Smriko v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: October 26, 2004
• Docket: 03-1085
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

10-26-2004

Smriko v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 03-1085

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation "Smriko v. Atty Gen USA" (2004). 2004 Decisions. Paper 163. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/163

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Peter D. Keisler Anthony Wray Norwood IN THE UNITED STATES COURT Earle B. Wilson OF APPEALS Michael P. Lindemann FOR THE THIRD CIRCUIT John D. Williams Terri J. Scadron (Argued) U.S. Department of Justice NO. 03-1085 Office of Immigration Litigation Ben Franklin Station P.O. Box 878 SEJID SMRIKO Washington, DC 20044 Petitioner

v. OPINION OF THE COURT JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES Respondent STAPLETON, Circuit Judge:

Sejid Smriko was a lawful On Petition for Review of an Order permanent resident of the United States for of the Board of Immigration Appeals less than five years when he committed a A71-685-464 crime involving moral turpitude that, under 8 U.S.C. § 1227(a)(2)(A)(i), subjects one to deportation. Smriko was admitted to the Argued April 16, 2004 United States, however, with “refugee BEFORE: RENDELL, STAPLETON status,” pursuant to a section of the and LAY,* Circuit Judges Immigration and Nationality Act (“INA”) that implements the United Nations (Opinion Filed: October 26, 2004) Protocol Relating to the Status of Refugees. Smriko requested that the Immigration Judge (“IJ”) terminate his James G. Gavin (Argued) removal proceedings because, he argued, 21 West Broad Street refugee status can only be cancelled Burlington, NJ 08016 pursuant to limited grounds specified in Attorney for Petitioner the INA, none of which were met here. The IJ agreed with Smriko that, if he still * Hon. Donald P. Lay, United States had refugee status, he would not be Circuit Judge for the Eighth Circuit, sitting eligible for deportation. The IJ suggested, by designation. however, that when an alien “voluntarily chooses” to “adjust” his status from that of a refugee to that of a lawful permanent deference in making such determinations, resident, the alien loses refugee status and we then examine Smriko’s contention that its accompanying statutory protections. his case was improperly subjected to the Although the IJ did not provide any BIA’s affirmance without opinion process, supporting precedent, he denied Smriko’s thereby erroneously preventing the BIA motion to terminate removal proceedings from offering its interpretation of the based on this reading of the INA. The statutory provision at issue here. We then Board of Immigration Appeals (“BIA” or conclude that, in most situations, we may, “Board”) thereafter summarily affirmed in reviewing a final order of deportation, the IJ’s decision without opinion. Smriko review the BIA’s decision to issue an now petitions for review of the IJ’s affirmance without opinion in a particular decision, as well as the BIA’s decision to case. Here, we conclude that the Board affirm without opinion a case that he member charged with examining Smriko’s maintains raises novel issues of statutory case clearly acted arbitrarily and interpretation. capriciously by issuing an affirmance without opinion, in violation of the BIA’s We first examine the merits of streamlining regulations, with respect to a Smriko’s challenge, and conclude that his case presenting novel and substantial legal view of refugee status–that it can only be issues without precedent. This agency terminated pursuant to specific enumerated action deprived us of a Board grounds contained in the INA–is consistent interpretation of the INA that we believe with the text and some of the legislative the applicable agency regulations intended history of the INA. We then note the us to have before addressing the merits of absence of any precedent counseling in Smriko’s petition. Accordingly, we will favor of or against Smriko’s proposed grant the petition for review and remand so interpretation, and briefly examine the that the BIA may exercise its expertise and Government’s argument that an overall, address Smriko’s proposed reading of the expert examination of our nation’s INA. immigration laws and system would counsel against Smriko’s proposed reading I. of the INA, and, instead, would suggest that the INA “implicitly” contemplates that The facts before us are neither refugees who achieve lawful permanent complicated, nor in dispute. Smriko is a resident status simultaneously lose their native and citizen of Bosnia-Herzegovina refugee status. who was admitted to the United States as a refugee on October 20, 1994 pursuant to Recognizing that the BIA has been 8 U.S.C. § 1157. At some point thereafter, c h a r g e d w i t h p r o v id i n g e x p e rt Smriko was granted lawful permanent interpretations of our nation’s immigration resident status pursuant to 8 U.S.C. § laws and that this Court must give the BIA 1159(a)(2), backdated to his entry date of

2 October 20, 1994. status, and after the BIA’s affirmance without opinion, this petition followed.1 Within five years of his entry into the United States, Smriko was convicted II. on three occasions of retail theft offenses in Pennsylvania and New Jersey. On We have jurisdiction to review a December 26, 1996, he was convicted of final order of removal pursuant to 8 U.S.C. retail theft in violation of 18 Pa. Cons. § 1252(a)(1). See M ulanga v. Ashcroft, Stat. § 3929(a)(1), and sentenced to pay a 349 F.3d 123, 131 (3d Cir. 2003). fine and costs. On April 1, 1997, he was “[W]hen the BIA issues an [affirmance convicted of shoplifting in violation of without opinion] under the streamlining N.J. Stat. Ann. § 2C:20-11b(2), and regulations, we review the IJ’s opinion and received a suspended sentence of five scrutinize its reasoning.” Dia v. Ashcroft, days’ imprisonment. Finally, on April 8, 353 F.3d 228, 245 (3d Cir.2003) (en banc). 1999, he was convicted of retail theft and “ W e review the [agency’s] legal receiving stolen property, in violation of determinations de novo, subject to 18 Pa. Cons. Stat. §§ 3929(a) & 3925(a), established principles of deference.” respectively, and was assessed costs and Wang v. Ashcroft, 368 F.3d 347, 349 (3d sentenced to one year of probation. Cir. 2004) (citing Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 844 (1984)); The former Immigration and see infra note 6 (discussing the propriety N a t u r a l iz a t io n S ervice (“ I.N .S .” ) of giving Chevron deference to an IJ commenced removal proceedings against decision that has been affirmed without Smriko on August 24, 1999, charging him opinion by the BIA). with removability on two statutory grounds: (1) u nde r 8 U .S.C . § III. 1227(a)(2)(A)(i), as an alien convicted of a crime involving m oral turpitude Title 8, Section 1227(a)(2)(A)(i) of committed within five years after his the United States Code, provides, in admission for which a sentence of one year or longer may be imposed; and (2) under 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien 1 The Government initially argued that convicted of two or more crimes involving the jurisdictional bar of 8 U.S.C. § moral turpitude not arising out of a single 1252(a )(2 ) (C ) applied here, and, scheme of criminal misconduct. Smriko accordingly, moved to dismiss the petition argued that his convictions were not for for lack of jurisdiction. The Government crimes involving moral turpitude, but the has since conceded, and we agree, that § IJ rejected that challenge. The IJ also 1252(a)(2)(C) is not implicated in this r e j e cted Smriko’s aforementioned case. Accordingly, we will deny by argument with respect to his refugee separate order the motion to dismiss.

3 pertinent part: crime involving moral turpitude. He argues that shoplifting, the offense for Any alien who–(I) is which he was convicted under § 3925(a), convicted of a c rime is not a “crime involving moral turpitude,” involving moral turpitude essentially because it is a prevalent crime committed within five years in our modern world, and therefore that his . . . after the date of violation of § 3925(a) would not qualify admission, and (II) is him for deportation under 8 U.S.C. § convicted of a crime for 1227(a)(2)(A)(i). which a sentence of one year or longer may be W e recently explain ed, in imposed, is deportable. e x a m ining § 3925( a ) , the v e ry Pennsylvania statute at issue here, that Id. As noted above, Smriko was convicted “[w]hether an alien’s crime is one for receiving stolen property under 18 Pa. involving moral turpitude is determined by Cons. Stat. § 3925(a).2 That conviction the statute and record of conviction rather unquestionably met the criteria of § than the alien’s specific act.” De 1227(a)(2)(A)(i). Smriko committed the § Leon-Reynoso v. Ashcroft, 293 F.3d 633, 3925(a) violation on December 19, 1998, 635 (3d Cir. 2002). That is, “the nature of within five years of his date of admission an alien’s crime is determined by the to the United States. Under Pennsylvania statute and record of conviction, not from law, given the amount of stolen property the specific acts surrounding the involved here, that offense constituted a conviction.” Id. (parenthetically quoting misdemeanor in the third degree, see 18 Alleyne v. I.N.S., 879 F.2d 1177, 1185 (3d Pa. Cons. Stat. § 3903(b)(2), which carried Cir.1989)) (alteration omitted). While we a potential prison sentence of one year, see noted that “[t]he term ‘moral turpitude’ 18 Pa. Cons. Stat. § 1104(3). defies a precise definition,” we indicated that it contains “an ‘honesty’ component . Smriko argues only that his . . , which includes: ‘[c]onduct that is conviction under § 3925(a) was not for a contrary to justice, honesty, or morality.’” Id. at 635-36 (quoting Black’s Law Dictionary 1026 (7th ed. 1999)) 2 (additional citations omitted). After noting That section provides: “A person is that “[c]ourts have held that knowingly guilty of theft if he intentionally receives, receiving stolen property is a crime of retains, or disposes of movable property of moral turpitude,” 293 F.3d at 636, and that another knowing that it has been stolen, or violation of 18 Pa. Cons. Stat. § 3925(a) believing that it has probably been stolen, “speak[s] . . . to the honesty of a person,” unless the property is received, retained, or id. at 637, we determined that a violation disposed with intent to restore it to the of that section amounts to a crime owner.” Id. § 3925(a).

4 involving moral turpitude, id. at 637. De be terminated through a specific statutory Leon-Reynoso clearly controls this case. process before he can be removed begins We accordingly reject Smriko’s insistence with the 1967 United Nations Protocol that his § 3925(a) conviction was not for a Relating to the Status of Refugees, 19 “crime involving moral turpitude.” 3 U.S.T. 6223, T.I.A.S. No. 6577 (the “Protocol”). The United States is a party IV. to the Protocol, which incorporates by reference Articles 2 through 34 of the Our task is not complete, however, 1951 United Nations Convention Relating as Smriko suggests that the INA affords to the Status of Refugees, 19 U.S.T. 6259, him additional protection as one who 189 U.N.T.S. 150 (the “Convention”), see received “refugee status” upon his entry I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, into the United States. While Smriko 427 (1999), and incorporates the definition concedes that 8 U.S.C. § 1227(a)(2)(A)(i) of the term “refugee” found in Article I of subjects a lawful permanent resident, such the Convention. See Protocol Art. I(1) & as himself, to deportation, he argues that (2). the INA only allows one with “refugee status” to be removed under limited Under Article I of the Convention, circumstances. He argues that “refugee entitled “Definition of the term ‘refugee,’” status” coexists with lawful permanent one ceases to be a refugee if any of six resident (“LP R”) status, providing events occur. See Convention Art. I(C). additional protection, and that he cannot be In the case of a refugee in Smriko’s removed unless one of the limited grounds situation, refugee status would not cease under the INA for cancelling refugee until “he has acquired a new nationality, status is met. and enjoys the protection of the country of his new nationality.” Id. I(C)(3). The A. Smriko’s Contention that Refugee United Nations High Commissioner for Status Coexists with LPR Status Refugees has taken the position that this provision “means that the refugee must Smriko’s contention that refugee secure and be able to exercise all the rights status coexists with LPR status and must and benefits entailed by possession of the nationality of the country” before losing refugee status, and because LPR status 3 does not entitle one to the same rights and Having determined that Smriko’s § benefits as a United States national, 3925(a) conviction amounted to a obtaining LPR status is not a basis for the deportable offense under 8 U.S.C. § cessation of refugee status under the 1227(a)(2)(A)(i), we need not address the Convention. See Interpreter Releases, Government’s charge that Smriko’s other Becoming LPR Does Not Terminate convictions amounted to deportable Refugee Status, UNHCR Says, 80 No. 11 offenses.

5 Inter. Rel. 413, App. (2003) (statement nationality, is outside any from Office of the United Nations High country in which such Commissioner for Refugees). pe r son last habitually Accordingly, Smriko argues that the resided, and who is unable Convention contemplates him retaining or unwilling to return to, refugee status even after he achieved LPR and is unable or unwilling to status because attaining LPR status did not avail himself or herself of give him a “new nationality” that would the protection of, that terminate the need for refugee status under country because of the Convention. persecution or a w e l l -f o u n d e d f e a r o f The Refugee Act of 1980, 94 Stat. persecution on account of 102, brought into existence the current race, religion, nationality, definition of “refugee” in the INA, see 8 membership in a particular U.S.C. § 1101(a)(42)(A). The Supreme social group, or political Court has instructed that “[i]f one thing is opinion. . . . clear from the legislative history of the . . . definition of ‘refugee,’ and indeed the Id. “Refugee” is used in many sections of entire 1980 [Refugee] Act, it is that one of the INA. The provision under which Congress’ primary purposes was to bring Smriko was admitted, 8 U.S.C. § U n i t e d States refugee law into 1157(c)(1), authorizes the Attorney conformance with the 1967 United Nations General “in [his or her] discretion and Protocol Relating to the Status of pursuant to such regulations as [he or she] Refugees.” I.N.S. v. Cardoza-Fonseca, may prescribe” to admit a limited number 480 U.S. 421, 436 (1987). Accordingly, of “refugees” annually. Refugees admitted Smriko insists that the definition of under 8 U.S.C. § 1157, such as Smriko, “refugee” found in the INA and the may then become lawful permanent accompanying provisions for giving aliens residents after one year pursuant to 8 “refugee status,” which we address below, U.S.C. § 1159(a)–the key statutory are to be construed as implementing the provision at issue here. This section, protections for refugees found in the permitting refugees to obtain LPR status, Convention. speaks only of refugees who qualify being “regarded as lawfully admitted to the Title 8, United States Code Section United States for permanent residence 1101(a)(42)(A), defines a “refugee” as [after one year],” id. § 1159(a)(2) (emphasis added), and does not explicitly any person who is outside provide for the termination of refugee any country of such person’s status upon one being “regarded as” a nationality or, in the case of lawful permanent resident. The absence of a p e r s o n h a v i n g no language terminating refugee status in §

6 1159(a), Smriko contends, is consistent refugee status of any alien . . . pursuant to with the definition of refugee found in § such regulations as the Attorney General 1101(a)(42)(A), which does not indicate may prescribe if the Attorney General any particular time when one ceases to be determines that the alien was not in fact a a refugee. Thus, Smriko argues, contrary refugee . . . at the time of the alien’s to the IJ’s suggestion, becoming an LPR admission.” Id. The implementing under the text of the statute provides only regulations for that section further require additional benefits for those with refugee that the refugee be given “notice in status and does not terminate refugee writing” of the Government’s intent to status, consistent with Congress’s intent to “terminate the alien’s refugee status,” implement the Protocol, which would along with 30 days in which to prepare require Smriko to maintain refugee status evidence to be presented at a hearing to until achieving protection equivalent to show cause “why the alien’s refugee status that of a United States national. should not be terminated.” 8 C.F.R. § 207.9. Furthermore, the regulations Other immigration law, Smriko indicate that “[u]pon termination of suggests, also contemplates refugee status refugee status[] the district director shall persisting after lawful permanent resident process the alien under [the INA’s status is obtained. While, as discussed provisions for removal].” Id. Thus, above, a refugee may be “regarded as” a Smriko argues, if the Government wishes lawful permanent resident after one year, to seek his removal under the INA, the see 8 U.S.C. § 1159(a)(1), 8 C.F.R. § statute and its implementing regulations 207.7 allows the family members of a provide an explicit process for first “refugee,” under some circumstances, to removing his refugee status–a procedure obtain derivative refugee status if they not followed here–and then processing him apply within two years of the principal for removal. Had Congress sought to refugee’s admission, thereby utilizing the remove refugee status for aliens who principle alien’s refugee status even after become lawful permanent residents under he or she received LPR status. § 1159(a)(1), it could have explicitly provided for removing that status as it did Moreover, Congress and the in § 1157(c)(4). 4 Department of H omeland Secu rity (through its implementing regulations) have explicitly provided for a means of 4 Smriko also urges that his removing refugee status, consistent with interpretation is supported by the BIA’s the Protocol and apart from the IJ’s decision in Matter of Medrano, 20 I. & N. suggestion that refugee status is Dec. 216 (BIA 1990). There, an alien had “implicitly” forfeited upon becoming an been granted lawful temporary resident LPR. Under 8 U.S.C. § 1157(c)(4), the status through the amnesty provisions of Attorney General may terminate “[t]he the Immigration Reform and Control Act

7 Smriko concedes that his proposed Convention). He agrees that under the construction of the INA would offer those Convention, “[e]very refugee has duties to with refugee status more protection than the country in which he finds himself, other lawful permanent residents, but which require in particular that he conform argues that this was Congress’s intent in to its laws and regulations,” Convention, i m pl em e nting the P roto c o l ( a nd Art. II, but notes that the violation of any criminal law is not, in and of itself, grounds for terminating refugee status under that agreement. While he is liable of 1986, see 8 U.S.C. § 1255a, and then for violating criminal laws in the same was convicted of a crime that would manner as a United States citizen would ordinarily subject an alien to deportation. be, he argues that Congress, in At the time of the BIA’s decision in implementing the Protocol, intentionally Medrano, the implementing regulations limited the grounds for cancelling refugee providing for cancellation of temporary status because it intended to give refugees resident status under § 1255a, not unlike 8 heightened protection (as compared to C.F.R. § 207.9 and its requirements for other aliens) in light of the traumatic removing refugee status, allowed for conditions they have fled. Because he cancellation where the Government views § 1159(a)(2), allowing for those provided notice of its intent to remove and with refugee status to become “regarded an opportunity to offer evidence in as” lawful permanent residents, as not opposition, 8 C.F.R. § 245a.2(u)(2). An IJ terminating his refugee status, he suggests determined that the Government would that the Government could only have have to terminate Medrano’s temporary cancelled his refugee status under § resident status through § 245a.2(u)(2) prior 1157(c)(4). In light of the Government not to initiating deportation proceedings based even having attempted to cancel his upon his having committed a crime that refugee status under § 1157(c)(4) or would ordinarily otherwise subject an alien having followed the procedure outlined to deportation, and the BIA affirmed. under 8 C.F.R. § 207.9 for doing so, Citing Medrano, Smriko argues that the Smriko argues that he has been improperly procedures set forth at 8 C.F.R. § 207.9 for subjected to removal proceedings. removing refugee status must also be met here before removal proceedings can be B. The Government’s Response initiated against him. Medrano, however, is not particularly helpful here, as in front The Government concedes that of the BIA the Government there “[t]he statutory definition of ‘refugee’ [in “removed its opposition to the decision of 8 U.S.C. § 1101(a)(42)(A)] speaks in the the immigration judge,” Medrano, 20 I. & present tense [and] imposes no temporal N. Dec. at 218, and the BIA accordingly l i m it a t io n o n r e f u g e e s t a t u s . ” saw “no reason to disturb the immigration Respondent’s Brief at 15. Moreover, the judge’s decision.” Id. at 218-19.

8 Government does not appear to dispute permanent resident status pursuant to § that nothing in the INA expressly 1159(a)(2). terminates refugee status once a refugee achieves LPR status pursuant to 8 U.S.C. First, the government looks to the § 1159(a)(2). Instead, the government conference report from the Refugee Act of argues that 1980. The conference report indicates that the Senate’s bill originally provided that, [i]n practice, however, all absent emergency situations, refugees sources of domestic law, would be admitted as lawful permanent including the INA and its residents (with there simply being no such support ing regu latio ns, thing as refugee status), while an administrative and judicial amendment in the House provided for “all case law, and the practices refugees entering the United States [to] be of the INS, the Department admitted conditionally as ‘refugees’ with of Homeland Security, and retroactive adjustment of status to lawful the Executive Office for permanent residents after two years.” H.R. Immigration Review, reason Conf. Rep. No. 96-781, at 21 (1980), that when a “refugee” reprinted in 1980 U.S.C.C.A.N. 160, 162. adjusts to “lawful permanent The Committee of Conference adopted the resident” . . . status, he no House Amendment, but “with adjustment longer is considered to be in of status permitted after a period of one “ r e f u g e e ” s t a tu s f o r year.” Id. The Government also looks to purposes of United States a statement by Senator Edward Kennedy, immigration and nationality the Senate bill’s chief sponsor, who law. Rather, he either indicated that maintains his LPR status and may subseq uentl y the Conferees compromised n a t u r a li z e to U .S . on the House version and citizenship, or possibly, may established a new ‘refugee’ lose his LPR status and admission status–different become a deportable alien from either the present under [8 U.S.C. § 1227]. ‘ c onditional entry’ or ‘parolee’ status. This new Respondent’s Brief at 15-16 (emphasis status will end after only added). The Government then presents one year–rather than two legislative history, INA provisions, ye ars–after w hich th e implementing regulations, and two BIA refugee can adjust to decisions that, it suggests, implicitly permanent resident status. contemplate the termination of refugee This one year ‘refugee’ status once an alien receives lawful status would also be counted

9 towards the five-year period Finally, the Government looks to required for naturalization. two BIA decisions, neither of which addresses Smriko’s argument that the 126 Cong. Rec. S3756-57 (daily ed. Feb. INA’s protections for refugees, as drafted 26, 1980). Thus, the Government argues by Congress in implementing the Protocol, that “refugee status” was intended to be a co-exist with lawful permanent resident conditional status, and was intended to end status and must be terminated prior to the after one year. initiation of removal proceedings. One decision briefly suggests, without analysis, The Government further notes that that once a refugee adjusts to LPR status, 8 U.S.C. § 1159(a) calls for, at the end of the “former” status as a refugee does “not one year, a refugee who has not yet provide a basis for terminating [removal] “acquired” lawful permanent resident proceedings.” In re Bahta, 22 I. & N. Dec. status to be “returned to the custody of the 1381, n.2 (BIA 2000). The other suggests Service for inspection and examination,” that one in Smriko’s position–i.e., one who id. § 1159(a), and processed “in has not had his refugee status terminated accordance with” the removal provisions (based on a determination that he was not of the INA unless the alien is adjudged a refugee at the time of his admission) “admissible” at that time and can therefore under INA § 207, 8 U.S.C. § 1157, and be “regarded as lawfully admitted,” id. § who has not been determined to be 1159(a)(2). Because § 1159(a) does not inadmissible following his examination by reference any special procedure for an immigration officer under INA § terminating refugee status before removing 209(a)(1), 8 U.S.C. § 1159(a)(1),–is not one not admissible at the end of the one properly placed in exclusion proceedings. year period, the Government argues that Matter of Garcia, 19 I. & N. Dec. 407 this provision supports the view that (BIA 1986). Neither decision addresses refugee status is conditional and what the government terms to be Smriko’s disappears for one who is admissible and “novel,” Respondent’s Brief at 9, does obtain LPR status.5 argument–that the INA’s provisions pertaining to “refugee status,” read in light

5 The Government also suggests that no provision of the INA “confer[s] any aliens”)). Contrary to the Government’s authority on an immigration judge to suggestion, however, Smriko only argues engage in the sort of termination process that an IJ cannot conduct removal proposed by Smriko before adjudicating a proceedings until his refugee status has lawful permanent resident’s removability been terminated in accordance with the from the United States.” Respondent’s process set forth at 8 C.F.R. § 207.9, and Brief at 17-18 (citing 8 U.S.C. § 1227(a) does not argue that IJ’s must engage in any (setting forth the classes of “deportable special “termination process.”

10 of Congress’s intent to implement the issue,” our role is to determine “whether Protocol, provide extremely limited the agency’s answer is based on a grounds for terminating his refugee status, permissible construction of the statute.” none of which was met here. Id. (internal quotation marks omitted).

C. Discussion Although the INA is ambiguous with respect to Smriko’s challenge and “The first step in interpreting a Smriko has marshaled at least some statute is to determine whether the legislative history in support of his language at issue has a plain and proposed construction, we are without, in unambiguous meaning with regard to the this case, an “agency answer” to examine particular dispute in the case.” Ki Se Lee and potentially defer to. The BIA v. Ashcroft, 368 F.3d 218, 222 (3d Cir. answered Smriko’s “novel” challenge by 2004) (internal quotation marks omitted). assigning his case to a single member who At issue here is whether Smriko, in affirmed without opinion the decision of becoming “regarded as lawfully admitted the IJ, whose decision therefore became to the United States for permanent the final agency determination pursuant to residence,” 8 U.S.C. § 1159(a)(2), lost his the agency’s affirmance without opinion refugee status. As we have indicated, § regula tions, see 8 C .F.R . § 1159(a)(2) does not unambiguously 1003.1(e)(4)(ii). Pursuant to those describe what happens to an alien’s regulations, “[s]uch an order approves the refugee status once he or she becomes result reached in the decision below[, but] “regarded as” a lawful permanent resident. does not necessarily imply approval of all Of course, “if the intent of Congress is of the reasoning of that decision,” id. clear . . . the court, as well as the agency, must give effect to the unambiguously In its entirety, the IJ’s response to e x p r e s s ed i n t e n t o f C o n g r e s s . ” Smriko’s proposed statutory construction Coraggioso v. Ashcroft, 355 F.3d 730, 733 consisted of the following: (3d Cir. 2004) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 [W]hile the motion for U.S. 837, 842-43 (1984)) (internal termination would have quotation marks omitted). We are left been granted had th e here, however, with Congressional intent respondent remained a that is, at least to some degree, in conflict: refugee, the respondent the goal of implementing the Protocol unfortunately in this case versus, potentially, the desire to create a had adjusted his status to “conditional” status for a single year. In that of a lawful permanent such situations, where there is conflicting resident, pursuant to Section legislative history and “the statute is silent 209 of the [INA, 8 U.S.C. § or ambiguous with respect to the specific 1159]. The respondent

11 voluntarily chose to adjust that where an “IJ offer[s] no reasoning and his status and certainly there cite[s] no authority . . . we have no basis are benefits and rewards in on which to conclude that the IJ’s reading acquiring the status of a and application of [a statute is] lawful permanent resident ‘reasonable’ and therefore entitled to and respondent has not deference under Chevron[].” Berishaj v. provided any precedent Ashcroft, 378 F.3d 314, 327 (3d Cir. decisions or any other legal 2004). As in Berishaj, the IJ here offered basis for the proposition that no analysis of the relevant statutory a lawful permanent resident provisions or authority to which we may also retains the status of a defer. Thus, we are left to review an IJ’s refugee, pursuant to Section 207 [of the INA, 8 U.S.C. § 1157]. be the case. Where, as here, the BIA has IJ’s Op. at 2. Even assuming arguendo affirmed without opinion the decision of that an IJ’s decision affirmed without the IJ, under 8 C.F.R. § 1003.1(e)(4)(ii), its opinion pursuant to the streamlining affirmance “approves the result reached in regulations would otherwise be entitled to the decision below[, but] does not Chevron deference,6 we recently explained necessarily imply approval of all of the reasoning of that decision,” id. As Aguirre-Aguirre determined that the BIA’s 6 The Supreme Court has determined case-by-case decision-making should be that “the BIA should be accorded Chevron accorded Chevron deference, it would deference as it gives ambiguous statutory seem to be, at the very least, an open terms concrete meaning through a process question as to whether an IJ’s decision o f c a s e - b y - c a s e a d j u d ic a t io n .” affirmed through the streamlining process Aguirre-Aguirre, 526 U.S. at 425 would be entitled to Chevron deference. (emphasis added; internal quotation marks Although the BIA has directed us to omitted). Citing Aguirre-Aguirre, we review the IJ’s opinion in streamlined recently stated in a dictum that “the BIA’s cases, deferring to the reasoning of an IJ (and hence the IJ’s) interpretation of the from which the BIA would be free to INA is subject to established principles of depart in other cases would seem highly deference.” Coraggioso, 355 F.3d at 733 problematic. We need not resolve this (emphasis added). Aguirre-Aguirre, issue here, however, because the IJ, as however, did not determine that the explained above, offered no analysis or opinion of an IJ, when affirmed without precedent to which we could defer. We opinion by the BIA’s streamlining process, ultimately decide to remand to the BIA is entitled to Chevron deference, and it rather than the IJ because that course is does not necessary follow that such would required by the regulations.

12 opinion that does not analyze the statutory the number of cases having increased interpretation issue at hand, with a single exponentially in a little over a decade.” BIA member having issued an affirmance Dia, 353 F.3d at 235. The portion of those without opinion that precluded the BIA regulations describing the affirmance from providing its interpretation of the without opinion process employed here statutory provision at issue, purportedly provides that: pursuant to the agency’s “streamlining regulations,” which we will describe in (i) The Board member to detail below. whom a case is assigned shall affirm the decision of Smriko raises an additional the Service or the challenge, however, to the process by immigration judge, without which his case arrived at the Court of opinion, if the Board Appeals without having such an agency member determines that the answer. While he recognizes that the BIA result reached in the acted within its authority to promulgate the decision under review was streamlining regulations and did not, per correct; that any errors in se, violate his Due Process rights by doing the decision under review so, see Dia, 353 F.3d at 236-43, he argues were harmless or that the BIA erred in its application of the nonmaterial; and that streamlining regulations to his case. See Berishaj, 378 F.3d at 331 (“Though the en (A) The banc Court in Dia approved the issues on streamlining regulations over a statutory appeal are and Constitutional challenge, it does not squarely follow that the regulations are not subject controlled by to misuse and even abuse.”). He suggests e x istin g that we may review the single Board Board or member’s application of the streamlining federal court regulations, and that the Board member precedent and erred here because, under those d o n o t regulations, his case could not have involve the possibly qualified for streamlining. application of precedent to a V. novel factual situation; or As we recently explained in Dia, “[t]he Attorney General promulgated the (B) The streamlining regulations in 1999 when the factual and Board was faced with a crushing caseload, legal issues

13 raised on that, under any standard of review, the appeal are not single BIA member assigned to his case so substantial erred in subjecting it to the affirmance that the case without opinion process described above warrants the because the IJ’s decision was not correct, issuance of a id. § 1003.1(e)(4)(i), her errors were not w r i t t e n harmless, id., his case was not “squarely opinion in the controlled” by existing Board or federal case. court precedent, id. § 1003.1(e)(4)(i)(A), and his case did not raise issues so (ii) If the Board member insubstantial that a written opinion would determines that the decision be unwarranted, id. § 1003.1(e)(4)(i)(B). should be affirmed without opinion, the Board shall The Government counters that issue an order that reads as application of the above standards entails follows: “The Board a “complicated balancing of a number of affirms, without opinion, the factors” only comprehensible to the single result of the decision below. Board member, and contends that it is The decision below is, simply “not possible to devise an adequate therefore, the final agency standard of review” for determining determination. See 8 CFR whether there is precedent that “squarely 1003.1(e)(4).” An order controls” the present case and whether the affirming without opinion, issues raised are “not so substantial,” issued under authority of especially so because the regulations this provision, shall not require the single Board member issuing a include further explanation streamlining order to provide no or reasoning. Such an order reasoning, see id. § 1003.1(e)(4)(ii). We approves the result reached first address the Administrative Procedure in the decision below; it Act’s (“APA”) “basic presumption of does not necessarily imply judicial review. . . .” Lincoln v. Vigil, 508 approval of all of the U.S. 182, 190 (1993); see Calle-Vujiles v. reasoning of that decision, Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003) but does signify the Board’s (“there is a strong presumption that conclusion that any errors in Congress intends judicial review of the decision o f the administrative action”). We then turn to immigration judge or the the limited category of administrative Service were harmless or decisions committed to agency discretion, nonmaterial. and determine whether a single Board member’s application of the streamlining 8 C.F.R. § 1003.1(e)(4). Smriko argues regulations is such a decision.

14 A. The Availability of Judicial Review Smriko contends that the single Board member charged with applying the Under the APA, any “person streamlining regulations clearly failed to suffering legal wrong because of agency follow those regulations by subjecting his action, or adversely affected or aggrieved case to the affirmance without opinion by agency action within the meaning of a process without the regulatory criteria for relevant statute, is entitled to judicial doing so having been met. He insists that review.” 5 U.S.C. § 702. Decisions of the this erroneous application of the BIA are agency actions within the meaning regulations is judicially reviewable under of the APA. 5 U.S.C. § 701(b)(1). The the APA as interpreted by the Supreme only exceptions to this general rule are Court in I.N.S. v. Yueh-Shaio Yang, 519 situations in which “(1) statutes preclude U.S. 26 (1996). The Court there held in judicial review; or (2) agency action is the context of a review of BIA action: committed to agency discretion by law.” 5 U.S.C. § 701(a). Where the governing Though the agency’s statute provides for “special statutory discretion is unfettered at review ,” as does § 242 of the INA, 8 the outset, if it announces U.S.C. § 1252, that is the form that the and follows–by rule or by required judicial review will take. 5 settled course of U.S.C. § 703. Under the INA, in a d j u d i ca tion–a ge ne r a l reviewing a final order of removal policy by which its exercise pursuant to 8 U.S.C. § 1252, the Court of of discretion w ill be Appeals may “review . . . all questions of governed, an irrational law and fact, including interpretation and departure from that policy application of constitutional and statutory (as opposed to an avowed provisions, arising from any action taken alteration of it) could or proceeding brought to remove an alien constitute action that must from the United States. . . .” Id. § be overturned as “arbitrary, 1252(b)(9) (emphasis added). Similarly, capricious, [or] an abuse of Section 704 of the APA provides: “A discretion” with in the preliminary, procedural, or intermediate meaning of the agency action or ruling not directly Administrative Procedure reviewable is subject to review on the Act, 5 U.S.C. § 706(2)(A). review of the final agency action.” 5 U.S.C. § 704. Thus, our review of a final Yueh-Shaio Yang, 519 U.S. at 32. agency action, generally speaking, encompasses all of a petitioner’s Based on Yueh-Shaio Yang and the contentions of legal error by the agency at APA, it seems clear that we have any stage of the agency’s proceedings. jurisdiction to review the here challenged application of the streamlining regulations

15 so long as the INA does not preclude that Given that the INA clearly does not judicial review and the issues so presented preclude review, we now turn to whether are not committed to agency discretion. 7 the relevant issues are committed to agency discretion by law.

7 B. Actions Committed to an Agency’s In Marcello v. Bonds, 349 U.S. 302, Discretion 309-10 (1955), the Supreme Court determined that the hearing provisions of Section “701(a)(2) [of the APA] the APA do not apply to agency hearings makes it clear that ‘review is not to be had’ conducted pursuant to the INA. See in those rare circumstances where the Ardestani v. I.N.S., 502 U.S. 129, 133-34 relevant [law] ‘is drawn so that a court (1991) (“[In Marcello, we] held that the would have no meaningful standard INA expressly supersedes the hearing against which to judge the agency’s provisions of the APA in light of the exercise of discretion.’” Lincoln, 508 U.S. background of the 1952 immigration at 190-91 (quoting Heckler v. Chaney, 470 legislation, its laborious adaptation of the U.S. 821, 830 (1985)). The Government [APA] to the deportation process, the insists that the situation before us is one of specific points at which deviations from those “rare circumstances,” likening an the [APA] were made, the recognition in individual Board member’s decision on the legislative history of this adaptive whether to direct that a written merits technique and of the particular deviations, decision on an alien’s appeal be issued to and the direction in the statute that the the role of an agency accorded absolute methods therein prescribed shall be the discretion in determining whether to sole and exclusive procedure for institute enforcement proceedings, see deportation proceedings.”) (internal Heckler, 470 U.S. at 831 (“an agency’s quotation marks omitted). As the decision not to prosecute or enforce, government tac itly a cknow ledges, whether through civil or criminal process, however, “[a]lthough the detailed hearing is a decision generally committed to an procedures specified by the APA do not agency’s absolute discretion”). Heckler apply to hearings under the [INA], see involved the Food and Dru g Marcello[], the judicial review provisions Administration’s (“FDA”) decision to do, see Shaughnessy v. Pedreiro, 349 U.S. refrain from instituting enforcement 48, 75 S.Ct. 591, 99 L.Ed. 868 (1955).” proceedings with respect to drugs used in I.N.S. v. Doherty, 502 U.S. 314, 330 administering lethal injections. The (1992) (Scalia, J., concurring and Supreme Court determined that there was dissenting). As Yueh-Shaio Yang holds, “no law to apply” in the Federal Food, the judicial review provisions of the APA, 5 U.S.C. § 706(2)(A), apply to decisions of the BIA on issues not committed to agency discretion. Yueh-Shaio Yang, 519 U.S. at 32.

16 Drug, and Cosmetic Act against which a These criteria are clearly intended court could review the FDA’s decision not to require the single BIA member to to bring enforcement proceedings. Id. at determine whether the correct outcome 830-31. was reached and, if so, whether a Board opinion would have significant value in Under the streamlining regulations, the context of an appeal of the matter or in in contrast, in order to affirm without an the context of other matters yet to be opinion, several specific criteria must be adjudicated. We agree with the Tenth met: (1) the “result reached in the decision Circuit Court of Appeals that “they have under review [must be] correct;” (2) any nothing to do with the BIA’s caseload or “errors in the decision under review [must other internal circumstances.” Batalova v. be] harmless or nonmaterial; and (3) “(A) Ashcroft, 355 F.3d 1246, 1253 (10th Cir. [t]he issues on appeal [must be] squarely 2004); see also Denko v. I.N.S., 351 F.3d controlled by existing Board or federal 717, 732 (6th Cir. 2003) (“the size of the court precedent and . . . not involve the BIA’s caseload–a factor which the Board application of precedent to a novel factual may be better equipped to assess–has no situation” or “(B) [t]he factual and legal relevance in deciding which cases are issues raised on appeal [must be] not so appropriate for summary affirmance”). substantial that the case warrants the Rather, these criteria present “the kinds of issuance of a written opinion in the case.” issues [courts] routinely consider in 8 C.F.R. § 1003.1(e)(4)(i). All three of reviewing cases,” Batalova, 355 F.3d at these criteria must be met in order for a 1253, and provide amply sufficient “law” case properly to be streamlined.8 for courts to apply. The fact that they may require the exercise of some discretion on the part of the single BIA member that 8 may be deserving of some deference is, of Heckler also noted that at issue there course, not relevant; the APA expressly was the reviewability of an agency’s authorizes review of the exercise of refusal to exercise its powers, as opposed discretion for abuse. to where, as here, an agency has exercised its coercive power over an individual. See The government’s insistence that § Heckler, 470 U.S. at 832 (“[W]e note that 1003.1(e)(4)(i) requires a single BIA when an agency refuses to act it generally member to assess the availability of does not exercise its coercive power over agency resources is based upon subsection an individual’s liberty or property rights, B and its reference to whether the “issues and thus does not infringe upon areas that raised upon appeal are not so substantial courts often are called upon to protect. that the case warrants the issuance of a Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner.”) (emphasis in original).

17 written opinion,” id. § 1003.1(e)(4)(i)(B). will be assigned to a three member panel However, this language focuses upon the for disposition. If the case is more lack of importance of the issues, not significant than an (e)(4) case and less backlog and the availability of resources to significant than an (e)(6) case, the single produce an opinion. Moreover, the BIA member will decide the merits of the government’s argument ignores the fact appeal by himself and issue “a brief order, that § 1003.1(e)(4)(i) is only one part of an affirming, modifying or remanding” under overall case management system that is § 1003.1(e)(5). In short, the regulations do based solely on the correctness of the not call upon single BIA members to result and the institutional value that an evaluate the resources available at a opinion would have. Under subsection particular time. Rather, the regulations 1003.1(e), a single BIA member who is themselves allocate whatever decision- assigned a case “shall” do one of three making resources the agency has, calling things. If the result is correct and the upon single BIA members to follow the institutional value of an opinion would be criteria contained in the regulations for so low that the criteria of (e)(4) are met, he allocating those resources. must affirm without opinion. On the other hand, if the case presents one of the Nor are we impressed with the c i r c u m s ta n c e s e n u m e r a t e d in § gove r n m e nt’ s sugg estion th at § 1003.1(e)(6), all relating to the institutional value of an opinion,9 the case immigration judge or the Service that is not in 9 Subsection (e)(6) provides: conformity with the law or Panel Decisions. Cases may with applicable precedents; only be assigned for review (iv) The need to by a three-member panel if r e s o lv e a c a s e or the case presents one of c o n t r o v e r s y of m ajo r these circumstances: national import; (i) The need to settle (v) The need to inconsistencies among the review a clearly erroneous r u li n g s o f di f f e r en t factual determination by an immigration judges; immigration judge; or (ii) The need to (vi) The need to establis h a p r e c e d e nt reverse the decision of an construing the meaning of immigration judge or the l a w s , r e g u l a t i o n s, o r Service, other than a procedures; reversal under § (iii) The need to 1003.1(e)(5). review a decision by an 8 C.F.R. § 1003.1(e)(6).

18 1003.1(e)(4)(ii) precludes a single BIA standard against which to judge the member from explaining his or her agency’s exercise of discretion.” Heckler, decision to streamline and that this 470 U.S. at 830.10 somehow deprives a reviewing court of law to apply. First, reading this section in context, we understand it to preclude any 10 See Haoud v. Ashcroft, 350 F.3d 201, explanation of the member’s reason for 206 (1st Cir. 2003) (“the Board’s own affirming the IJ’s decision so that the IJ’s regulation provides more than enough decision will stand alone as the final ‘law’ by which a court could review the agency decision. We do not read it as Board’s decision to streamline”); Denko, precluding comment regarding the 351 F.3d 717 at 731 (“this argument for decision to streamline, and there may be committing this decision [to streamline] to rare situations in which the member might the agency’s discretion is doubtful because find it helpful to file brief comments on there are judicially manageable standards this subject. More importantly, however, available to a reviewing court”); Chen v. the law to be applied is provided by the Ashcroft, 378 F.3d 1081, 1086-87 (9th Cir. criteria of the regulations, and it will be the 2004) (review ing “w hethe r either rare case, indeed, where the reviewing subsection” of the streamlining regulations court, having received the administrative applied to alien’s administrative appeal, record and the briefs of the parties, will a nd r e ma nding bec a use “ ne ith er have any difficulty, without more, reaching subsection (A) nor subsection (B) of the a decision as to whether the member was streamlining regulation permit[ted] so wide of the mark in applying those summary affirmance” where alien raised criteria that his action can be characterized “a novel legal and factual issue”); as arbitrary and capricious. Batalova, 355 F.3d at 1252-53 (10th Cir. 2004) (criteria in streamlining regulations We hold that the issues addressed address “the kinds of issues we routinely by single BIA members under § consider in reviewing cases, and they have 1003.1(e)(4)(i) of the streamlining nothing to do with the BIA’s caseload or regulations are not committed to agency other internal circumstances”). But see discretion and that the resolutions of those Ngure v. Ashcroft, 367 F.3d 975, 987 (8th issues are judicially reviewable. Cir. 2004) (concluding that “[l]ike other decisions committed to agency discretion C. The Approach of Other Courts by law, th e BIA ’s stream lining determination involves a complicated All but one of the other Circuit balancing of a number of factors which are Courts that have addressed the issue have peculiarly within its expertise, including agreed or suggested that the affirmance the size of the BIA’s caseload and the without opinion regulations contain limited resources available to the BIA”) sufficient “law” to provide a “meaningful (internal quotation marks and citations

19 The Eighth Circuit in Ngure parted In support of this view, Ngure company from the majority approach quoted from the D.C. Circuit’s decision in largely based upon its interpretation of the Pad ula . The r e , f ac e d w ith a “not substantial” third factor found in the pronouncement from the Director of the affirmance without opinion regulations. Federal Bureau of Investigation (“FBI”) Ngure determined that “[w]hether a regarding the FBI’s hiring policy with particular case ‘warrants the issuance of a respect to homosexuals and other letters written opinion’ is necessarily a function written by FBI personnel to law schools of the BIA’s limited resources at a regarding that policy, the D.C. Circuit set particular point in time, and the views of forth the above maxim that these types of members of the BIA as to whether those “agency statements” would only be limited resources should be dedicated to “transformed into a binding norm if so writing an opinion in a given case.” intended by the agency.” Padula, 822 Ngure, 367 F.3d at 986. As we have F.2d at 100. While Padula understandably indicated, we respectfully disagree with looked to agency intent only to determine this view. whether an informal statement by an agency constituted a “binding norm” such Ngure also gave considerable that departure from that statement could weight to the legal proposition that an “an amount to arbitrary and capricious action, agency pronouncement is transformed into Ngure extended its use of agency intent to a binding norm if so intended by the also look at whether an agency intended agency, and agency intent, in turn, is for a formal regulation to be binding upon ascertained by an examination of the its officers. This use of agency “intent” in statement’s language, the context, and any promulgating regulations would seem to available extrinsic evidence.” Ngure, 367 turn on its head the “basic presumption of F.3d at 982 (quoting Padula v. Webster, judicial review” embodied in the APA, 822 F.2d 97, 100 (D.C. Cir. 1987)) Lincoln, 508 U .S. at 190, the maxim that (internal quotation marks, citations, and agency regulations “have the force of alterations omitted; emphasis added). That law,” Marshall v. Lansing, 839 F.2d 933, is, Ngure suggested that whether an 943 (3d Cir. 1988), and the requirement agency intended for its own compliance that “regulations validly prescribed by a with its regulation to be judicially government administrator are binding reviewable is relevant to whether an upon him as well as the citizen,” Service v. agency’s action in applying that regulation Dulles, 354 U.S. 363, 372 (1957). See is committed to agency discretion under Vitarelli v. Seaton, 359 U.S. 535, 539-40 the APA. (1959) (applying Dulles); see also Webster v. Doe, 486 U.S. 592, 602 n.7 (1988) (“[an] Agency’s failure to follow its own regulations can be challenged under the APA”). If we routinely begin to look to an omitted).

20 agency’s intent (with respect to whether its timely dispositions, but do not affect the own compliance with its regulations validity of any decision issued by the should be subject to judicial review) in Board and do not, and shall not be promulgating regulations, as Ngure would interpreted to, create any substantive or have us do, we may well find that agencies procedural rights enforceable before any never desire judicial review, and would immigration judge or the Board, or in any rather be left unchecked in the exercise of court of law or equity.” 8 C.F.R. § their powers. 1003.1(e)(8)(vi) (emphasis added). Thus, the regulations specifically contemplate Contrary to Ngure’s suggestion, we that the Board’s compliance with do not read American Farm Lines v. Black provisions establishing time limits for the Ball Freight Service, 397 U.S. 532 (1970), adjudication of appeals will not be subject as abandoning the Supreme Court’s long- to judicial review. No similar statement is standing requirement–evidenced in Dulles, made with respect to an individual Board Vitarelli, and Webster–that an agency member’s application of the affirmance comply with its own regulations. We note, without opinion regulations under 8 C.F.R. however, that even assuming arguendo § 1003.1(e)(4), thus undermining the that courts should look to an agency’s notion that the agency did not “intend” for “intent” to allow for judicial review in judicial review of the affirmance without promulgating a regulation, it is doubtful opinion procedure. that the agency here sought to preclude a Board member’s application of the D. Review of the Decision To Affirm streamlining regulations from judicial Without Opinion review. A careful review of the streamlining regulations indicates that they Having concluded that the decision specifically contemplate Board members to streamline is judicially reviewable, the being governed by the ag en cy’s correct disposition of the merits of the regulations. See 8 C.F.R. § 1003.1(d)(1)(i) petition to review is clear. The issue (“The Board shall be governed by the Smriko presents is not “squarely controlled provisions and limitations prescribed by by existing Board or federal court applic able law , regulations, a nd precedent.” Nor, we conclude, can that procedures. . . .”). The regulations then issue be disregarded as legall y indicate that with respect to, for example, insubstantial. As the Government one aspect of the case management system acknow ledges, “Smirko’s [proposed involving the time limits within which a statutory constructions], if accepted as a Board member is expected to adjudicate an correct interpretation of the statutory administrative appeal, “[t]he provisions [of scheme, could upset final removal orders the regulations] establishing time limits for that have been entered against thousands the adjudication of appeals reflect an of criminal aliens . . . ,” as well as affect internal management directive in favor of the outcome of thousands of proceedings

21 yet to come. Given this fact, together with of substantial importance. It is foreseeable the fact that Smriko’s argument is both that there will be a number of situations plausible and not directly contradicted by like the one before us in which an arbitrary statutory text, regulations, or relevant and capricious decision to streamline will precedent, we have no choice but to hold the potential for distorting the judicial conclude that this decision to streamline review that both the regulations and was arbitrary and capricious. Congress contemplated. When that is the case, a remand for further BIA VI. proceedings is appropriate.

In many situations where a petition In Haoud, for example, the First for review challenges a streamlining Circuit granted a petition for review decision, that decision will have no because the affirmance without opinion material impact on a court’s exercise of its process had been used “to deny [the judicial review function. In most, it will Court’s] legitimate review power [because be readily apparent that the decision is not the Court was] left without a proper basis arbitrary or capricious. In many, the to . . . evaluate the Board’s own critical reviewing court may simply choose to analysis,” Haoud, 350 F.3d at 205. Haoud address the merits of the IJ’s decision had presented to the Board a recent BIA without resolving the procedu ral case that was seemingly indistinguishable challenge.11 Nevertheless, we believe the from his own wherein the IJ had reached a decision we here make on reviewability is contrary result, yet the Board affirmed the IJ’s determination in his case without opinion. The First Circuit remanded 11 because the affirmance without opinion The Seventh Circuit Court of Appeals prevented the BIA from “fully explain[ing has suggested, correctly it would seem, why it] reasonably depart[ed] from its own that, with respect to many cases that are precedent,” id. at 207, in violation of the improperly streamlined, “it makes no settled maxim that “[a]dministrative practical difference whether the BIA agencies must apply the same basic rules properly or improperly streamlined to all similarly situated supplicants,” id. at review.” Georgis v. Ashcroft, 328 F.3d 207 (citation omitted). 962, 967 & n.4 (7th Cir. 2003); see also Denko, 351 F.3d 717, 732 (6th Cir. 2003) Similarly, the Fifth Circuit recently (agreeing with the Seventh Circuit that remanded a streamlined case to the BIA “for many streamlined cases” it makes “no where the IJ had suggested multiple practical difference” whether the BIA grounds for denying relief, one of which, improperly streamlined review). If the IJ’s if selected as the reason for affirmance by decision is incorrect, the Court of Appeals the BIA, would have denied an alien’s can simply reach the merits of that asylum application as untimely and would decision and reverse.

22 have prevented the Court of Appeals from having provided its Chevron deference- exercising jurisdiction. Zhu v. Ashcroft, entitled “concrete meaning” to an ___ F.3d ___, ___, 2004 WL 1854553, *5- ambiguous statute.12 The present case *6 (5th Cir. Aug. 19, 2004). The Court demonstrates that arbitrary and capricious determined that the BIA’s use of the application of the streamlining regulations affirmance without opinion procedure can result in building case law that is under such circumstances created a fashioned without the benefit of agency “jurisdictional conundrum” in that it expertise. prevented the Court from “knowing whether the BIA affirmed the IJ’s decision Here, Smriko presented a plausible on a non-reviewable basis, e.g., reading of the INA to the Board, raising a untimeliness, or a reviewable basis, e.g., substantial and important issue of refugee the merits of Zhu’s asylum claim.” Id. law. Despite the absence of precedent The Court remanded so that the BIA could “squarely controlling” Smriko’s argument, indicate whether relief was denied based Smriko’s case was erroneously affirmed upon untimeliness (which would destroy without opinion. That error then prevented the court’s jurisdiction under an applicable the Board from offering its expert opinion statute) or on the merits of the asylum on the novel statutory construction issue application (which would allow the court now before us. Rather than usurping the to exercise jurisdiction and reach the role of the BIA and establishing a merits of the alien’s claim). precedent that the Board’s expertise might counsel against, we now grant the petition Where, as here, an important for review in light of the streamlining portion of the statutory scheme can be read error. The Board’s decision will be to produce materially different results, vacated, and, given the “need to establish proper application of the streamlining regulations is essential. We are required to “accord[] Chevron deference [to the 12 One might argue, we suppose, that the BIA] as it gives ambiguous statutory terms individual Board member’s decision to ‘concrete meaning through a process of issue an affirmance without opinion was case-by-case adjudicatio n.’” an “implicit” rejection of Smriko’s Aguirre-Aguirre, 526 U.S. at 425 (quoting proposed statutory construction in favor of Cardoza-Fonseca, 480 U.S. at 448-49). If, another construction. However, the Board as happened here, an individual Board member’s decision to issue an affirmance member arbitrarily and capriciously without opinion, in and of itself, is not a streamlines a case where no Board or substitute for the kind of analysis of the binding precedent accepts or rejects an relevant statutes, regulations, or legislative alien’s plausible interpretation of an history, that would be required in order to ambiguous statute, we are then left to afford Chevron deference. See Berishaj, interpret the statute without the BIA 378 F.3d at 327.

23 a precedent construing the meaning of,” 8 C.F.R. § 1003.1(e)(6)(ii), the INA in this context, we will remand the matter for further proceedings before a three member panel of the Board.

SMRIKO V. ASHCROFT - NO. 03-1085

LAY, Circuit Judge, concurring. I fully concur in Judge Stapleton’s well-reasoned opinion. I write separately to point out that I have participated in two Eighth Circuit cases, i.e., Wolde v. Ashcroft, 2004 WL 1759141 (8th Cir. 2004) (non-published), and Loulou v. Ashcroft, 354 F.3d 706 (8th Cir. 2003), which follow the Eighth Circuit’s opinion of Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004). In Ngure, the Eighth Circuit has stated that the Board of Immigration Appeals’ decision to issue an affirmance without opinion was not subject to judicial review. I believe that the analysis by Judge Stapleton in the instant case is the correct analysis and I write solely to explain my reason for joining his opinion rather than adhering to the opinion in Ngure.