9th Circuit Rules BIA "Streamlining" Procedures Constitutional

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

9TH CIRCUIT RULES BIA "STREAMLINING" PROCEDURES CONSTITUTIONAL
Immigrants' Rights Update, Vol.17, No. 5, September 4, 2003

The U.S. Court of Appeals for the Ninth Circuit has upheld the constitutionality of the "streamlining" procedures of the Board of Immigration Appeals. Under this procedure, appeals from immigration judge decisions may be reviewed by a single BIA member and "affirmed without opinion" even where the BIA member does not agree with the IJ decision but believes that any error was without prejudice. The decision also finds that the appellate court does not have jurisdiction to review whether the "affirmance without opinion" procedure was properly applied, in cases where the ruling concerns a discretionary determination that itself would not be subject to appellate court jurisdiction.

In 1999 the Executive Office for Immigration Review promulgated regulations that allowed review of IJ decisions by a single BIA member rather than by a three-member panel in cases that met certain criteria. The regulation allowed the BIA to designate certain categories of cases as subject to streamlining, and in successive directives the BIA chair designated several categories of cases for streamlining. In 2002 the attorney general promulgated regulations that vastly expanded the streamlining program, making single-BIA member review the norm rather than the exception (see "Attorney General Issues Final Rule to Reform BIA," IMMIGRANTS' RIGHTS UPDATE, Sept. 10, 2002, p. 1).

The respondents in this case, the Carriches, are Mexican nationals who at their removal hearing applied for cancellation of removal for non-lawful permanent residents under section 240A(b) of the Immigration and Nationality Act. The IJ denied their application, finding that they had failed to meet the "exceptional and extremely unusual hardship" requirement for cancellation. The Carriches appealed, but the appeal was reviewed by a single BIA member under the 1999 regulations, and the IJ opinion was affirmed in a form order with no BIA opinion. The Carriches then petitioned for review of this ruling by the court of appeals.

On appeal, the Carriches contended that the streamlining procedures violate due process. They also contended that streamlining in their case was improper under the regulations because the determination of whether an applicant has met the hardship standard for cancellation is inherently an individual, factual determination. 8 CFR sec. 3.1(a)(7)(ii)(A) provides that a case may be streamlined only if it "does not involve the application of precedent to a novel fact situation."

The court rejected both the due process and regulatory challenges to streamlining. The court concluded that the "practical effect" of streamlining is that "the IJ's decision becomes the BIA decision." The court recognized that under the streamlining regulations a single BIA member can affirm an IJ decision without issuing an opinion based on different reasons than those set forth in the decision. However, the court considered that while such an action poses a "risk" to the BIA of being reversed by the court of appeal, the fact that the court can review the decision minimizes the likelihood that streamlining will result in denials of due process. Thus, "it is the BIA, not the alien petitioner, that is saddled with any errors the IJ makes and with the risk of reversal on grounds that do not reflect the BIA's actual reasons."

The court also reasoned that, while the facts of each case may be different, "not every case presents a factual situation that requires the BIA to establish and reassess the boundaries of the 'exceptional and extremely unusual hardship' standard." The court concluded that "it is neither arbitrary nor a violation of due process for the BIA to decide that a particular case clearly falls within, or outside, those boundaries.

A majority of the three-member appellate panel also concluded that the court does not have jurisdiction to determine whether streamlining was appropriate under the regulations, in cases where the appeal concerns only discretionary determinations. The Ninth Circuit has found that section 242(a)(2)(B) of the INA eliminates jurisdiction for the court of appeals to review the BIA's discretionary determination of whether an applicant for cancellation has met the hardship standard. Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003) (for a discussion of Romero-Torres, see "9th Circuit Finds No Jurisdiction to Review BIA's Determination That Cancellation Hardship Requirement Not Met," IRU, June 3, 2003, p. 8). The court concluded that this bar to jurisdiction also applies to reviewing whether streamlining was appropriate in cases concerning only discretionary determinations. The court reasoned that to determine whether streamlining was appropriate in this case, it "would necessarily be engaged in a merits analysis of the hardship claim," and that would conflict with the jurisdictional bar.

Judge Thomas G. Nelson filed a partial dissent, contending that the determination whether the streamlining regulation was properly applied does not involve discretionary determinations and is properly within the court's jurisdiction. He agreed with the majority's conclusion that the streamlining procedure does not violate due process. A petition for rehearing is pending.

Falcon Carriche v. Ashcroft, No. 02-71143
(9th Cir. July 14, 2003).