Chong Shin Chen v. John Ashcroft, Attorney General

378 F.3d 1081, 2004 U.S. App. LEXIS 16411, 2004 WL 1774754

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 2004
• Docket: 02-73473
• Status: Published

Opinions

THOMAS, Circuit Judge:

In this petition for review, we consider whether the summary affirmance of an Immigration Judge’s (“IJ”) decision by the Board of Immigration Appeals (“BIA”) violated the BIA’s streamlining regulations. We conclude that because the legal issue presented was not squarely controlled by existing BIA or federal court precedent, the BIA erred in summarily affirming the IJ’s decision: We grant the petition for review and remand the petition to the BIA.

I

Chong Shin Chen, a native and citizen of the People’s Republic of China, entered the United States without inspection on December 15, 1989. A day later, he was taken into custody by the Immigration and Naturalization Service (“INS”), served with an Order to Show Cause charging that he was deportable from the United States, and released on bond. His case was administratively closed when he did not show up for a scheduled hearing.

In August 1990, William S. Slattery, District Director of the INS, informed Chen by letter that the Attorney General had granted Chen “deferred enforced departure” status pursuant to Executive Order 12,711 until January 1, 1994. The communication also apprised Chen that: “You have the right to apply for any immigration benefit for which you believe you may be eligible even though you are in this program.”

Executive Order 12,711, under which Chen was granted deferred enforced departure status, was issued by President George H.W. Bush on April 11, 1990, in the wake of the Tiananmen Square uprising in Beijing, China. It provided:

By the authority vested in me as President by the Constitution and laws of the United States of America, the Attorney General and the Secretary of State are hereby ordered to exercise their authority, including that under the Immigration and Nationality Act (8 U.S.C. 1101— 1557), as follows:

Section 1. The Attorney General is directed to take any steps necessary to defer until January 1, 1994, the enforced departure of all nationals of the People’s Republic of China (PRC) and their dependents who were in the United States on or after June 5, 1989, up to and including the date of this order (hereinafter “such PRC nationals”).

Sec. 2. The Secretary of State and the Attorney General are directed to take all steps necessary with respect to such PRC nationals (a) to waive through January 1, 1994, the requirement of a valid passport and (b) to process and provide necessary documents, both within the United States and at U.S. consulates overseas, to facilitate travel across the borders of other nations and reentry into the United States in the same status such PRC nationals had upon departure.

Sec. 3. The Secretary of State and the Attorney General are directed to provide the following protections: (a) irrevocable waiver of the 2-year home country residence requirement that may be exercised until January 1, 1994, for such PRC nationals; (b) maintenance of lawful status for purposes of adjustment of status or change of nonimmigrant status for such PRC nationals who were in lawful status at any time on or after June 5, 1989, up to and including the date of this order; (c) authorization for employment of such PRC nationals through January 1, 1994; and (d) notice of expiration of nonimmigrant status (if applicable) rather than the institution of deportation proceedings, and explanation of options available for such PRC nationals eligible for deferral of enforced departure whose nonimmigrant status has expired.

Sec. 4. The Secretary of State and the Attorney General are directed to provide for enhanced consideration under the immigration laws for individuals from any country who express a fear of persecution upon return to their country related to that country’s policy of forced abortion- or coerced sterilization, as implemented by the Attorney General’s regulation effective January 29,1990.

Sec. 5. The Attorney General is directed to ensure that the Immigration and Naturalization Service finalizes and makes public its position on the issue of training for individuals in F-l visa status and on the issue of reinstatement into lawful nonimmigrant status of such PRC nationals who have withdrawn their applications for asylum.

Sec. 6. The Departments of Justice and State are directed to consider other steps to assist such PRC nationals in them efforts to utilize the protections that I have extended pursuant to this order.

Sec. 7. This order shall be effective immediately.

The effect of the Executive Order was, under the authority of the President, to suspend the enforced departure until January 1, 1994 of any People’s Republic of China national who was in the United States. In furtherance of the policy concerns underlying the Executive Order, Congress enacted the Chinese Student Protection Act of 1992 (“CSPA”), 8 U.S.C. , which altered permanently the standard adjustment of status process for Chinese nationals who met the statute’s requirements. In September 1993, Chen filed a timely application with the INS for adjustment of status under the CSPA. His application was denied on the ground that he entered the United States without inspection, and was therefore inadmissible under INA section 245(a). In his deportation hearing, he argued that he was in fact admissible under section 245(a) because he had been effectively paroled into the country by having had his enforced departure deferred. The IJ disagreed and preter-mitted his application for adjustment of status, but granted him voluntary departure. On appeal to the BIA, he renewed this argument, and also argued that he was eligible to apply for adjustment of status under section 245(1). The BIA summarily affirmed pursuant 8 C.F.R. § 3.1(a)(7) (now located at 8 C.F.R. § 1003.1(a)(7)). Chen timely filed this petition for review.

II

Chen raises a novel question that has not been addressed by the BIA or this Court. He argues that the source of the President’s power to issue Executive Order 12,711 could only derive from the power to grant parole. Thus, Chen reasons, a grant of deferred enforced departure status must be construed as a grant of parole, which would make Chen eligible for adjustment of status under the CSPA.

Chen’s argument has support in BIA precedent. In Matter of O, 16 I. & N. Dec. 344 (1977), the BIA considered the status of 126 aliens who were brought to the United States as part of the evacuation of Vietnam and sought admission to the United States. Id. at 345. The INS contended that the aliens had not been paroled into the United States, but rather, their inspection had been deferred. Therefore, the INS contended, they could not be admitted to the United States because they had entered without inspection. Id. at 348.

In reviewing the claims, the BIA conducted a careful statutory analysis and concluded that the only legal authority for allowing the aliens to stay in the United States was the advance parole authority contained in section 212(d) of the Immigration and Naturalization Act (“INA”), which provides:

The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served, the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.

In determining the legal basis for the aliens’ presence in the United States, the BIA noted:

We are unaware of, and th,e Service had not provided us, any authority making lawful for the Government to bring these aliens into the United States other than the parole authority granted the Attorney General under section 212(d) of the Act.

Matter of O, 16 I. & N. at 348.

Accordingly, the BIA held that the applicants had been paroled into the United States and could not be treated as liens who had entered the country without inspection.

Chen argues that his situation is indistinguishable because the Executive Order provided temporary legal harborage in the United States, and the only possible source of such authority is the parole provisions of the INA. He argues that his release on bond upon entry into the United States was based on the same considerations as those in Matter of 0, and that the Executive Order confirmed the advance parole status. Therefore, he reasons, the IJ erred in denying his application solely on the basis that he was in the United States illegally, and the BIA erred in affirming summarily.

Ill

To address a burgeoning caseload and a growing adjudicatory delay, the INS promulgated regulations in 1999 to “streamline” administrative appeals. See Executive Office for Immigration Review; Board of Immigration Appeals: Streamlining, 64 Fed.Reg. 56,135 at 56,135-36 (Oct. 18, 1999). Prior to adoption of the streamlining regulations, a three judge BIA panel would review an IJ’s decision. The streamlining regulations authorized a single BIA member to affirm the IJ’s decision without opinion if:

the Board Member determines that the result ... was correct; that any errors ... were harmless or nonmaterial; and that (A) the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation; or (B) the factual and legal questions raised on appeal are so insubstantial that three-Member review is not warranted.

8 C.F.R. § 1003.1(a)(7)(h).

Because the BIA’s decision does not indicate which subsection of the streamlining regulation it found to authorize summary affirmance, we consider whether either subsection applies. It is clear in this case that subsection (A) provided no authority for the BIA to streamline Chen’s administrative appeal.¹ There is no BIA or federal court precedent that squarely controls the precise legal issue presented by Chen. He has raised a novel legal and factual issue.

As for subsection (B), the determination that three-Member review is not warranted is limited to those appeals in which “the 'factual and legal questions raised on appeal are ... insubstantial.” We afford an agency a great deal of deference when it interprets its own regulations. Lal v. INS, 255 F.3d 998, 1004 (9th Cir.2001). “However, we need not defer to the BIA’s reading of an INS regulation if an alternative reading is compelled by the regulation’s plain language.” Id. (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994)) (alterations and internal quotation marks omitted). The questions raised in Chen’s appeal cannot be described as “insubstantial.” Resolution of the legal and factual issues raised by Chen affects every People’s Republic of China national who entered the United States illegally but was then granted deferred enforced departure status by Executive Order 12,711, a sweeping Order that applied to every People’s Republic of China national who was in the United States at the time. Cf. Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir. 2004) (holding that it is inappropriate to defer to the agency’s interpretation of its governing statute when that interpretation leads to absurd results).²

Because neither subsection (A) nor subsection (B) of the streamlining regulation permits summary affirmance, the BIA erred in streamlining this case, and we must remand to the BIA for its reconsideration.

IV

The government argues that we lack jurisdiction to review the BIA’s decision to streamline. When the underlying IJ decision is based on a discretionary factor, the government is correct because IIRIRA limits our jurisdiction. Falcon Carriche, 350 F.3d at 855 (“[W]e are without jurisdiction to review whether the BIA improperly streamlined this appeal of a cancellation of removal decision in which only the discretionary ‘exceptional and extremely unusual hardship’ factor is in dispute.”). Additionally, under the venerable principle of federal administrative procedure, we lack jurisdiction over any administrative decision that comes within the “narrow” class of decisions “committed to agency discretion by law.” Heckler v. Chaney, 470 U.S. 821, 826, 838, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); 5 U.S.C. § 701(a)(2).

However, we do not lack jurisdiction over nondiscretionary agency determinations. See, e.g., Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997) (holding under IIRIRA’s transitional rules that “[a]s to those elements of statutory eligibility which do not involve the exercise of discretion, direct judicial review remains.”). “[A]n inquiry is discretionary where it is a ‘subjective question’ that depends on the value judgment ‘of the person or entity examining the issue.’ ” Romero-Torres v. Ashcroft, 327 F.3d 887, 891 (9th Cir.2003) (quoting Kalaw, 133 F.3d at 1151).

Indeed, Falcon Carriche quite clearly rejected the government’s position in this case — that there is no federal court jurisdiction over any aspect of the streamlining decision. We noted in that case: “Although we agree with the government’s ultimate conclusion, we do not embrace the government’s argument that the streamlining decision is inherently discretionary. Indeed, portions of the streamlining decision are non discretionary determinations that we would ordinarily have jurisdiction to review.” 350 F.3d at 852-53. See also id. at 855 (“[This] situation stands in contrast to cases where we have jurisdiction to review the merits.... In those cases we would, as a technical matter, have jurisdiction to review the BIA’s streamlining decision .... ”).

Application of subsection (A) of the streamlining regulation is clearly non-discretionary, as it can only be invoked when “the issue on appeal is squarely controlled by existing Board or federal court precedent and does not involve the application of precedent to a novel fact situation.” Application of subsection (B) is also not discretionary. It can only be invoked when the factual and legal issues presented are “insubstantial.” While the agency’s determination that the issues presented are “insubstantial” will often warrant deference, at times that determination would be absurd, as in this case.

Of course, as we pointed out in Falcon Carriche, in most cases, review of the IJ’s decision on the merits and the streamlining decision “collapse into one analysis.” 350 F.3d at 853 n. 7; see also Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1078 (9th Cir.2004). However, the decision to streamline despite the presence of novel legal questions, a complex factual scenario, and applicability to numerous other aliens is not such a situation. See Falcon Carriche, 350 F.3d at 854 (“We ... express no opinion on whether, although rare, a truly novel case could arise for which a decision to streamline could be found erroneous as a matter of law....”).

When confronted with a novel legal issue, we could decide the case based on application of law to the facts. However, we believe the better course in this case is to remand to the agency for its consideration of the issue in the first instance. This is particularly true where, as in the case at hand, the central question is application of the BIA’s own precedent.

We therefore grant the petition for review and remand to the BIA for its reconsideration. We express no opinion as to the merits of the petition.

PETITION GRANTED AND CASE REMANDED.

1 . Chen also argues that application of the streamlining procedures to him violated his right to due process. However, this contention is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.2003), in which we considered and rejected similar due process challenges. Id. at 850-52.

2 . The dissent argues that intraagency concerns may have motivated a finding that Chen's claim was too insubstantial to warrant three-member review. While we agree that such concerns may influence the Board's decision to streamline a case, they cannot trump the regulation’s clear language limiting streamlining to cases "squarely controlled” by precedent or at least arguably "insubstantial.” To the extent the dissent assumes that such concerns can be dispositive, we have already rejected the argument that the streamlining decision is a wholly discretionary decision over which we would lack jurisdiction under 5 U.S.C. § 701(a)(2). See infra Part IV (citing Falcon Carriche, 350 F.3d at 852-53, 855). The dissent further argues that Chen's appeal was so meritless it was insubstantial. While we agree that frivolous claims could be insubstantial, Matter of O indicates that Chen's argument is more than colorable. See supra Part II. Finally, the dissent appears to argue that we can assume the BIA reached Chen's argument and rejected it. However, the regulations indicate that when the BIA streamlines a case, it only "approves the result” reached by the IJ, not the "reasoning.” 8 C.F.R. § 1003. l(a)(7)(iii). See also Tokatly v. Ashcroft, 371 F.3d 613, 621 n. 7 (9th Cir.2004) ("That the BIA did not intend to modify its rule or otherwise create any precedential law in this case is evident from the fact that the appeal was 'streamlined.' ").