjudicator can

reliably determine that the result reached by the adjudi-

cator below is correct and should not be changed on

appeal.” /d. at 56,135. In such cases, “the rule authorizes

a single permanent Board Member to review the record

and affirm the result reached below without issuing an

opinion.” Jd. at 56,135-56,136. The result is a system that

enables the Board to render decisions in a more timely

manner, while husbanding its limited resources. See

Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 280 (4th Cir.

2004) (“(T}he agency adopted regulations that would allow

it to focus a greater measure of its resources on more

complicated cases.”).

4

2. Petitioner, a citizen of Mexico, entered the United

States without inspection in September 1991. In May 2002,

petitioner pleaded guilty to the crime of malicious

punishment of a child in violation of Minnesota law. See

Minn. Stat. Ann. § 609.377 subdiv. 1 (West 2003) (“A parent

* * * who, by an intentional act or a series of intentional

acts with respect to a child, evidences unreasonable force or

cruel discipline that is excessive under the circumstances is

guilty of malicious punishment of a child.”). The complaint

alleged that petitioner repeatedly struck his stepson on the

back and legs with an electrical cord, causing “two long,

red, circular marks” on his stepson’s back and a large

bruise on his stepson’s thigh. Pet. App. 3a, 6a.

In June 2002, the government charged petitioner with

being subject to removal for having entered the United

States without inspection. Petitioner conceded that he was

removable, but applied for, inter alia, cancellation of re-

moval. Pet. App. 3a.

3. a. The IJ ordered that petitioner be removed,

determining that petitioner was ineligible for cancellation

of removal. Pet. App. 9a-14a. The IJ concluded that, for

two independent reasons, petitioner’s conviction for

malicious punishment of a child rendered him ineligible for

cancellation of removal, see 8 U.S.C. 1229b(b)(1)(C): (i)

petitioner was convicted of a crime of child abuse, see

8 U.S.C. 1227(a)(2)(E)(@); and (ii) petitioner was convicted of

a crime involving moral turpitude, 8 U.S.C. 1227(a)(2)(A)(i).

Pet. App. 12a-13a.

b. The Board affirmed the IJ’s decision without

opinion, pursuant to 8 C.F.R. 1003.1(e)(4). Pet. App. 8a.

The Board’s AWO order, as prescribed by regulation,

stated that the IJ’s decision “is * * * the final agency

determination.” /bid.; see 8 C.F.R. 1003.1(e)(4)(ii).

5

4. Petitioner filed a petition for review, which the court

of appeals denied. Pet. App. 2a-7a. The court uphelu the

IJ’s determination that petitioner was ineligible for

cancellation of removal because he had been convicted of a

crime of child abuse. The court explained that the term

“child abuse” in 8 U.S.C. 1227(a)(2)(E)(i) is not defined by

the statute, and that 2 reasonable interpretation of the term

by the Board thus would be accorded deference. Pet. App.

4a. The court observed that the Board had given “child

abuse” a “relatively broad construction” by “citing the

Black’s Law Dictionary definition of ‘child abuse’ as ‘any

form of cruelty to a child’s physical, moral, or mental well-

being.’” Jd. at 5a (quoting In re Rodriguez-Rodriguez, 22

I. & N. Dec. 991, 996 (1999)). The court concluded that the

Board’s construction is reasonable. The court further

explained that, although the IJ in this case had not

explicitly defined the term “child abuse,” the IJ was

required by regulation to apply Board precedent defining

that term. /bid. (citing 8 C.F.R. 1003.1(g)).

The court rejected petitioner’s argument that his

conviction for malicious punishment of a child under

Minnesota law could have been based on conduct that failed

to qualify as “child abuse” under the Board’s understanding

of the term, ie., “cruelty to a child’s physical, moral, or

mental well-being.” The court explained that the criminal

complaint against petitioner “alleged that he repeatedly

struck his stepson on the back and legs with the electrical

cord from an iron,” and that petitioner had “admitted as

much during his plea hearing.” Pet. App. 6a. The court

also observed that the complaint alleged that petitioner’s

stepson had “suffered physical injuries, including two long,

red, circular marks, and a large bruise on his thigh.” /bid.

(internal quotation marks omitted). The court concluded

that a “reasonable adjudicator easily could conclude that

6

this conduct was a form of cruelty to the child’s physical,

moral or mental well-being, and thus constituted child

abuse as defined by the BIA.” /d. at Ga-7a. Because the

court held that petitioner had been convicted of a crime of

child abuse, the court declined to reach the IJ’s alternative

holding that petitioner’s crime was also one involving moral

turpitude. Jd. at Ta.

Finally, the court rejected petitioner’s contention that

it should review the Board’s determination to apply its

AWO procedure to this case. The court relied on its prior

decision in Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004),

which held that the Board’s determination to apply its

AWO procedure is committed to agency discretion and thus

is not subject to judicial review. Pet. App. 7a.

ARGUMENT

1. Petitioner contends (Pet. 26-29) that this Court

should grant review to resolve a disagreement among the

courts of appeals on whether the courts of appeals have

jurisdiction to review a determination by the Board to apply

its AWO procedure. There is no warrant for granting

review of that question. The Court has previously denied

review of the issue, Aleru v. Gonzales, 544 U.S. 919 (2005);

Kebede v. Gonzales, 544 U.S. 947 (2005), and there is no

reason for a different result in this case.

a. Petitioner does not contend that the AWO procedure

is facially invalid under the Constitution or the Immigration

and Nationality Act (INA), 8 U.S.C. 1101 et seg. Indeed,

every court of appeals to address the question has upheld

the AWO procedures against facial statutory and consti-

tutional challenges. See Albathani v. JNS, 318 F.3d 365

(ist Cir. 2003); Zhang v. United States Dep't of Justice, 362

F.3d 155 (2d Cir. 2004); Dia v. Ashcroft, 353 F.3d 228 (3d

Cir. 2003) (en banc); Khattak v. Ashcroft, 332 F.3d 250 (4th

Cir. 2008); Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir.

i

2003) (per curiam); Denko v. INS, 351 F.3d 717 (6th Cir.

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

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

denied, 543 U.S. 987 (2004); Falcon Carriche v. Ashcroft,

350 F.3d 845 (9th Cir. 2003); Hang Kannha Yuk v. Ash-

croft, 355 F.3d 1222 (10th Cir. 2004); Mendoza v. United

States Attorney Gen., 327 F.3d 1283 (11th Cir. 2003).

Neither the Constitution nor the INA imposes a re-

quirement that appeals be heard by multi-member panels.

The INA provides only that an IJ shall inform an alien of

“the right to appeal” the IJ’s order of removal, 8 U.S.C.

1229a(c)(4), and that the IJ’s “order of deportation”

becomes final upon the earlier of “a determination by the

Board of Immigration Appeals affirming such order” or the

expiration of time in which to take an appeal, 8 U.S.C.

1101(a)(47). The government thus could, consistent with

the INA, simply provide that all appeals from orders of

removal are to be adjudicated by a single member of the

Board, as is the case in many other administrative schemes.

See Vermont Yankee Nuclear Power Corp. v. NRDC, 435

U.S. 519, 543 (1978) (“agencies should be free to fashion

their own rules of procedure,” so long as not proscribed by

Congress) (internal quotation marks omitted). Cf., e.g.,

7 C.F.R. 1.132, 1.145 (providing that decisions of admini-

strative law judges are appealed to a single “judicial

officer” acting for the Secretary of Agriculture). There

could be no constitutional doubt as to the propriety of such

a regulation. See Albathani, 318 F.3d at 375 (observing

that, even when the Board streamlines a case, the alien still

has a right to a full and fair asylum hearing before the IJ,

the opportunity to present her arguments to the Board, and

a decision by a Board member); Falcon Carriche, 350 F.3d

at 850 (noting that the argument that aliens are “entitled to

an additional procedural safeguard—namely, review of

8

their appeal before three members of the BIA”—has “no

support in the law”).

Nor does anything in the INA or the Constitution

require that the Board state its reasoning in a separate

written opinion, rather than affirm on the basis of the IJ’s

own explanation of its holding. Indeed, even before the

Attorney General adopted formal streamlining procedures,

the Board (sitting in three-member panels) would

frequently affirm on the basis of the IJ’s opinion. The

courts of appeals had uniformly upheld that practice, noting

that, in such circumstances, the court was able to review the

opinion of the IJ. See, e.g., Singh-Kaur v. INS, 183 F.3d

1147, 1150 (9th Cir. 1999) (“When the BIA adopts an IJ’s

findings and reasoning, we review the IJ’s opinion as if it

were the opinion of the BIA.”); Dobrican v. INS, T7 F.3d

164, 167 (7th Cir. 1996) (“[WJhere the BIA adopts the

reasoning of the IJ, we have held that the BIA adequately

explains its decision when it adopts the IJ’s decision, and

we base our review solely on the IJ’s analysis.”); Prado-

Gonzalez v. INS, 75 F.3d 631, 682 (11th Cir. 1996) (“[E]very

_ court of appeals that has considered this issue (the Second,

Fourth, Fifth, Seventh, Eighth, Ninth and Tenth Circuits)

has held that the Board need not write a lengthy opinion

that merely repeats the immigration judge’s reasons for

denying the requested relief, but instead may state that it

affirms the immigration judge’s decision for the reasons set

forth in the decision.”) (collecting cases). These observa-

tions are equally valid regarding the AWO procedure,

pursuant to which, when the Board affirms without opinion,

the IJ’s decision is the final agency determination. See

8 C.F.R. 1008.1(e)(4)(ii).

b. As petitioner observes (Pet. 10-20), the courts of

appeals have taken differing approaches in addressing

whether the Board’s decision to apply its AWO procedure

9

in a particular case is subject to judicial review. The extent

of disagreement among the circuits, however, is essentially

confined to narrow circumstances not implicated here, and

does not, in any event, warrant review by this Court.

i. The court of appeals correctly concluded that the

Board’s use of its AWO procedure is not subject to judicial

review. In the court’s previous opinion in Ngure v.

Ashcroft, 367 F.3d 975 (8th Cir. 2004), the court provided a

number of reasons in support of its conclusion that the

Board’s determination to utilize the AWO procedures in a

particular case is “committed to agency discretion and not

subject to judicial review,” zd. at 983.

First, the court recognized that, in light of separation of

powers principles and deference to Executive expertise—

which is especially appropriate in the immigration

context—“agencies should be free to fashion their own

rules of procedure” for discharging their many duties.

Ngure, 367 F.3d at 983 (quoting Vermont Yankee Nuclear

Power Corp., 435 U.S. at 543).

' Second, the court determined from “the text, structure,

and history of the streamlining regulations” that the

Attorney General “surely did not intend to create sub-

stantive rights for aliens,” Ngure, 367 F.3d at 983, or “to

confer important procedural benefits upon individuals,” id.

at 984 (quoting American Farm Lines v. Black Ball

Freight Serv., 397 U.S. 532, 538 (1970)), by promulgating

the AWO regulation. To the contrary, “judicial review of

the BIA’s streamlining decision would have ‘disruptive

practical consequences’ for the Attorney General’s admini-

stration of the alien removal process.” /bid. (quoting

Southern Ry. v. Seaboard Allied Milling Corp., 442 U.S.

444, 457 (1979)); see zd. at 985 (“It has never been thought

that the Supreme Court would review the propriety of this

court’s decision to affirm a district court without opinion

10

* * * | as opposed to the merits of the underlying decision,

and we see no reason to believe that the Department of

Justice intended its comparable rule to have a different

effect.”).

Third, the court of appeals reasoned that the Board’s

decision to apply the AWO procedure to a particular case

was not susceptible to a “meaningful and adequate

standard of review.” Ngure, 367 F.3d at 985. The court

compared the issue to that addressed in JCC v. Brotherhood

of Locomotive Eng’rs, 482 U.S. 270 (1987), in which this

Court held that it would not separately review the ICC’s

decision declining to reopen a prior action on grounds of

material error, because such review would merge with the

Court’s review of the underlying merits. Jd. at 279.

Fourth, the court observed that the decision whether a

particular case presented a sufficiently “substantial” issue

to “warrant[] the issuance of a written opinion” required

the exercise of the Board member’s own knowledge about

the Board’s limited resources and expertise as to whether

a published decision in a particular case, as compared with

others that might present the same issue, would advance

the overall administration of the Attorney General’s adjudi-

cation program and the development of immigration law.

Ngure, 367 F.3d at 986.

Additional considerations confirm that the Attorney

General did not intend to create private rights by adopting

the AWO procedures. Rather, their purpose was to

facilitate the efficient internal functioning of the agency.

See 64 Fed. Reg. at 56,138 (“The streamlining system will

allow the Board to manage its caseload in a more timely

manner while permitting it to continue providing nation- -

wide guidance through published precedents in complex

cases involving significant legal issues.”); 67 Fed. Reg. at

54,888 (comparing the determination whether to issue a

11

written opinion to a court of appeals’ decision whether to

publish an opinion). Indeed, the internal administrative

character of the regulation is confirmed by the subsection’s

heading—‘“[c]ase management system.” 8 C.F.R. 1003.1(e).

Furthermore, the regulation specifies that the member

should use the AWO procedure “(i]f the Board member

determines” that the criteria are satisfied, 8 C.F.R.

1003.1(e)(4)(i) (emphasis added), not whether the criteria

are satisfied, thus underscoring that the decision whether

to utilize the AWO procedure is one for the judgment and

discretion of the Board member alone. See Webster v. Doe,

486 U.S. 592, 600 (1988) (authorization under 50 U.S.C.

403(c) (1988) to terminate CIA employees whenever the

Director of Central Intelligence “‘shall deem such termi-

nation necessary or advisable’ * * * not simply when the

dismissal 7s necessary or advisable,” “appears * * * to

foreclose the application of any meaningful judicial stan-

dard of review”).

Moreover, the regulation’s express statement that the

IJ’s opinion becomes “the final agency determination,” and

the provision that the single Board member will not make

~ any statement apart from specifying that the decision of the

IJ will be the final agency decision, 8 C.F.R. 1003.1(e)(4)(ii),

make clear that the Attorney General intended the courts

of appeals to review the underlying decision of the IJ rather

than that of the single Board member. See Tsegay v.

Ashcroft, 386 F.3d 1347, 1357 (10th Cir. 2004) (noting that

the only way to review the Board member’s decision to

apply the AWO procedure would be by “first remanding the

case for an expanded explanation of why the BIA chose to

apply the AWO regulation,” which “would require the BIA

to do exactly what it is prohibited from doing when it

affirms without opinion”). Indeed, the Attorney General’s

explanation of the AWO procedures explicitly states that

12

“(flor purposes of judicial review * * * the Immigration

Judge’s decision becomes the decision reviewed.” 64 Fed.

Reg. at 56,138. The Attorney General’s view that his own

AWO regulations create no judicially-enforceable rights is

“controlling,” since it is neither “plainly erroneous [nor

inconsistent with the regulation.” Auer v. Robbins, 519

U.S. 452, 461 (1997) (citation omitted).

ii. In agreement with the Eighth Circuit’s decision in

Ngure, the Second Circuit and Tenth Circuit have likewise

held that they lack jurisdiction to review the Board’s

determination to apply its AWO procedure. See Kambolli

v. Gonzales, 449 F.3d 454 (2d Cir. 2006); Tsegay, 386 F.3d

at 1337 (10th Cir.).

As petitioner observes (Pet. 10), the Fifth and First

Circuits, in Zhu v. Ashcroft, 382 F.3d 521, 527 (5th Cir.

2004), and Haoud v. Ashcroft, 350 F.3d 201, 205-206. (1st

Cir. 2003), have addressed the reviewability of an AWO

determination in a particular circumstance not present in

this case. Both Zhu and Haoud were cases in which it was

unclear whether the Board had affirmed the IJ’s order de-

nying asylum on the ground that the asylum application

was untimely, in which case the court of appeals could not

review the determination, see 8 U.S.C. 1158(a)(3), or be-

cause it found the standard for asylum unmet, which would

be subject to review, 8 U.S.C. 1252(a)(2)(B)(ii). See Zhu,

382 F.3d at 527; Haoud, 350 F.3d at 206. In such a circum-

stance, the Fifth Circuit was of the view that it would find

itself in “a jurisdictional conundrum,” Zhu, 382 F.3d at 527,

not knowing whether it had jurisdiction, and that a remand

to the Board thus would be appropriate. See also Lanza v.

Ashcroft, 389 F.3d 917, 932 (9th Cir. 2004) (remanding in

same situation); San Pedro v. Ashcroft, 395 F.3d 1156, 1157-

1158 (9th Cir. 2005) (same). That “jurisdictional conun-

13

drum” is not present in this case, and petitioner does not

contend otherwise.”

Petitioner does argue (Pet. 26-27) that the decision be-

low conflicts with the Third Circuit’s decision in Smriko v.

Ashcroft, 387 F.3d 279 (2004). That contention lacks merit.

The Third Circuit held in Smriko that, in certain narrow

situations, review of the Board’s AWO determination is

appropriate. See id. at 296-297. The Third Circuit empha-

sized in Smriko, however, that it did not endorse a general

practice of reviewing the Board’s determination to apply its

AWO procedure separate from the underlying merits. On

the contrary, the Third Circuit recognized that, even on its

view, “(ijn many situations * * * a streamlining decision

* * * will have no material impact on a court’s exercise of

its judicial review function” and, in such cases, “the review-

ing court may simply choose to address the merits of the

IJ’s decision without resolving the procedural challenge.”

Id. at 296; see also Chong Shin Chen v. Ashcroft, 378 F.3d

1081, 1088 (9th Cir. 2004) (explaining that “in most cases”

review of the Board’s determination to apply its AWO pro-

cedure and of the IJ’s decision on the merits “collapse into

one analysis”) (citation and internal quotation marks omit-

ted).°

* The particular problem confronted in Zhu and Haoud would not

warrant review by this Court in any event. As the government ex-

plained in its briefs in opposition (at 15) in Aleru v. Gonzales (No. 04-

670), and (at 20) in Kebede v. Gonzales (No. 04-280), the Board has al-

tered its practices and has determined that in cases where the IJ’s dec-

ision rests on both reviewable and nonreviewable grounds for denying

relief from removal, AWO procedures should not be applied.

* The Sixth and Seventh Circuits have assumed, without deciding the

question, that they have jurisdiction to review the Board's decision to

apply its AWO procedure; but those courts have recognized that their

review of the AWO decision, if it is separately reviewable, would

generally merge with review of the merits. See Denko v. INS, 351 F.3d

14

Separate review would only be necessary, according to

the Third Circuit in Smriko, in situations like those ad-

dressed in Zhu and Haoud, see Smriko, 387 F.3d at 296-

297, or situations that otherwise have a “material impact on

a court’s exercise of its judicial review function,” id. at 296.

The Third Circuit concluded that the circumstances in

Smriko fell into the latter category because the IJ had

failed adequately to address the novel and difficult issue of

statutory interpretation raised by the petition and there

was no Board interpretation of the statute, and the court

thus would be “left to interpret the statute without the

[Board] having provided its Chevron deference-entitled ‘con-

crete meaning’ to an ambiguous statute.” Jd. at 297; see zd.

at 289. The court sought to avoid “building case law that is.

fashioned without the benefit of agency expertise” and

“usurping the role of the [Board] and establishing a prece-

dent that the Board’s expertise might counsel against.” Jd.

at 297; see Chong Shin Chen, 378 F.3d at 1088 (although in

most cases merits review of IJ’s decision and review of

Board’s AWO decision would collapse into one analysis,

remand for the Board to consider an issue “in the first in-

stance” is warranted when the court is “confronted with a

novel legal issue”). Cf. Haoud, 350 F.3d at 207 (IJ had not

been able to consider seemingly applicable Board precedent

that postdated IJ’s decision).

Unlike the Third Circuit in Smriko, the court of appeals

below did not confront a situation in which the Board had

failed to interpret an ambiguous statutory term and the

court thus would be left to construe the statute in the first

717, 732 (6th Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.

2003). The Fourth Circuit has concluded that the proper remedy for an

erroneous AWO decision is judicial review of the merits by the court of

appeals to correct the error. See Blanco de Belbruno v. Ashcroft, 362

F.3d 272, 281 (4th Cir. 2004).

15

instance. Rather, the court of appeals explained that the

Board had interpreted the term “child abuse” to encompass

“any form of cruelty to a child’s physical, moral, or mental

well-being.” Pet. App. 5a. The court then reviewed the IJ’s

decision to examine whether petitioner’s crime fit within

that definition. Id. at 5a-6a. Nothing in the Third Circuit’s

decision in Smriko suggests that that court, if faced with

comparable circumstances in which the Board had inter-

preted the relevant statutory term, would nonetheless re-

view the Board’s determination to apply its AWO proce-

dure.

Finally, petitioner errs in arguing (Pet. 28) that the

court of appeals “assume[d] that it must give Chevron def-

erence to IJ opinions affirmed by AWO orders.” The court

of appeals did not accord deference to the IJ’s interpreta-

tion of the term “child abuse.” Rather, the court deter-

mined that the Board had previously construed that term,

deferred to the Board’s interpretation, and assumed that

the IJ had applied the Board’s construction. See Pet. App.

4a-5a. This case therefore raises no questions concerning

whether, when reviewing an IJ decision in a case in which

the Board applied its AWO procedure, a court should ac-

cord deference to the IJ’s interpretation of an ambiguous

statutory term. See Pet. 11, 28.

2. Petitioner contends (Pet. 29-30) that his crime did not

amount to “any form of cruelty to a child’s physical, moral

or mental well-being,” and therefore did not amount to

“child abuse” so as to render him ineligible for cancellation

* Because the court of appeals concluded that the Board had

interpreted the statutory term “child abuse,” the court, contrary to

petitioner’s suggestion (Pet. 28), did not infringe any “remand rule”

(see, ¢.g., INS v. Ventura, 537 U.S. 12 (2002)) by interpreting the

statute in the first instance instead of remanding to permit the agency

initially to construe the statute.

16

of removal. That fact-bound contention does not warrant

review.

Even if, as petitioner contends, the offense of malicious

punishment of a child under Minnesota law encompasses

both conduct amounting to child abuse and conduct that

fails to amount to “cruelty to a child’s physical, moral or

mental well-being,” the court of appeals determined that

petitioner’s crime amounted to child abuse based on an ex-

amination of the criminal complaint against petitioner and

of petitioner’s statements during his guilty plea hearing.

Pet. App. 6a. As the court explained, “the complaint al-

leged that [petitioner] repeatedly struck his stepson on the

back and legs with the electrical cord from an iron,” peti-

tioner “admitted as much during his plea hearing,” and the

complaint further alleged that petitioner’s stepson “suf-

fered physical injuries, including two long, red, circular

marks, and a large bruise on his thigh.” /bid. (internal quo-

tation marks omitted). There is no warrant for reviewing

the court of appeals’ fact-specific determination that, in

those circumstances, petitioner’s crime qualifies as a crime

of child abuse.

17

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

ALISON MARIE IGOE

Attorneys

AUGUST 2006