Opposition Brief — Arambula-Medina v. Holder

No. 09-664

Jn the Supreme Court of the Gnited States

LUIS ENRIQUE ARAMBULA-MEDINA, PETITIONER

Vv.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

TONY WEST

Assistant Attorney General

DONALD E. KEENER

SAUL GREENSTEIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a court of appeals that lacks jurisdiction to

consider a petition for judicial review challenging the

merits of a final order of removal nonetheless has juris-

diction to review the Board of Immigration Appeals’

intermediate procedural decision to resolve an adminis-

trative appeal by means of a single-member affirmance

without opinion.

(I)

TABLE OF CONTENTS

Page

EE IIL Re COE LEO Oe TET ET ROOT EEE TL TE l

ee: Sanne ace ae ge a st ew ea eke ea ad aR ee Oe Os 1]

are 2 ily ew Whig lg ASS e v8 Ao ba Oe oO ]

Es cee a a ak sa ae 4 co a we On eo a ee 7

PRESCOTT TEE OCTET TS ET CP OU TET e 16

TABLE OF AUTHORITIES

Cases:

Albathani v. INS, 318 F.3d 365 (1st Cir. 2008) ......... 10

American Farm Lines v. Black Ball Freight Serv.,

a as eh ee cka a Gea ke awn eee 13

Andazola, In re, 23 1. & N. Dec. 319 (B.1.A. 2002) ....... 5

Auer v. Robbins, 519 U.S. 452 (1997) ................- 14

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

EN fe eee ae ee a ee dS are heh ob 4 aca wo 3, 10

C-V-T-, In re, 221. & N. Dec. 7 (B.1.A. 1998) ........... 4

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

i re ee ee eee weed Shs a kes ee ee ee ee 12

Cutter v. Wilkinson, 544 U.S. 709 (2005) .............. 11

Dave v. Ashcroft, 363 F.3d 649 (7th Cir. 2004) ......... 6,8

Denko v. INS, 351 F.3d 717 (6th Cir. 2003) ......... 10, 12

Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) ........... 10

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

EE sarees 5 ie wae kd 6 Pas ee ee RE 9,10, 15, 16

Furman v. United States, 720 F.2d 263 (2d Cir. 1983) .. 10

Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003) .... 10,12

Haoud v. Ashcroft, 350 F.3d 201 (1st Cir. 2003) ........ 12

(IIT)

IV

Cases—Continued: Page

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

ee ete each Soke sane V6 Soo a8 Oe 14

Jarbough v. Attorney Gen., 483 F.3d 184 (3d Cir.

EERE ARISE gn ara Se OSAP NAN Aang te ee 8

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

Kucana v. Holder, No. 08-911 (Jan. 20, 2010) ......... 4,7

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

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

cert. denied, 543 U.S. 487 (2004) ................... 10

Mendoza v. United States Att’y Gen. , 327 F.3d 1283

UN, MI on oc 5 bn ce ak doe os eben ens ee 10

Monreal, In re, 23 1. & N. Dee. 56 (B.1.A. 2001) ......... 5

Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004)... 12, 13,14

Recinas, In re, 23 I. & N. Dec. 467 (B.1.A. 2002) ......... 5

Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003) ...... 10

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

United States v. Williums, 504 U.S. 36 (1992) ........ 11

Vermont Yankee Nuclear Power Corp. v. NRDC,

| ee re ee )

Yuk v. Ashcroft, 355 F.3d 1222 (10th Cir. 2004) ........ 7,8

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

er Ve es ey eee we te heie 4 bee LO

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

Statutes and regulations:

Administrative Procedure Act:

5 U.S.C. T01l(aX(2) ........ Perr rrr rrr me ae

es. ee ee Case ee eure e nase ee beeen eS 15

Statutes and regulations—Continued: Paye

Immigration and Nationality Act, 8 U.S.C

L101 et seq. .. - 1

8 U.S.C. 1101(a)(47)(A) 9

8 U.S.C. 1101(a)(A7)(B) . 9

8 U.S.C. 1182(a)(6)(A)() . 4,5

8 U.S.C. 1229a(c)(4) . . 8

8 U.S.C. 1229b(b)(1) ... .. 4.5

8 U.S.C. 1229b(b)(1)(D) 15

8 U.S.C. 1252(a)(1) .... 1

8 U.S.C. 1252(a)(2)(B) ... paue

8 U.S.C. 1252(a)(2)(B)G) . passim

8 U.S.C. 1252(a)(2)(D) 1,7,8,15

iC.F.R

section 1.132 9

Section 1.145 i)

8 C.F.LR.:

Section 1008.1 .... 2

Section 1003.1(b)(1)-(3) -. eae ae

Section 1003.1(e) v ; aoa

section 1003.1(e)(4) ..... passim

Section 1003.1(e)(4)G)(A) .. 3

Section 1003.L(e)(4)0)(B) . ... 0,14

section 1003.1(e)(4)() .. 3

Section 1003.1(e)(5) ...... chara ees 2

Section 1003.1(e)(6) os ee

Section 1240.53(a) see ae -

Miscellaneou Page

64 Fed. Reg. (1999)

p 56,135 a

p 26,136 oO

p. 56,138 14

67 Fed. Reg. 54.878 (2002) )

Jn the Supreme Court of the Gnited States

No. 09-664

LUIS ENRIQUE ARAMBULA-MEDINA, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-9) is

reported at 572 F.3d 824. The orders of the Board of

Immigration Appeals (Pet. App. 10-11) and the immigra

tion judge (Pet. App. 12-44) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 10, 2009. On October 1, 2009, Justice Sotomayor

extended the time within which to file a petition for a

writ of certiorari to and including December 7, 2009, and

the petition was filed on that date. 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

(1)

appeal the |J’s order to the Board of Immigration Ap

peals (BIA or Board). See 8 C.F.R. 1003.1(b)(1)-(3),

1240.53(a). Before 1999, administrative appeals from

the removal orders of IJs were heard by three-member

panels of the Board. On October 18, 1999, however, 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).

Under the streamlining regulations, all appeals

to the Board are assigned to a single Board member

for sereening and disposition “[u]nless a case meets

the standards for assignment to a three-member panel

under [8 C.F.R. 1003.1 ](e)(6).” 8 C.F.R. 10038.1(e). The

Board member determines the existence of circum

stances warranting assignment to a three-member panel

which include the “need to settle inconsistencies”

among IJ rulings; establish precedents construing laws

or regulations; and the need to resolve a case of national

import, 8 C.F.R. 1003.1(e)(6)—after the transcript

has been prepared and the appeal briefed. 8 C.F.R.

1003.1(e). If the Board member determines that the

appeal does not warrant consideration by a three

member panel, the Board member next determines

whether the appeal should be affirmed without opinion

under 8 C.F.R. 1003.1(e)(4) or resolved via a brief

single-member decision under 8 C.F.R. 1003.1(e)(5).

In particular, Section 1003.1(e)(4) provides that af-

firmance without opinion is appropriate if the case is

“squarely controlled by existing Board or federal court

precedent and dofes| not involve the application of pre-

cedent to a novel factual situation,” or “|t]he factual and

legal issues raised on appeal are not so substantial that

the case warrants the issuance of a written opinion.”

**

we

8 C.F.R. 1003.1(e)(4)(i)(A) and (B). When the BIA af-

firms without opinion, “an order approves the result

reached in the decision below; it does not necessarily

imply approval of all of the reasoning of that decision,

but does signify the Board’s conclusion that any errors

in the decision of the |I|J| or the Service were harmless

or nonmaterial.” 8 C.F.R. 1003.1(e)(4)(ii). The IJ’s deci

sion becomes the final agency determination, and the

court of appeals reviews the IJ’s decision as it would a

decision of the BIA. See, e.g., Lanza v. Ashcroft, 389

F.3d 917, 925 (9th Cir. 2004).

b. The impetus for the streamlining reform was an

explosive increase in the Board’s caseload. 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 accom

plish its mission—“to provide fair and timely immigra

tion adjudications and authoritative guidance and uni-

formity in the interpretation of the immigration laws”

had been compromised. /bid. To ameliorate that prob

lem, the Attorney General implemented the system of

streamlined appellate review. The system is premised

on the recognition that “in a significant number of ap

peals and motions filed with the Board, a single appel

late adjudicator can reliably determine that the result

reached by the adjudicator below is correct and should

not be changed on appeal.” /d. at 56,135. The result is

a system that enables the Board to render decisions in

a more timely manner, while husbanding its limited re

sources. See Blanco de Belbruno v. Ashcroft, 362 F.3d

272, 280 (4th Cir. 2004) (“[T|he agency adopted regula-

tions that would allow it to focus a greater measure of its

resources on more complicated cases.”).

4

2. a. Under the Immigration and Nationality Act

(INA), 8 U.S.C. 1101 et seq., an alien who is present in

the United States without being admitted or paroled is

removable. 8 U.S.C. 1182(a)(6)(A)(i). The Attorney

General, in his discretion, may cancel an alien’s removal

if the alien meets certain eligibility requirements. 8

U.S.C. 1229b(b)(1). To be statutorily eligible for cancel-

lation of removal, the alien must meet certain criteria,

which include establishing good moral character, contin

uous physical presence in the United States for at least

ten years, and “exceptional and extremely unusual hard

ship” resulting “to the alien’s [United States citizen or

lawful permanent resident] spouse, parent, or child.” 8

U.S.C. 1229b(b)(1)(D). In addition to satisfying the

three statutory eligibility requirements, an applicant for

cancellation of removal must establish that he warrants

such relief as a matter of discretion. Jn re C-V-T-, 22 I.

& N. Dec. 7 (B.1.A. 1998).

b. The INA generally authorizes “|j|udicial review

of a final order of removal.” 8 U.S.C. 1252(a)(1). Since

1996, however, the INA has barred judicial review of

certain discretionary decisions made by the Attorney

General, 8 U.S.C. 1252(a)(2)(B), including the denial of

an alien’s request for cancellation of removal under Sec-

tion 1229b, see 8 U.S.C. 1252(a)(2)(B)(i). See generally

Kucana v. Holder, No. 08-911 (Jan. 20, 2010), slip op. 3

& n.2, 11, 12-13. In 2005, Congress qualified this juris-

dictional bar by providing that Section 1252(a)(2)(B)

does not preclude review of “constitutional claims or

questions of law.” 8 U.S.C. 1252(a)(2)(D).

2. Petitioner is a native and citizen of Mexico who

illegally entered the United States at or near El Paso,

Texas, on or about December 23, 1991. Pet. App. 2, 13.

In October 2006, the Department of Homeland Security

9)

(DHS) initiated removal proceedings against petitioner,

charging him with removability under 8 U.S.C.

1182(a)(6)(A)(i), as an alien present in the United States

without being admitted or paroled. Pet. App. 2, 18. Pe-

titioner conceded that he is removable as charged, and

sought relief in the form of cancellation of removal un-

der 8 U.S.C. 1229b(b)(1). Pet. App. 2-3.

Petitioner’s hearing on his application for cancella-

tion of removal took place on August 23, 2007.’ Pet.

App. 4. On November 15, 2007, the IJ issued a written

opinion denying petitioner’s application. Jd. at 12-44.

Assessing the evidence of record under three preceden-

tial Board decisions explicating Section 1229b(b)(1)(D)’s

requirement that petitioner establish that removal

would result in “exceptional and extremely unusual

hardship” to a qualifying relative, see Jn re Monreal, 23

I. & N. Dec. 56 (B.1.A. 2001), Jn re Andazola, 23 1. &N.

Dec. 319 (B.1.A. 2002), and In re Recinas, 23 1. & N.

Dec. 467 (B.I.A. 2002), the [J concluded that petitioner

had failed to establish that such hardship would result

to his legal permanent resident mother. Pet. App. 31-42.

Petitioner appealed the IJ’s decision to the Board,

contending that the IJ erred in holding that his removal

would not result in “exceptional and extremely unusual

hardship” to his mother. Administrative Record 6-12

(A.R.). Petitioner further argued that the IJ failed to

properly apply the Board’s decisions in Monreal,

Andazola, and Recinas. A.R. 12-16. On November 24,

2008, the Board affirmed the IJ’s decision without opin-

ion. Pet. App. 10-11.

' The record in this case consists of testimony from petitioner and

five witnesses, as well as numerous documents proffered to support pe-

titioner’s claim that he satisfied all of the statutory requirements for

cancellation of removal. Administrative Record 65-381.

6

3. a. Petitioner filed a petition for judicial review of

the Board’s decision. Petitioner’s primary contention

was that the IJ’s denial of cancellation of removal vio-

lated petitioner’s right to due process because it was

based on erroneous factual findings and the IJ incor-

rectly applied Board precedent. Pet. C.A. Br. 18-19. In

addition, petitioner argued that his due process rights

were violated because “the BIA summarily dismissed his

appeal ‘without commenting or otherwise addressing

any of the identified issues.’” Pet. App. 7 (quoting Pet.

C.A. Br. 16).

b. The court of appeals dismissed the petition for

lack of jurisdiction under Section 1252(a)(2)(B)(i). The

court first observed that its jurisdiction was limited to

reviewing “constitutional claims and questions of law.”

Pet. App. 7 (citation and internal quotation marks omit-

ted). Petitioner, the court noted, had accordingly at-

tempted to frame his arguments as due process chal-

lenges to the IJ’s decision. /bid. The court rejected peti-

tioner’s due process arguments, holding that petitioner’s

right to due process was not violated because he lacked

a “liberty or property interest in obtaining purely dis-

cretionary relief.” /d. at 8 (quoting Dave v. Ashcroft,

363 F.3d 649, 653 (7th Cir. 2004)). The court concluded

that “‘because cancellation of removal is a form of dis-

cretionary relief,’ petitioner ‘[could] not raise a due pro-

cess challenge to [the] denial of his application for can-

cellation of removal.’” /bid. (emphasis omitted) (quot-

ing Dave, 363 F.3d at 653).

The court also stated that even if petitioner “could

invoke due process,” it was “not persuaded that any of

the purported violations he has identified have merit.”

Pet. App. 8. Specifically, the court rejected petitioner’s

argument that the Board’s affirmance without opinion

7

violated due process, observing that “the process em-

ployed by the [Board] in petitioner’s case, i.e., of having

a single member affirm, without opinion, the IJ’s deci-

sion, is clearly authorized by regulation.” Jd. at 9 (citing

8 C.F.R. 1003.1(e)(4)). The court noted that “petitioner

has failed to explain how this procedure could possibly

give rise to a due process violation when * * * ‘{a]jn

alien has no constitutional right to any administrative

appeal at all.’” /bzd. (brackets in original) (quoting Yuk

v. Ashcroft, 355 F.3d 1222, 1229 (10th Cir. 2004)).

ARGUMENT

Petitioner argues that the court of appeals had juris-

diction to review whether the Board violated its own

regulations in affirming petitioner’s administrative ap-

peal without an opinion under 8 C.F.R. 1003.1(e)(4). The

Board’s application of the streamlining regulations, peti-

tioner contends, is not committed to agency discretion

by law under the Administrative Procedure Act (APA),

5 U.S.C. 701(a)(2). Pet. 6-8. Petitioner did not raise this

contention before the court of appeals, and the court did

not address it. As a result, the conflicts among the

courts of appeals that petitioner asserts are not impli-

cated by this case. Further review is unwarranted.

1. a. The court of appeals correctly held that un-

der 8 U.S.C. 1252(a)(2)(B)Gi), it had no jurisdiction

to review the BIA’s denial of petitioner’s application

for cancellation of removal. Pet. App. 7 (citing 8 U.S.C.

1252(a)(2)(D)). The INA provides that “no court

shall have jurisdiction to review * * * any judg-

ment regarding the granting of relief” under Section

1229b, which governs cancellation of removal. 8 U.S.C.

1252(a)(2)(B)(i); see Kucana v. Holder, No. 08-911 (Jan.

20, 2010), slip op. 12-13.

8

The court of appeals also correctly found that peti-

tioner could not avail himself of the statutory exception

permitting federal-court review of “constitutional claims

or questions of law.” 8 U.S.C. 1252(a)(2)(D). Pet. App.

7. The court.correctly rejected petitioner’s attempt to

recast as due process claims his challenges to the IJ’s

factual findings and his discretionary decision denial of

discretionary relief, reasoning that petitioner had no

entitlement to discretionary relief and therefore could

not raise “a due process challenge to [the] denial of his

application for cancellation of removal.” /d. at 8 (brack-

ets in original) (citing Dave v. Ashcroft, 363 F.3d 649,

652-653 (7th Cir. 2004)). In addition, as the court noted,

ibid., petitioner’s primary arguments were simply chal-

lenges to the IJ’s factual findings and its discretionary

decision, and recasting such contentions as due process

claims is “insufficient to give [the] Court jurisdiction

under [Section] 1252(a)(2)(D).” Jd. at 8-9 (citing

Jarbough v. Attorney Gen., 483 F.3d 184, 190 (3d Cir.

2007)).

b. The court of appeals also correctly rejected peti-

tioner’s argument that the BIA’s affirmance without

opinion under 8 C.F.R. 1003.1(e)(4) violated his due pro-

cess rights. Neither the Constitution nor the INA im-

poses a requirement that appeals be affirmed by opinion

or heard by multi-member panels. Aliens have no con-

stitutional right to an administrative appeal of removal

orders, and therefore no due process right to a particu-

lar procedure for considering appeals. Pet. App. 9 (cit-

ing Yuk v. Ashcroft, 355 F.3d 1222, 1229 (10th Cir.

2004)). Nor does the INA impose any requirements con-

cerning the procedure for administrative appeals; it sim-

ply provides 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),

9

and of the fact that the I.J’s order of removal will become

final if an appeal is not taken, 8 U.S.C. 1101(a)(47)(A)

and (B).

In addition, this Court has made clear that “adminis-

trative agencies should be free to fashion their own rules

of procedure and to pursue methods of inquiry capable

of permitting them to discharge their multitudinous du-

ties.” See Vermont Yankee Nuclear Power Corp. v.

NRDC, 435 U.S. 519, 543 (1978) (citation and internal

quotation marks omitted). The government thus could,

consistently with due process and the INA, 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 F’alcon Carriche v.

Ashcroft, 350 F.3d 845, 850 (9th Cir. 2003) (noting that

even when the Board streamlines a case, the alien still

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

well as the opportunity to present his arguments to the

Board for a decision by a Board member, and that the

argument that aliens are “entitled to an additional pro-

cedural safeguard” has “no support in the law”); cf., e.g.,

7 C.F.R. 1.182, 1.145 (providing that decisions of admin-

istrative law judges are appealed to a single “judicial

officer” acting for the Secretary of Agriculture).”

* Although petitioner suggests (Pet. 28-29) that streamlining has

particularly severe effects in cases like this one, in which the court of

appeals has no jurisdiction to review the Board's final order, petitioner

received an extensive hearing before the IJ and a full opportunity to

brief his appeal before a member of the BLA. See Falcon Carriche, 350

F.3d at 845-850 (rejecting due process challenge to streamlining regu-

lations in case in which the court had no jurisdiction to review decision

denying cancellation of removal). In addition, the fact that the BIA

member affirms without opinion does not suggest that the BLA member

gave less than full and fair consideration to the issues raised. Cf.

10

The court of appeals’ conclusion that the BIA’s pro-

cedure for affirming certain appeals without opinion

does not give rise to due process concerns is consistent

with the decisions of all of the other courts of appeals to

consider the issue. See Falcon Carriche, 350 F.3d at 845

(noting that affirmance without opinion pursuant to

streamlining regulations does not impede court’s ability

to review IJ’s findings and conclusions); see also, e.g.,

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

157-158 (2d Cir. 2004) (noting that appellate courts reg-

ularly issue summary affirmances); Blanco de Belbruno

v. Ashcroft, 362 F.3d 272 (4th Cir. 2004); Albathani v.

INS, 318 F.3d 365, 375-378 (1st Cir. 2003); Dia v.

Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en bane); Soadjede

v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 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, 708-709 (8th Cir. 2003), cert.

denied, 543 U.S. 487 (2004); Mendoza v. United States

Att’y Gen., 327 F.3d 1283 (11th Cir. 2003).

2. Petitioner’s sole contention before this Court

(Pet. i, 31-36) is that, notwithstanding the court of ap-

peals’ holding that it lacked jurisdiction under Section

1252(a)(2)(B)(i) to review petitioner’s challenges to

the BIA’s final order, the court had jurisdiction to re-

view the Board’s antecedent procedural ruling that peti-

tioner’s administrative appeal should be affirmed with-

out opinion, rather than processed under one of

the other procedures set forth in the streamlining regu-

lations. Petitioner argues that the court had jurisdic-

tion to review the BIA’s compliance with 8 C.F.R.

Furman v. United States, 720 F.2d 263, 265 (2d Cir. 1983) (per curiam)

(considering summary orders by the court of appeals).

11

1003.1(e)(4) because it is a question of law under Section

1252(a)(2)(D), and the APA provides jurisdiction to re-

view agency actions that are not “committed to agency

discretion by law,” 5 U.S.C. 701(a)(2).

Petitioner did not raise this argument below, see Pet.

C.A. Br. 4-6, 34-42, and the court of appeals did not ad-

dress it. Rather, the court held only that it had no juris-

diction over petitioner’s general challenge to the merits

of the IJ’s final order denying cancellation of removal

under Section 1252(a)(2)(B)G). This Court thus has no

decision before it to review on the issue petitioner seeks

to raise, and it should decline to consider petitioner’s

contentions in the first instance. See, e.g., United States

v. Williams, 504 U.S. 36, 41 (1992) (this Court ordinarily

does not consider questions not pressed or passed upon

below); Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)

(“[W]e are a court of review, not of first view.”’).

In addition, because the court of appeals did not ad-

dress whether it had jurisdiction to review the BIA’s

application of the criteria set forth in & C.F.R.

1003.1(e)(4), the asserted circuit conflict that petitioner

identifies is not implicated by this case. All of the deci-

sions that petitioner describes as creating a circuit con-

flict addressed the question whether, when the court

had jurisdiction to review the alien’s challenges to the

BIA’s final removal order, the court also had jurisdiction

to review the BIA’s decision that the administrative ap-

peal should be processed under 8 C.F.R. 1003.1(e)(4)—

rather than under any of the other procedures set forth

in the streamlining regulation—or whether the stream-

lining decision was committed to agency discretion un-

der the APA, 5 U.S.C. 701(a)(2), and therefore unreview-

able. See, e.g., Smriko v: Ashcroft, 387 F.3d 279, 294-296

(3d Cir. 2004) (where court had jurisdiction over final

12

BIA order, holding that review of BIA’s decision that

streamlining was appropriate was available under the

APA); Chong Shin Chen v. Ashcroft, 378 F.3d 1081, 1088

(9th Cir. 2004) (holding that court could review propri-

ety of decision to affirm without opinion where that deci-

sion was based on the conclusion that no novel legal is-

sue was raised); Haoud v. Ashcroft, 350 F.3d 201, 205

(1st Cir. 2003) (suggesting that BIA’s decision that peti-

tioner’s case was appropriate for streamlining was not

committed to agency discretion; remanding for explana-

tion when affirmance without opinion made it impossible

to discern whether BIA’s removal order rested on a

ground reviewable under the INA); Kambolli v. Gonza-

les, 449 F.3d 454, 458 (2d Cir. 2006) (stating, after con-

cluding that alien’s asylum claims were meritless, that

streamlining decision was unreviewable because it is

committed to agency discretion); Ngure v. Ashcroft, 367

F.3d 975, 983 (8th Cir. 2004) (in asylum case, stating

that in certain circumstances, decision to streamline “a

particular case is committed to agency discretion and

not subject to judicial review”); Tsegay v. Ashcroft, 386

F.3d 1347, 1855-1356 (10th Cir. 2004) (holding, in asylum

case, that streamlining decision is committed to agency

discretion).*

* In three of the decisions on which petitioner relies, the court did not

decide whether a decision that an appeal should be resolved under 8

C.F.R. 1003.1(e)(4) was reviewable. See Zhu v. Ashcroft, 382 F.3d 521

(5th Cir. 2004) (remanding to BIA because court could not discern

whether BIA’s decision rested on a reviewable basis, without deciding

whether application of streamlining was reviewable); Denko, 351 F.3d

at 732 (assuming without deciding that streamlining decision was re-

viewable because that question did not matter to outcome); Georgis, 328

F.3d 967 (declining to decide issue because it made no practical differ-

ence and court could review IJ’s denial of asylum).

13

The decision below, in contrast, rests solely

on the ground that the court lacked jurisdiction over

petitioner’s challenges to the BIA’s discretionary deci-

sion to deny cancellation of removal under Section

1252(a)(2)(B)(i). It does not address the question of

a court of appeals’ jurisdiction to review a single Board

member’s decision to streamline a case. Therefore, even

if that issue otherwise warranted review by this Court,

this case would not provide a vehicle in which to do so.‘

3. In any event, petitioner’s argument that the court

of appeals had jurisdiction to review the Board’s compli-

ance with the streamlining regulations does not have

merit.

a. Contrary to petitioner’s argument (Pet. 33-36),

the Board’s application of the streamlining regulations

is committed to agency discretion by law. 5 U.S.C.

701(a)(2). Regulations that govern the “agency’s deci-

sion about how to allocate its scarce resources to accom-

plish its complex mission,” rather than creating individ

ual rights or entitlements, are “traditionally * * * free

from judicial supervision.” Ngure, 367 F.3d at 983. The

streamlining regulations fall into this category: they are

directed to the agency’s internal administration and are

designed to assist the agency in carrying out its func-

tions, American Farm Lines v. Black Ball Freight

* Petitioner also argues (Pet. 19-23) that this Court should grant re-

view in order to provide guidance regarding an asserted circuit conflict

concerning whether courts of appeals may review a single BIA mem-

ber’s refusal to refer an appeal to a three-judge panel under 8 C.F.R.

1003.1(e)(6). Petitioner did not raise before the court of appeals any

challenge to the BIA’s compliance with its regulations in deciding not to

refer his appeal to a three-member panel, see Pet. C.A. Br. 16 (stating

that referral to a panel is “within the sole jurisdiction of the Board”),

and therefore this contention does not merit review.

14

Serv., 397 U.S. 532, 539 (1970); they are not intended to

confer procedural or substantive rights on individuals,

see 64 Fed. Reg. at 56,138 (regulations will “allow the

Board to manage its caseload”). Indeed, the regulations

provide that when the Board utilizes the affirmance-

without-opinion procedure, “for purposes of judicial re-

view * * * the [IJ’s] decision becomes the decision re-

viewed.” J/bid. The Attorney General’s view that the

streamlining regulations create no judicially enforceable

rights is “controlling,” as it is neither “plainly erroneous

[njor inconsistent with the regulation.” Auer v. Robbins,

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

In addition, the Board’s decision to apply the

affirmance-without-opinion procedure to a particular

case is not susceptible to a “meaningful and adequate

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

determining whether the appeal is governed by Board

precedent or presents substantial legal issues, see 8

C.F.R. 1003.1(e)(4), would necessarily implicate review

of the merits of the Board’s denial of relief. See JCC v.

Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 279

(1987) ([CC’s decision not to reopen a prior action on

grounds of material error would merge with review of

the merits and was therefore not independently

reviewable).

Finally, a Board member’s decision that a particular

case presents a sufficiently “substantial” issue to war-

rant a written opinion, 8 C.F.R. 1003.1(e)(4)(i)(B), rests

on the Board member’s knowledge about the Board’s

limited resources, and her expertise as to whether

a published decision in a particular case, rather than

in other cases presenting the same issue, would advance

the administration of the immigration system and

the development of the law. See Ngure, 367 F.3d at 986.

1b

The determination to affirm without opinion is therefore

committed to agency discretion by law. 5 U.S.C.

701(a)(2).

b. Even if petitioner were correct that the BIA’s

application of 8 C.F.R. 1103.1(e)(4) is not committed to

agency discretion, the court of appeals would have

lacked jurisdiction to review the BIA’s streamlining de

cision for an independent reason.

The APA restricts judicial review to “final agency

action,” 5 U.S.C. 704, and the BIA’s decision to adjudi-

cate petitioner’s administrative appeal under 8 C.F.R.

1003.1(e)(4) was an interlocutory procedural decision.

Although the APA provides that a procedural agency

action or ruling “is subject to review on the review of the

final agency action,” 5 U.S.C. 704, here the INA ex

pressly deprived the court of appeals of jurisdiction to

review the final agency action. See 8&8 U.S.C.

1252(a)(2)(B)G). Beeause the court held that it lacked

jurisdiction to review petitioner’s challenges to the final

agency decision in this case, it also would have lacked

jurisdiction to review the intermediate procedural deci

sion concerning streamlining that preceded the final

order. See Falcon Carriche, 350 F.3d at 854 (“Because

we lack jurisdiction to review the merits of [the alien’s

challenge to] the IJ’s discretionary decision regarding

* * * cancellation of removal[,|] * * * we are also

without jurisdiction to evaluate whether streamlining

was appropriate.”).

Petitioner contends (Pet. 33) that he may invoke Sec

tion 1252(a)(2)(D)’s exception to the jurisdictional bar to

raise a legal challenge to the procedural decision under

8 C.F.R. 1003.1(e)(4), even though the court lacks juris

diction over petitioner’s challenges to the Board’s final

action. But reviewing the Board’s compliance with the

lo

criteria set forth in 8 C.F’.R. 1003.1(e)(4)—Ifor instance,

whether the issue is governed by BIA precedent and

does not raise substantial factual issues, 8 C.F-.R.

1003.1(e)(4)—-would essentially require the court to re

view the merits of the [J’s discretionary decision to deny

cancellation of removal. That is precisely what Con

gress precluded in Section 1252(a)(2)(B)(i). See Falcon

Carriche, 350 F.3d at 853-854.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted

ky} LENA KAGAN

Solicitor General

TONY WEST

issistant Attorn y General

DONALD E. KEENER

SAUL GREENSTEIN

Attorney

MARCH ?010