1st Circuit Overturns BIA "Affirmance Without Opinion"

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

1st Circuit overturns BIA "affirmance without opinion"
Immigrants' Rights Update, Vol. 17, No. 8, December 18, 2003

The U.S. Court of Appeals for the First Circuit has issued a decision on a petition for review, reversing and remanding the case to the Board of Immigration Appeals, where a BIA member had used the "affirmance without opinion" (AWO) procedure to uphold a decision of an immigration judge. In so ruling, the court found that it has jurisdiction to review the BIA's decision to use the AWO procedure and that remand was necessary because whether the BIA was justified in using the procedure could not be determined without an explanation by the BIA. Under the AWO procedure, appeals from IJ 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.

In this case, the respondent, Lahouari Haoud, is an Algerian national who entered the U.S. on a six-month nonimmigrant visa in 1995 and then overstayed. In Dec. 1999, agents of the Federal Bureau of Investigation and local police came to his home in Boston and arrested him for carrying a fraudulent green card, and also questioned him about terrorist activities. Criminal charges were not filed against him, but his arrest was publicized in numerous newspaper and television reports, connecting him with a general fear of terrorist actions on the eve of the new millennium.

The Immigration and Naturalization Service proceeded with removal charges against Haoud based on his possession of a fraudulent green card and his having overstayed his visa. At his removal hearing, Haoud applied for asylum, claiming that the publicity regarding his arrest associated him with an Algerian terrorist group and would lead to his persecution were he to be returned to Algeria. He also applied for withholding of removal, relief under the Convention Against Torture, and voluntary departure. The immigration judge denied the asylum application on the grounds that Haoud had failed to establish changed circumstances to excuse his filing the application more than one year after his last entry into the United States. The IJ also found on the merits of the claim that Haoud had failed to establish either past persecution or a well-founded fear of persecution, and that he could not make this showing based solely on media publicity in the U.S. The IJ also denied the other applications for relief, and Haoud appealed to the BIA.

In support of his appeal, Haoud raised another case decided after his hearing, In re Touarsi, in which the BIA granted asylum to another Algerian man who had been arrested in Boston on the same night as Haoud and on the same suspicion of terrorism. In that case, the BIA reversed the IJ's denial of asylum, finding that the respondent, Touarsi, had a well-founded fear of persecution in Algeria based on imputed political opinion, relying on the media publicity in the U.S.

In Hoaud's case, the BIA used the AWO procedure to uphold the IJ's decision and dismiss the appeal. Houad then filed a petition for review with the court of appeals, seeking review of the denial of asylum.

On appeal, the government contended that the court lacked jurisdiction to review the denial of asylum, because of section 208(a)(3) of the Immigration and Nationality Act. It provides that "No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)," which includes the determination that an asylum application is barred by the one-year deadline.

The court agreed that it would not have jurisdiction to review an asylum denial based on the one-year deadline. However, the court also found that this conclusion does not resolve the case, because under the AWO procedure the BIA could have disagreed with the IJ's finding regarding the one-year deadline and still upheld the IJ decision regarding the merits of the asylum claim. In that case, the court would have jurisdiction to review the asylum claim on the merits. The court also rejected the government's claim that the BIA's decision to use the AWO procedure is an unreviewable discretionary determination. The court found that "the Board's own regulation provides more than enough 'law' by which a court could review the Board's decision to streamline." The court noted that under the regulation, "the Board cannot affirm an IJ's decision without opinion if the decision is incorrect, errors in the decision are not harmless or immaterial, the issues on appeal are not squarely controlled by Board or federal court precedent and involve the application of precedent to a novel factual situation, or the issues raised on appeal are so substantial that a full written opinion is necessary."

In this case, the court found that the lack of explanation for the decision by the BIA prevented it from determining whether streamlining under the regulation was appropriate. There is no way to determine whether the BIA's decision denying asylum was based on the one-year deadline or on the merits of the asylum claim. Moreover, the BIA failed to explain or reconcile its decision with its prior decision in Touarsi, which appears to be in direct conflict with this decision. The court therefore remanded the case to the BIA to provide "a reasoned administrative decision."

Haoud v. Ashcroft, __ F.3d __, No. 02-2395 (1st Cir. Nov. 25, 2003).