RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Denko v. INS No. 02-3746 ELECTRONIC CITATION: 2003 FED App. 0432P (6th Cir.) File Name: 03a0432p.06 DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: David W. Leopold, Cleveland, UNITED STATES COURT OF APPEALS Ohio, for Petitioner. Greg D. Mack, Emily A. Radford, UNITED STATES DEPARTMENT OF JUSTICE, FOR THE SIXTH CIRCUIT Washington, D.C., for Respondent. Nadine K. Wettstein, _________________ AMERICAN IMMIGRATION LAW FOUNDATION, Washington, D.C., for Amicus Curiae. SVITLANA DENKO , X - _________________ Petitioner, - OPINION - No. 02-3746 _________________ v. - > , KAREN NELSON MOORE, Circuit Judge. Petitioner IMMIGRATION AND - Svitlana Denko (“Denko”) appeals the decision of the Board NATURALIZATION SERVICE, - of Immigration Appeals (“BIA” or “Board”) to affirm without Respondent. - opinion the Immigration Judge’s (“IJ”) order of removal - against Denko and its decision to deny Denko’s motion to N rescind the in absentia order of removal. Denko makes two On Appeal from the Board of Immigration Appeals. arguments on appeal. First, Denko argues that it was an abuse No. A76 853 968. of discretion for the IJ not to reopen removal proceedings when Denko introduced evidence that her failure to attend her Argued: July 29, 2003 second master-calendar hearing resulted from her attorney’s ineffective assistance of counsel and not from any decision on Decided and Filed: December 8, 2003 Denko’s part to abandon her request for asylum. Second, Denko argues that the regulation permitting the Board Before: DAUGHTREY and MOORE, Circuit Judges; summarily to affirm without opinion the IJ’s decision, CALDWELL, District Judge.* 8 C.F.R. § 1003.1(a)(7), violates established administrative law because it is inconsistent with other provisions of the _________________ Immigration and Nationality Act (“INA”) and violates the Due Process Clause of the United States Constitution because COUNSEL it fails to produce a separate BIA decision for the court of appeals to review. We AFFIRM the judgment of the IJ and ARGUED: David W. Leopold, Cleveland, Ohio, for uphold 8 C.F.R. § 1003.1(a)(7)’s summary-affirmance- Petitioner. Greg D. Mack, UNITED STATES without-opinion rule as both constitutional and consistent with administrative-law precedent.
* The Honorable Karen Caldwell, United States District Judge for the Eastern District of Kentucky, sitting by designation.
1 No. 02-3746 Denko v. INS 3 4 Denko v. INS No. 02-3746
I. BACKGROUND removable pursuant to the INA. During this hearing, the IJ advised Denko of the consequences of her failure to appear at Denko came to this country as a lawful nonimmigrant the scheduled second master-calendar hearing set for April 7, visitor on April 25, 1993, from her native homeland in 2000. In addition, the order issued on October 29 contained Ukraine. Her authorization permitted her to stay for no longer a written warning that Denko must appear on April 7, 2000: than six months. Denko remained in this country well past her six-month authorization, and it was not until March 3, Failure to appear at your hearing except for exceptional 1998,1 nearly five years after Denko first entered, that she circumstances may result in one or more of the following filed an affirmative request for asylum based on religious actions: (1) You may be taken into custody by the persecution. Denko is Jewish and claims that, while living in Immigration and Naturalization Service and held for Ukraine, she was persecuted by local Ukrainian nationalists. further action[,] OR (2) Your hearing may be held in Denko states that she attempted to secure protection from your absence under section 240(b)(5) of the Immigration local government agencies in Ukraine but that none would and Nationality Act. An order of removal will be entered assist her. She cites as specific examples of persecution, the against you if the Immigration and Naturalization Service following: large fines were fraudulently imposed on her established by clear, unequivocal and convincing business by anti-Semitic local officials, she was harassed and evidence that a) you or your attorney has been provided received threats of violence from local police, and she was this notice and b) you are removable. victimized and beaten by members of the Ukrainian Self Defense, a military unit of the Ukrainian National Army. Joint Appendix (“J.A.”) at 32 (Not. of Hr’g in Removal Proceedings). Another reminder came almost four months After Denko’s request for asylum, the INS served Denko on before the second master-calendar hearing, when Denko January 27, 1999, with a notice to appear (“NTA”) to show received a letter from Wojnar stating: cause as to why she did not leave the United States on or before her six-month permission expired. The NTA ordered If you would like we could request a Motion to the Denko to appear before the IJ on October 29, 1999, and, Judge so you do not have to be present on April 07, according to the INS, included a warning which stated: “If 2000, in which case I will be there representing you . . . . you fail to attend the hearing at the time and place designated in this notice, or any date and time later directed by the Please let our office know if this is something you Immigration Court, a removal order may be made by the would like to consider and although we have the right to immigration judge in your absence, and you may be arrested request it from the Judge, the Judge does not necessarily and detained by the INS.” Appellee’s Br. at 5. have to grant it. However, for your convenience we will attempt to do so if you so desire. At this October initial hearing, Denko was represented by her attorney, Nicoleta Wojnar (“Wojnar”). Denko admitted J.A. at 30.2 It is the wording of this letter that forms the basis to the factual allegations against her and that she was for Denko’s assertion of ineffective assistance of counsel.
2 1 Denko’s brief misquotes this letter in a significant way: she omits Responde nt suggests that Denko did no t apply for asylum until on the key phrase “if you so desire.” Appellant’s Br. at 4. Omission of this or about March 27, 1998. critical phrase distorts the meaning of the letter. No. 02-3746 Denko v. INS 5 6 Denko v. INS No. 02-3746
Denko, noting that English is not her native language, plain reading of the letter indicates that Respondent’s argues that she interpreted Wojnar’s letter to mean that prior counsel was merely extending an offer to file the Denko’s presence was not required at the master-calendar motion. It does not rise to the level of an agreement hearing. Moreover, Denko claims that Wojnar informed her without evidence to indicate that the offer was accepted. that Wojnar would seek a motion to waive appearance. As a There was no evidence of a letter, telephone call, or any result of Wojnar’s letter, Denko failed to attend her second other form of communication that would indicate the master-calendar hearing on April 7, 2000. Consequently, the Respondent accepted the offer and had a reasonable hearing was conducted in absentia pursuant to § 240(b)(5)(A) expectation that it would be filed. of the INA. Because a waiver of Denko’s personal appearance was never requested, the IJ ordered Denko J.A. at 22 (Decision & Or. of I.J.). Additionally, the IJ noted removed to Ukraine. The IJ concluded that no special that even if Wojnar agreed to file the motion and then failed circumstances were present to justify Denko’s absence from to perform, Denko had a duty to follow up because Wojnar’s the hearing. letter made clear that the IJ had discretion to grant or deny the motion. The IJ thus held that the in absentia order of removal On June 22, 2000, after retaining new counsel, Denko was proper. moved to reopen her removal proceedings based on ineffective assistance of counsel.3 Denko claimed in her Denko timely filed a notice of appeal to the Board on accompanying affidavit that she misunderstood the mixed August 29, 2000. Denko argued that the IJ’s decision was an signals contained in Wojnar’s letter. Additionally, Denko abuse of discretion because it relied on Wojnar’s ambiguous argued that Wojnar never informed her of Denko’s required letter to show that Denko was aware of the consequences of presence and never sought the waiver that Wojnar agreed to her failure to appear. According to Denko, because English seek in the letter. As evidence of Wojnar’s ineffectiveness, is not her native tongue and because Wojnar’s confusing letter Denko pointed out that the INA requires the alien’s presence negated the IJ’s prior warnings, the motion to reopen should at the master-calendar hearing except in a few special have been granted because Denko’s failure to appear was the circumstances, none of which was present in Denko’s case. result of Wojnar’s ineffectiveness as counsel. On June 5, On August 3, 2000, the IJ denied Denko’s motion. The judge 2002, the Board, using the newly enacted streamlining reasoned that: procedures, affirmed the IJ’s order without issuing an opinion. Denko now seeks review in this court, where she Apart from [Wojnar’s] letter the Respondent has not challenges the BIA’s affirmance of the IJ’s order of removal offered any additional evidence to indicate that there was and the BIA’s use of the affirmance-without-opinion an agreement to submit a Motion to Waive Appearance procedure. nor has the Respondent indicated anything further in her affidavit to support the existence of the “agreement.” A II. ANALYSIS A. Denial of the Motion to Rescind the In Absentia 3 As required b y In re Lozada, 19 I. & N. Dec. 637 (BIA 19 88), Order of Removal Denko simultaneously filed a grievance against Wojnar with the Cleveland Bar Association. The Ohio Disciplinary Counsel dismissed the Denko asserts that the IJ abused her discretion when she grievance, stating that Wojnar adequately communicated with Denko and denied Denko’s motion to reopen the order of removal. sought to keep her abreast of the details in her immigration case. No. 02-3746 Denko v. INS 7 8 Denko v. INS No. 02-3746
Denko argued in that motion, and argues here on appeal, that control of the alien,” including “serious illness of the alien or Wojnar’s assistance was ineffective because Wojnar failed to serious illness or death of the spouse, child, or parent of the make clear Denko’s responsibility for appearing at the second alien, but not including less compelling circumstances.” hearing on April 7, 2000. In Denko’s estimation, the IJ 8 U.S.C. § 1229a(e)(1). An IJ considers the totality of the abused her discretion when she failed to give adequate weight circumstances when making a determination that exceptional to Denko’s affidavit and supporting evidence that Denko was circumstances exist. See In re J-P-, 22 I. & N. Dec. 33 (BIA misinformed and would have reacted differently had she been 1998); see also H.R. Conf. Rep. No. 101-955, at 119, 132 given the proper information. (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6797 (noting that “the conferees expect that in determining whether an The denial of a motion to reopen or reconsider a removal alien’s failure to appear was justifiable the Attorney General order is reviewed for an abuse of discretion. INS v. Doherty, will look at the totality of the circumstances to determine 502 U.S. 314, 324 (1992). An abuse of discretion can be whether the alien could not reasonably have been expected to shown when the IJ or Board offers no “rational explanation, appear”). Thus, the question that we must address is whether inexplicably depart[s] from established policies, or rest[s] on it was an abuse of discretion for the IJ to determine that an impermissible basis such as invidious discrimination Denko’s claims of ineffective assistance of counsel were against a particular race or group.” Balani v. INS, 669 F.2d insufficient to constitute an exceptional circumstance. 1157, 1161 (6th Cir. 1982). When the BIA adopts the reasoning of the IJ, we review the IJ’s decision to determine Because “[a] deportation proceeding is a purely civil whether the BIA abused its discretion. Kegode v. Ashcroft, action,” INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984), No. 01-3865, 2003 WL 1949609, at *2 (6th Cir. April 22, an ineffective assistance of counsel claim is reviewed under 2003) (unpublished). When the BIA issues an order pursuant the Due Process Clause of the Fifth Amendment rather than to 8 C.F.R. § 1003.1(a)(7), affirming the result of the IJ’s under the Sixth Amendment. “Fifth Amendment guarantees decision but not necessarily adopting the IJ’s reasoning, the of due process extend to aliens in deportation proceedings, only “rational explanation” is that of the IJ; thus here we entitling them to a full and fair hearing.” Huicochea-Gomez review the IJ’s decision for an abuse of discretion, as is v. INS, 237 F.3d 696, 699 (6th Cir. 2001). Ineffective discussed more fully in Part II.B. infra. assistance of counsel in a deportation proceeding will rise to the level of a due-process violation under the Fifth An in absentia order issued pursuant to § 240(b)(5) of the Amendment “only if the proceeding was so fundamentally INA can be rescinded if the alien can show that she failed to unfair that the alien was prevented from reasonably appear because: (1) she was in custody and her failure to presenting his case.” Ramirez-Durazo v. INS, 794 F.2d 491, appear was not her fault; (2) she never received notice of the 499-500 (9th Cir. 1986) (quotation omitted); see also proceedings; or (3) she had other exceptional circumstances. Taniguchi v. Schultz, 303 F.3d 950, 958 (9th Cir. 2002) (“To 8 C.F.R. § 1003.23(b)(4)(iii). See also 8 U.S.C. show ineffective assistance of counsel, a party must § 1229a(b)(5)(C). In Denko’s case, because she was not in demonstrate that the actions of his/her attorney resulted in custody and most certainly received multiple forms of notice, prejudice to the party. A party must prove prejudice by the order can be rescinded only if the motion to reopen shows alleging facts that permit the court to infer that competent that there were exceptional circumstances causing her failure counsel would have acted otherwise.” (citations omitted)). to appear. 8 U.S.C. § 1229a(b)(5)(C)(i). Section 1229a(e)(1) The alien will succeed if he meets his burden of showing describes exceptional circumstances as matters “beyond the more than “mere[] ineffective assistance of counsel, but No. 02-3746 Denko v. INS 9 10 Denko v. INS No. 02-3746
assistance which is so ineffective as to have impinged upon unfairness” because she cannot establish that “but for the fundamental fairness of the hearing in violation of the [Wojnar’s] legal advice, [she] would have been entitled to fifth amendment due process clause.” Ramirez-Durazo, 794 continue residing in the United States.” Id. at 699-700 F.2d at 500 (quotation omitted); see also Huicochea-Gomez, (noting that “[t]he failure to be granted discretionary relief 237 F.3d at 699 (“The alien carries the burden of establishing does not amount to a deprivation of a liberty interest”). In that ineffective assistance of counsel prejudiced him or denied fact, Denko merely asserts that if she had not relied on him fundamental fairness in order to prove that he has Wojnar’s allegedly confusing letter, she would have appeared suffered a denial of due process.”). at her scheduled hearing and an order in abstentia would not have been entered against her. While this may very well be The IJ determined that Denko did not receive ineffective accurate, this is not equivalent to a showing that if Denko assistance of counsel because Wojnar’s letter could not be attended the hearing she would have been granted the asylum interpreted to form an agreement that Wojnar would request she sought. The lack of fundamental unfairness becomes a waiver of Denko’s appearance. At best, Wojnar’s letter to even more clear when we consider that Denko neither Denko could be interpreted as extending an offer to file a contests the illegal nature of her presence in the U.S. nor her waiver motion. According to the IJ, Denko offered no other deportability. In addition, Denko failed to allege any facts evidence of an agreement between herself and Wojnar. that tend to show that a competent lawyer would have Moreover, the IJ noted that even assuming that the letter behaved differently than Wojnar. See Taniguchi, 303 F.3d at could be interpreted to constitute an agreement, the letter 958 (noting that prejudice can be established through facts clearly stated that the IJ had discretion to grant or refuse any tending to show that a competent lawyer would have acted request, and thus Denko should have followed up with differently). Wojnar to determine the status of her required attendance at the hearing. The IJ noted that at the initial scheduling Denko’s suggestion that because her affidavit states that she hearing, Denko was warned of the consequences of her failure was confused by Wojnar’s letter the IJ was obligated to find to appear at any future scheduling hearing both verbally and that Denko suffered ineffective assistance of counsel is not in writing. compelling. Wojnar’s letter reiterated that Denko’s hearing was scheduled for April 7, 2000, and provided Denko an The IJ’s determination that Wojnar’s actions were opportunity to seek to avoid her required attendance at the insufficient to constitute an exceptional circumstance hearing. However, the language used in the letter clearly explaining Denko’s absence, and thus did not violate Denko’s indicated that a motion to waive appearance could be filed at due-process rights, was not an abuse of discretion. The IJ Denko’s request, and Denko presented no evidence of any provided a “rational explanation” for her conclusions that such request made to Wojnar. Although Denko argues that Denko had sufficient notice of the consequences for failure to her language barrier prohibited her from understanding the attend her hearing and that the allegations against Wojnar precise language in the letter, she makes no argument that she were insufficient to establish ineffective assistance of counsel. did not understand the IJ’s verbal and written warnings at the Balani, 669 F.2d at 1161. In addition, Denko was not entitled initial hearing. Moreover, it was Denko’s responsibility to to relief on her alleged ineffective-assistance-of-counsel claim understand the contents of a letter which, under a plain because she failed to show how her liberty interest was reading, only can be interpreted as an offer to file a motion violated. Huicochea-Gomez, 237 F.3d at 699. Denko is with the immigration court. Because Denko failed to heed the unable to show the necessary “prejudice” or “fundamental prior warnings regarding attendance and neglected to confirm No. 02-3746 Denko v. INS 11 12 Denko v. INS No. 02-3746
her own understanding of Wojnar’s letter, we cannot conclude that § 1003.1(a)(7) violates congressional intent embodied in that Denko suffered fundamental unfairness. the INA, because Congress intended to enact greater procedural protections in administrative hearings for aliens. In sum, while Denko has shown that her failure to appear According to Denko, the administrative-law scheme was at her hearing precipitated the in absentia order against her, designed so that aliens would have two de novo reviews of Denko has failed to meet her burden to show fundamental their claims within the administrative system, one with the IJ unfairness or prejudice arising from Wojnar’s conduct. See and another with the BIA. In Denko’s estimation, Huicochea-Gomez, 237 F.3d at 699; Ramirez-Durazo, 794 § 1003.1(a)(7)’s license to members of the Board to issue F.2d at 499-500. Because Denko failed to establish an summary affirmances without opinions renders de novo exceptional circumstance through a showing of ineffective review by the BIA impossible. Denko also asserts that assistance of counsel, the IJ did not abuse her discretion in § 1003.1(a)(7) contradicts other INA provisions which permit denying Denko’s motion to rescind the in absentia order of appeals only from final orders. Denko argues that because the removal, and the BIA did not abuse its discretion in affirming BIA did not independently render a decision, there is no final the IJ’s conclusions. agency order for this court to review. B. Summary-Affirmance-Without-Opinion Procedure Second, Denko asserts a Due Process Clause violation in that the regulation allows the BIA to issue a summary On appeal to the Board, Denko challenged the IJ’s denial of affirmance without also issuing a separate opinion. her motion to rescind the in absentia order of removal based According to Denko, because the BIA does not issue its own on Denko’s failure to establish exceptional circumstances. opinion, Denko has a diminished opportunity to receive a The Board, using the summary-affirmance-without-opinion “full and fair judicial review” of the final agency order. procedure (also referred to as the streamlining procedure), Appellant’s Br. at 7. Denko argues that the Supreme Court agreed with the IJ’s result. Now on appeal, Denko challenges has noted that in order for a court to review an agency’s the streamlining procedure’s compliance with the action, the action must be clearly stated because “[i]t will not requirements of due process and established administrative- do for a court to be compelled to guess at the theory law precedent. Denko makes two broad arguments for striking down 8 C.F.R. § 1003.1(a)(7).4 First, Denko asserts not involve the application of precedent to a novel 4 fact situation; or Section 10 03.1 (a)(7) states, in relevant p art: (B) The factual and legal questions raised on appeal The Chairman may designate, from time-to-time, permanent are so insubstantial that three -Memb er review is Board Members who are authorized, acting alone, to affirm not warranted. decisions of Immigration Judges and the Service without ... opinion. . . . The single Board Member to whom a case is An order affirming without opinion, issued under authority of assigned may affirm the decision of the Service or the this provision, shall not include further explanation or reasoning. Immigration Judg e, without opinion, if the Board Member Such an order approves the result reached in the decision below; determines that the result reached in the decision under review it does not necessarily imply approval of all of the reasoning of was correct; that any errors in the decision under review were that decision, but does signify the Board’s conclusion that any harmless or nonmaterial; and that errors in the decision o f the Imm igration Judg e or the Service (A) The issue on appeal is squarely controlled by were harmless or nonm aterial. existing Board o r federal court precedent and does 8 C.F.R. § 100 3.1(a)(7). No. 02-3746 Denko v. INS 13 14 Denko v. INS No. 02-3746
underlying the agency’s action; nor can a court be expected to Board adopts the decision of the IJ in lieu of issuing its own chisel that which must be precise from what the agency has opinion, we review the IJ’s decision as the final agency left vague and indecisive.” SEC v. Chenery Corp., 332 U.S. decision. Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995). 194, 196-97 (1947). Denko cites a Ninth Circuit case for the proposition that where the Board fails to offer a reasoned At the time Denko appealed to the Board, the Board’s explanation, the reviewing court must set aside the Board’s general policy was to sit in three-member panels to review IJ decision. See Tukhowinich v. INS, 64 F.3d 460, 464 (9th Cir. decisions on appeal.6 Under § 1003.1(a)(7), adopted by the 1995). The main problem with the summary affirmance Department of Justice (“DOJ”) in 1999, a single Board process, according to Denko, is that the basis for the Board’s member is authorized to issue a decision affirming an IJ’s affirmance is concealed from our review by the explicit decision without stating the basis for such affirmance. This command of the regulation. Denko asserts that this affirmance implies that the IJ decided the case correctly, any concealment makes the summary-affirmance-without-opinion errors committed by the IJ were immaterial or harmless, and procedure violate due process.5 either the issue is squarely controlled by precedent and does not involve a novel factual issue or the factual and legal issues “It is well established that the Fifth Amendment entitles raised on appeal are too insubstantial to warrant a three- aliens to due process of law in deportation proceedings.” member review. 8 C.F.R. § 1003.1(a)(7). If an appeal from Reno v. Flores, 507 U.S. 292, 306 (1993). As an initial a decision of the IJ meets the regulation’s criteria, the Board matter, aliens who have entered the United States, both issues an order containing the following statement: “The lawfully and unlawfully, cannot be “expelled” without the Board affirms, without opinion, the result of the decision government following established procedures consistent with below. The decision below is, therefore, the final agency the requirements of due process. Shaughnessy v. United determination.” Id. at § 1003.1(a)(7)(iii). If an appeal does States ex rel. Mezei, 345 U.S. 206, 212 (1953). We review de not meet the criteria contained in § 1003.1(a)(7), a three- novo claims of due-process violations in deportation member panel of the BIA must review the petition. Id. at proceedings. Huicochea-Gomez, 237 F.3d at 699. When the § 1003.1(a)(7)(iv). Section 1003.1(a)(7) specifically indicates that a summary 5 affirmance “does not necessarily imply approval of all of the This argument is also the heart of the Amicus Curiae’s (hereinafter reasoning of the [affirmed] decision.” Id. at “American Immigration Law Foundation”) brief. Both Denko and the American Immigration Law Foundation agree that the failure of the Board § 1003.1(a)(7)(iii). In the comments to the proposed rule, the to issue an opinion makes it impossible for a reviewing court to determine whether Denko received any pro cess as required by the Due Process Clause. A summary affirmance does not indicate which of the[] 6 alternatives [in § 1003.1(a)(7)] was applied to the case. It is As noted by the American Immigration Law Found ation, the most equally impossible to determine how the criteria were analyzed: recent revision s to the regulation s mandate single-member review as the what precedent was considered; why the facts were found not to standard procedure for appeals. Now a three-memb er panel on appeal is be novel; what factual and legal questions were considered; and appro priate only when the BIA needs to establish precedent, the BIA the standard for determining whether questions raised on appeal needs to settle differences am ong IJs, the ca se is of national importance, were “so insubstantial” that three-Member review is not the IJ’s d ecision is not in co nform ity with the law, the IJ m akes a clearly warranted. erroneous factual determination, or the Board nee ds to reverse the IJ’s Amicus Br. at 13. decision. 8 C.F.R. § 1003.1(e)(6). No. 02-3746 Denko v. INS 15 16 Denko v. INS No. 02-3746
DOJ identified the impetus behind permitting a summary In response to Denko’s first argument8 — that affirmance by a single Board Member: § 1003.1(a)(7) is inconsistent with administrative law — we note that the cases she cites stand for the proposition that the To operate effectively in an environment where over BIA has the power to conduct reviews de novo, not that it is 28,000 appeals and motions are filed yearly, the Board required to do so. See Abdulai v. Ashcroft, 239 F.3d 542, must have discretion over the methods by which it 548-49 (3d Cir. 2001) (“Because an alien facing removal may handles its cases. The process of screening, assigning, appeal to the BIA as of right, and because the BIA has the tracking, drafting, revising, and circulating cases is power to conduct a de novo review of IJ decisions, there is no extremely time consuming. Even in routine cases in ‘final order’ until the BIA acts.”); Castillo v. INS, 951 F.2d which all Panel Members agree that the result reached 1117, 1120-21 (9th Cir. 1991) (“The BIA has the power to below was correct, disagreements concerning the conduct a de novo review of the record, to make its own rationale or style of a draft decision can require findings, and to determine independently the sufficiency of significant time to resolve. The Department has the evidence.”). While deliberate action from the BIA may be determined that the Board’s resources are better spent on necessary, Denko’s suggestion that a summary affirmance cases where there is a reasonable possibility of reversible without opinion is not a final order is directly contradicted by error in the result reached below. the terms of the regulation which indicate that the IJ’s opinion becomes the final agency determination subject to review. Executive Office for Immigration Review; Board of 8 C.F.R. § 1003.1(a)(7)(iii) (“The Board affirms, without Immigration Appeals: Streamlining, 64 Fed. Reg. 56135, opinion, the results of the decision below. The decision 56137 (Oct. 18, 1999) (hereinafter “Streamlining”).7 To below is, therefore, the final agency determination.”). remedy the problems resulting from the dramatic increase in appeals, the Attorney General sought to implement a new Courts have consistently allowed the IJ’s decision to streamlined appellate review system because “in a significant become the final agency determination subject to review number of appeals and motions filed with the Board, a single when the Board has adopted the IJ’s findings or has deferred appellate adjudicator can reliably determine that the result to the IJ’s decision. See Guentchev v. INS, 77 F.3d 1036, reached by the adjudicator below is correct and should not be 1038 (7th Cir. 1996) (“To adopt someone else’s reasoned changed on appeal.” Id. at 56135. By expressly prohibiting explanation is to give reasons.”); Abdulai, 239 F.3d at 549 the single Board member from including his or her own n.2; Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996). The Third explanation or reasons within the order, the regulation further Circuit in Abdulai noted that there are occasions where “as a alleviates the burden on the Board. matter of logic” the courts of appeals are reviewing effectively the IJs’ decisions, such as when the BIA affirms on the basis of the IJ’s opinion. Abdulai, 239 F.3d at 549 n.2.
7 8 28,000 appeals in 1998 was a dramatic increase from the 3,000 In Carriche, the Ninth Circuit noted that alien petitioners “have app eals handled by the BIA in 1984 . In 2002, the number of appeals to unde rstandable concerns about the streamlining process” including “the the BIA reached 34,00 0. Carriche v. Ash croft, 335 F.3d 100 9, 10 12 (9th lack of transparency in the process, the increasing frequency in which the Cir. 2003) (citing Executive Office for Immigration Review, Statistical process is invoked, the speed with which appeals are decided, and a belief Year Book: 2 002, a t 49, fi g . 2 3 , a va i l ab l e at that the BIA may be abdicating its statutorily-ma ndated ro le of ap pellate http://www.usdoj.gov/eoir/statspub/fy02syb.pdf). review.” Carriche, 335 F.3d at 1013. No. 02-3746 Denko v. INS 17 18 Denko v. INS No. 02-3746
Moreover, Tukhowinich expressly states that the BIA has the procedure is distinguishable from an express adoption of the authority to rely on an IJ’s opinion that provides the required IJ’s opinion and rationale, it also is true that a summary reasoning. See Tukhowinich, 64 F.3d at 463. All of these affirmance can be issued only when “the Board Member decisions, however, require that the BIA give the IJ’s findings determines that the result reached in the decision under “individualized consideration.” See, e.g., Chen, 87 F.3d at 8. review was correct.” 8 C.F.R. § 1003.1(a)(7). Thus, the BIA When the BIA does not perform its duty to “review the record member agrees with the result reached by the IJ, and then also and assess the IJ’s conclusions,” the BIA abuses its own determines that any errors in the IJ’s decision are harmless or discretion. Tukhowinich, 64 F.3d at 463. Thus, we must nonmaterial and that the issue raised is controlled by address Denko’s argument that the summary affirmance precedent and is not a novel issue or that the legal and factual procedure enables BIA members to give less than full issues raised are insubstantial. By necessity, then, the BIA consideration to the IJ decisions they review. The First member must give the case his or her full consideration and Circuit previously has addressed this argument and concluded assess the IJ’s decision before the BIA member can determine that a challenge to the summary affirmance procedure cannot that summary affirmance without opinion is the proper stand when the only evidence that the summary affirmance procedure.9 So while Denko’s case is not directly on point procedure causes the BIA to disregard its review with those cases where the BIA affirms on the basis of the responsibilities is the nature of the procedure itself combined IJ’s opinion, the cases nonetheless are similar in that both with statistics indicating that thorough review would be require agreement with the end-result as determined by the IJ difficult. See Albathani v. INS, 318 F.3d 365, 378-79 (1st Cir. and both decline to require the Board to issue its own opinion 2003). We agree that a petitioner must show more. Here, using different words to reach the same end-result. See Denko has provided no evidence that the Board failed to give Guentchev, 77 F.3d at 1038. Denko’s case proper review. See id. at 379 (“We are not willing, however, in the absence of [] evidence [of systemic In response to Denko’s due-process argument, the INS violation by the BIA of its regulations] to infer . . . that the points out that although the regulations permit appeals to the required review is not taking place.”); see also Mendoza v. Board, such review is not constitutionally compelled. The U.S. Att’y Gen., 327 F.3d 1283, 1289 (11th Cir. 2003) (“That INS relies for support on the Seventh Circuit’s opinion in a one-sentence order was entered is no evidence that the BIA Guentchev, which noted that, “[t]he Constitution does not member did not review the facts of [petitioner’s] case.”). We entitle aliens to administrative appeals. . . . [Thus, t]he will not assume such a complete break-down in the system in the absence of tangible evidence to support such a conclusion. 9 The American Immigration Law Found ation points out that the Moreover, Denko’s argument that the summary affirmance February 2002 proposals by the Attorney General included reducing the without opinion permitted by § 1003.1(a)(7) violates the Board size from twenty-three to eleven mem bers. A micus Br. at 4; see mandate that agencies must set forth reasons for their also Lisa Getter & Jonathan Peterson, Speed ier Rate of Deportation Rulings Assailed, Los A ngeles Tim es, Jan. 5, 20 03, at 1. This seem ingly decisions also fails because the IJ’s opinion becomes the contradictory proposal intends to red uce the B oard’s bac klog and the reasoned explanation needed for review. Albathani, 318 F.3d amount of time sp ent on each case while limiting the number of persons at 377 (noting that Chenery only requires the relevant agency, authorized to review rulings from the immigration judges. Spe edier Rate here the INS, to give reasons for its decisions, which may of Deportation Rulings Assailed, supra. The article notes that two Bo ard issue from either the BIA or an IJ). While Denko has a viable members each signed more than fifty cases in one da y, which equates to “a decision nearly every 10 minutes if [one] worked a nine-hour day argument that the BIA’s affirmance-without-opinion without a break.” Id. No. 02-3746 Denko v. INS 19 20 Denko v. INS No. 02-3746
Attorney General could dispense with the Board and delegate (unpublished order) (“The BIA’s summary affirmance of a [his] powers to the immigration judges, or could give the flawed decision by an IJ, however, may lead us to conclude Board discretion to choose which cases to review.” Id. at that the BIA’s decision is insufficient.”). Thus, we are not 1037-38 (holding in a case decided before streamlining was forced to guess at the rationale of the BIA, but instead we adopted that “the Board fulfills its duty by summarily evaluate the IJ’s explanation as that of the Board; the Board affirming an immigration judge’s opinion”); see also cannot rely on an unarticulated basis for its determination. Albathani, 318 F.3d at 376 (“An alien has no constitutional See Fed. Power Comm’n v. Texaco, Inc., 417 U.S. 380, 397 right to any administrative appeal at all.”). Accordingly, the (1974)(“An agency’s order must be upheld, if at all, on the Seventh Circuit has held that a reasoned decision by an same basis articulated in the order by the agency itself.”). See administrative law judge and review by a court of appeals is generally Albathani, 318 F.3d at 377 (noting that “[t]he sufficient to satisfy the requirements of due process. summary affirmance scheme does create . . . problems [for Guentchev, 77 F.3d at 1038. As have many circuits before us, review], but they do not render the scheme a violation of due we now join the recent trend of our sister circuits by process or render judicial review impossible”); see also concluding that the BIA’s streamlining procedures do not Carriche, 335 F.3d at 1014 (“[T]he streamlining procedures themselves alone violate an alien’s rights to due process. do not compromise our ability to review the INS’s decision, Carriche, 335 F.3d at 1012 (Ninth Circuit); Georgis v. to the extent we have jurisdiction to do so, because we can Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003) (“Since we review the IJ’s decision directly.”). Thus, Denko’s due review directly the decision of the IJ when a case comes to us process rights are not violated simply because the BIA did not from the BIA pursuant to § 1003.1(a)(7), our ability to issue a reasoned explanation.10 conduct a full and fair appraisal of the petitioner’s case is not compromised, and the petitioner’s due process rights are not violated.”); Mendoza, 327 F.3d at 1289 (Eleventh Circuit); 10 Mo reover, the review process offered under § 1003.1(a)(7) Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003); com ports with the req uirements of d ue process as defined in Mathews v. Albathani, 318 F.3d at 376-79 (First Circuit). Eldridge, 424 U .S. 319 (1976). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a Likewise, it is not “a due process violation for the BIA to meaningful mann er.” Id. at 333 (quotation omitted). The Court identified affirm the IJ’s decision without issuing an opinion.” three factors to consider when determining whether administrative Carriche, 335 F.3d at 1014. Even if the BIA would view the procedures compo rt with due proc ess: First, the private interest that will be affected by the official factual and legal issues differently from the immigration action; second, the risk of an erroneous deprivation of such judge, the summary-affirmance-without-opinion rule renders interest through the procedures used, and the pro bab le value, if the IJ’s decision the final agency order, and we review that any, of additional or substitute procedural safeguards; and decision. Thus, Denko receives the “full and fair” review that finally, the Government’s interest, including the function she is entitled to receive. Huicochea-Gomez, 237 F.3d at 699; involved and the fiscal and administrative burdens that the add itional or substitute procedural req uirement would entail. see Georgis v. Ashcroft, 328 F.3d at 967. Moreover, “[i]n Id. at 335. functional terms, if the BIA does not independently state a Evaluating the Mathews factors in the present case, we believe that correct ground for affirmance in a case in which the reasoning it is clear that Denko has a substantial interest in having her in ab sentia proffered by the IJ is faulty, the BIA risks reversal on appeal.” order of removal rescinded. Denko, however, has not shown how the Albathani, 318 F.3d at 378; see also Tuhin v. Ashcroft, No. streamlining procedures increase the risk that she will be deprived erroneously of her interest in remaining in the United States. See 02-2661, 2003 WL 1342995, at *2 (7th Cir. Feb. 11, 2003) gen erally Carriche, 335 F.3d at 1015 (“[T ] he alleged risks of erroneous No. 02-3746 Denko v. INS 21 22 Denko v. INS No. 02-3746
Separate from her attack on the statute’s constitutionality, § 701(a)(2)). Interpreting this phrase using legislative history, Denko also argues that use of the summary-affirmance the Heckler Court determined that judicial review is procedures in this case was improper because her case did not precluded “if the statute is drawn so that a court would have meet the criteria for application of this procedure. Denko’s no meaningful standard against which to judge the agency’s main contention is that there are factual issues — whether exercise of discretion. In such a case, the statute (‘law’) can Wojnar’s letter was ambiguous, whether Denko would have be taken to have ‘committed’ the decisionmaking to the attended the hearing, whether Denko was unable to agency’s judgment absolutely.” Id. at 830. The INS argues understand the letter — that are not insubstantial and require that a Board member’s decision to streamline a case is a review by a three-member panel. In response, the INS asserts decision that has been committed to the agency’s discretion that the Board’s decision to review Denko’s appeal using because it involves “‘a complicated balancing of a number of summary-affirmance procedures is insulated from review. factors which are peculiarly within the expertise of the Citing Heckler v. Chaney, 470 U.S. 821 (1985), the INS states agency.’” Appellee’s Br. at 19 (quoting Heckler, 470 U.S. at that because the Administrative Procedure Act (“APA”) 831). Specifically, the INS argues that in order for the agency governs judicial review of agency actions, judicial review is to determine that no novel or complex issues are raised it inappropriate when the “agency action is committed to must evaluate the Board’s caseload — a task ideally suited to agency discretion by law.” Id. at 828 (quoting 5 U.S.C. the Board, not the court. As an initial matter, this argument for committing this decision to the agency’s discretion is doubtful because there deprivation are mitigated through the regulatory structure itself. are judicially manageable standards available to a reviewing Petitioners receive a reasoned decision from the IJ an d have the option to court. Streamlining procedures are used only when the result seek reconsideration fro m the B IA. . . . [I]n cases where the courts of reached by the IJ is correct, any errors are harmless or appeal have jurisdiction, petitioners are also entitled to an additional level of review.”). It is not at all clear that requiring more elaborate review by nonmaterial, and either the issue is controlled by precedent the BIA would secure Denko’s interest in not being deported. and does not require application to novel facts or the factual The INS has a strong interest in its procedures for accura te, efficient, and legal questions are insubstantial and do not warrant three- and economical adjudication of immigration matters. The DOJ enacted member review. These factors straight from the regulation this streamlining procedure in response to statistics showing that between itself provide the necessary guidelines for judicial review. 1984 and 1999, appeals and motions to the Board increased more than Moreover, the size of the BIA’s caseload — a factor which nine-fold. Streamlining, 64 Fed. Reg. at 56136. Other objectives of the DOJ in enacting this procedure included promo ting uniformity in the IJ the Board may be better equipped to assess — has no decisions, deciding cases in a timely fashion, assuring the correct relevance in deciding which cases are appropriate for disposition of cases, and reducing the BIA ’s back log. Id. The Supreme summary affirmance. That determination is made using the Court has indicated its approval of a gencies fashioning their own factors identified in § 1003.1(a)(7). Moreover, as maintained app ropriate procedures: “‘administrative agencies and administrators will in a Seventh Circuit opinion, for many streamlined cases “it be familiar with the industries which they regu late and will be in a better position than federal courts or Congress itself to design procedural rules makes no practical difference whether the BIA properly or adapted to the peculiarities of the industry and the tasks of the agency improperly streamlined review of [Denko’s] case,” because involved.’” Vermont Yankee Nuclear Power Corp. v. Natural R es. Def. when “we review directly the decision of the IJ when a case Counc il, Inc., 435 U.S. 519, 525 (1978) (quotation omitted). Denko has comes to us from the BIA pursuant to [8 C.F.R. failed to show how more elaborate proceedings would better protect her § 1003.1(a)(7)], our ability to conduct a full and fair appraisal interest in rema ining in the United States, and thus has failed to overcome the governm ent’s strong interest. No. 02-3746 Denko v. INS 23
of [Denko’s] case is not compromised.” Georgis, 328 F.3d at 967 (footnote omitted). Assuming, without deciding, that judicial review properly is employed to assess whether the BIA correctly designated a case for summary affirmance, Denko’s argument that the summary-affirmance-without-opinion procedure was invoked improperly in her case nonetheless must fail. The IJ’s decision to deny the rescission of Denko’s in absentia order of removal was proper because Denko failed to appear for her scheduled hearing although she was warned on numerous occasions that her presence was required. Moreover, because Denko did not produce any evidence other than Wojnar’s letter and Denko’s affidavit to establish ineffective assistance of counsel, the factual and legal issues raised were insubstantial. Denko clearly did not take affirmative steps to accept Wojnar’s offer to request an attendance waiver from the IJ, and Denko’s self-serving affidavit did not give any indication that she would have prevailed in her removal proceedings if only she had had competent counsel. While it may be true that Denko misinterpreted Wojnar’s letter due to Denko’s language barrier, the IJ’s conclusion that Denko should have been diligent to verify with Wojnar the status of Denko’s alleged waiver seems more than appropriate considering the previous warnings which Denko does not suggest she failed to comprehend. Because the facts and legal issues of Denko’s case fit precisely within the boundaries of § 1003.1(a)(7), the Board properly invoked the summary- affirmance-without-opinion procedures. III. CONCLUSION Based on the foregoing conclusions, we AFFIRM the judgment of the IJ and uphold § 1003.1(a)(7)’s streamlining procedures as constitutional and consistent with administrative-law precedent.