                           In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 04-2959
MARIA DOLORES CUELLAR LOPEZ,
                                                     Petitioner,

                              v.


ALBERTO R. GONZALES, Attorney General of the United
States,
                                        Respondent.
                  ____________
               On Petition for Review of an Order
              of the Board of Immigration Appeals.
                        No. A78-125-697
                       ____________
    ARGUED APRIL 8, 2005—DECIDED OCTOBER 26, 2005
                      ____________



  Before FLAUM, BAUER, and WOOD, Circuit Judges.
   WOOD, Circuit Judge. After living in the United States
continuously since 1982, Maria Dolores Cuellar Lopez
(Cuellar) left the country with her youngest child, leaving
her three other children in a friend’s care, so that she could
visit Mexico to find the father of her youngest child. She
found him and discovered that he had another family living
in Mexico. After staying in Mexico for about ten days, she
flew back to the United States. At the Houston airport,
immigration officials stopped her and she presented a false
U.S. birth certificate to document her immigration status.
2                                                No. 04-2959

The officials spotted the fraud, but they allowed her into the
country under humanitarian parole because of her three
minor children. At the same time, they issued her a Notice
to Appear for removal proceedings.
  Cuellar conceded removability and applied for cancella-
tion of removal under INA § 240A(b), 8 U.S.C. § 1229b(b).
After a hearing, the Immigration Judge (IJ) denied her
application on two grounds. First, he found that she was
unable to meet the statutory requirement of being “physi-
cally present” in the U.S. for ten years because of her
attempted unlawful entry. Second, he found that she lacked
“good moral character” because of her unlawful reentry, and
thus she was statutorily barred from cancellation of
removal under INA § 101(f)(3), 8 U.S.C. § 1101(f)(3).
Alternatively, even if not statutorily barred, the IJ found
that as a matter of discretion her application should be
denied for lack of good moral character. The Board of
Immigration Appeals (BIA) affirmed the IJ’s decision
without an opinion. See 8 C.F.R. § 1003.1(e)(4).
  Unfortunately, because the BIA streamlined this case, we
do not know on what grounds it affirmed the IJ’s decision,
which turns out to be critical to determining whether we
have jurisdiction to decide this appeal. We have held that
an IJ’s interpretation of the term “ ‘continuous physical
presence’ raises a non-discretionary question of statutory
interpretation. As such, it falls outside § 1252(a)(2)(B)’s
jurisdiction stripping rule.” Morales-Morales v. Ashcroft,
384 F.3d 418, 423 (7th Cir. 2004). Both parties concede,
however, that the IJ’s determination that Cuellar lacks
good moral character is a discretionary decision
and therefore it is beyond our review. See 8 U.S.C.
§ 1252(a)(2)(B)(i) (“[N]o court shall have jurisdiction to
review . . . any judgment regarding the granting of relief
under section . . . 1229b [cancellation of removal].”). If the
BIA saw no flaw in the IJ’s discretionary ruling, then
Cuellar has no further recourse in this court. If, however, it
No. 04-2959                                                    3

thought that the result reached by the IJ was correct
because Cuellar was statutorily barred from cancellation as
a result of the continuous physical presence finding and
believed it unnecessary to reach the question whether the
IJ had abused his discretion in finding lack of good moral
character, we have jurisdiction to review the interpretive
question. Under the circumstances, we have concluded that
we must remand this case to the BIA, so that it may
indicate the basis for its conclusion.


                              I
  On May 8, 2002, Cuellar appeared for her removal
hearing before the IJ. After the hearing, the IJ issued an
oral opinion ordering removal and denying cancellation of
removal, finding that she had not satisfied the first two
requirements for cancellation of removal under INA
§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1), which requires that the
petitioner:
    (A) has been physically present in the United States for
    a continuous period of not less than 10 years immedi-
    ately preceding the date of such application;
    (B) has been a person of good moral character during
    such period;
    (C) has not been convicted of [certain enumerated
    offenses; and]
    (D) establishes that removal would result in excep-
    tional and extremely unusual hardship to the alien’s
    spouse, parent, or child, who is a citizen of the United
    States or an alien lawfully admitted for permanent
    residence.
First, the IJ found that Cuellar’s attempted unlawful entry
after her 10-day visit in Mexico ending January 5, 2000,
constituted a break in the 10-year period of physical
4                                                No. 04-2959

presence required by § 1229b(b)(1)(A). The IJ considered the
statutory rules governing certain breaks in physical
presence, which specify that:
    [a]n alien shall be considered to have failed to maintain
    continuous physical presence in the United States
    under subsections (b)(1) and (b)(2) of this section if the
    alien has departed from the United States for any
    period in excess of 90 days or for any periods in the
    aggregate exceeding 180 days.
8 U.S.C. § 1229b(d)(2); INA § 240A(d)(2). Notwithstanding
this 90-day requirement, however, the IJ determined that
Cuellar’s 10-day trip constituted a break in physical
presence. In reaching this conclusion, the IJ relied on the
BIA’s decision in In re Romalez-Alcaide, 23 I & N Dec. 423
(BIA 2000), which found that a voluntary departure under
the threat of deportation or removal proceedings can
constitute a break in the physical presence requirement of
§ 1229b(b), even if the break was less than 90 days. The IJ
found that the BIA’s rationale in Romalez-Alcaide sup-
ported his finding that other breaks that were less than 90
days could also constitute a break in physical presence.
  In addition, the IJ found that Cuellar was ineligible for
cancellation of removal because she fell as a matter of law
under one of the categories in INA § 101(f)(3), 8 U.S.C.
§ 1101(f)(3), which precludes a finding of “good moral
character.” The IJ explained that because she had admitted
to “committing a crime involving moral turpitude by
presenting a false birth certificate” she could have been
prosecuted under 18 U.S.C. § 1015(e), which is a felony
offense. Based on this admission, the IJ found that she was
“an alien, who admit[ed] the[] essential elements of a crime
involving moral turpitude, [and was therefore] inadmissible
under Section 212(a)(2)(A)(i)(I).” Because the IJ determined
that Cuellar could be found inadmissible under § 212(a), he
concluded that § 101(f)(3) statutorily barred him from
finding she was a person of “good moral character.”
No. 04-2959                                                 5

  In the alternative, the IJ found that “[e]ven if the respon-
dent is not statutorily barred from showing good moral
character, I would find that the negative weight attribut-
able to her conduct offsets the other favorable evidence and
establishes that she is not a person of good moral charac-
ter.”
  The BIA summarily affirmed the decision of the IJ on
July 2, 2004, in an order that stated:
    PER CURIAM. The Board affirms, without opinion, the
    results of the decision below. The decision below is,
    therefore, the final agency determination. See 8 C.F.R.
    § 1003.1(e)(4).
Cuellar filed a timely appeal to this court.


                             II
  Before turning to Cuellar’s appeal, we note that Con-
gress’s recent enactment of the REAL ID Act of 2005, Pub.
L. 109-13, 119 Stat. 231, made several changes to the
immigration laws, including some that affect a petitioner’s
burden in asylum cases and the standard of review of
orders of removal. See REAL ID Act, §§ 101(a)(3) and
101(e). The new legislation did not, however, change the
requirements for cancellation of removal found in 8 U.S.C.
§ 1129b, which is the subject of this appeal.
  The first question we must address is whether we have
jurisdiction to review the BIA’s decision denying Cuellar’s
request for cancellation of removal. The government insists
that jurisdiction is lacking because of the bar found in 8
U.S.C. § 1252(a)(2)(B)(i) on review of a discretionary
decision of the Attorney General. If it were clear that this
was the ground on which the BIA relied, we would agree
with that position. As we explained above, however, the
BIA’s decision to affirm summarily leaves us in the dark.
Had the IJ based his decision only on the ground that
6                                               No. 04-2959

Cuellar’s visit to Mexico broke her continuous physical
presence as a matter of law, her appeal could go forward,
because we have jurisdiction to review “whether an alien is
being removed for a permissible reason,” Morales-Morales,
384 F.3d at 422 (quoting Bosede v. Ashcroft, 309 F.3d 441,
445 (7th Cir. 2002)), and a determination about a break in
physical presence is a “non-discretionary question of
statutory interpretation” that falls within our jurisdiction,
id. at 423.
   Our sister circuits have come to different conclusions
about the reviewability of an IJ decision that contains both
a reviewable and nonreviewable basis, which the BIA
affirms without opinion. Before looking at their decisions,
it is worth recalling exactly what the BIA itself says it is
doing in such cases:
    An order affirming without opinion, issued under
    authority of this provision [8 C.F.R. § 1003.1(e)(4)],
    shall not include further explanation or reasoning. Such
    an order approves the result reached in the decision
    below; it does not necessarily imply approval of all of
    the reasoning of that decision, but does signify the
    Board’s conclusion that any errors in the decision of the
    immigration judge or the Service were harmless or
    nonmaterial.
8 C.F.R. § 1003.1(e)(4)(ii). Affirmances under this procedure
thus are not equivalent to any kind of “adoption” of the IJ’s
opinion. They address only the bottom-line result.
  The Ninth, Fifth, and First Circuits have concluded that
the proper disposition when an IJ opinion contains both
reviewable and nonreviewable grounds is to remand to the
BIA so that it may clarify the basis of its holding. See
Lanza v. Ashcroft, 389 F.3d 917, 919-20, 932 (9th Cir. 2004)
(holding that a remand to the BIA is necessary where the
IJ’s decision is founded on a discretionary and
nondiscretionary basis and the BIA affirms without an
No. 04-2959                                                 7

opinion); Zhu v. Ashcroft, 382 F.3d 521, 527 (5th Cir. 2004)
(same); Haoud v. Ashcroft, 350 F.3d 201, 206-08 (1st Cir.
2003) (same). The Tenth Circuit, in contrast, rejects the
“assum[ption] that the decision from which jurisdiction is
determined must be the decision by the highest tribunal in
the hierarchy that considers the matter,” holding instead
that “we look to the IJ’s decision (rather than the BIA’s
unexpressed reasons) . . . when we are determining our
jurisdiction.” Ekasinta v. Gonzales, 415 F.3d 1188, 1193-94
(10th Cir. 2005).
  We agree with the reasoning of the majority position in
this circuit split, which seems to us the best way to apply
the rules that confine our jurisdiction in immigration
matters to particular questions, while still safeguarding due
process. As the Ninth Circuit explained in Lanza:
    We [ ] find that intelligent exercise of our appellate
    jurisdiction requires remand. Because the BIA affirmed
    without opinion, we have no way of knowing whether
    the BIA rejected Lanza’s asylum claim on the basis of
    the IJ’s procedural determination or his alternative
    finding on the merits. Due process requires us to either
    reach the merits or remand for clarification . . . . Given
    our limited jurisdiction and the general presumption
    against federal court review, we remand to the BIA
    with instructions to clarify the grounds for its rejection
    of Lanza’s asylum application.
Lanza, 389 F.3d at 932. Given the “jurisdictional conun-
drum” created by the interplay of the bar to judicial review
contained in § 1252 and the BIA’s streamlining regulations,
the proper solution is to afford the BIA “discretion as an
agency . . . to use its affirmance without opinion procedure”
while leaving us “free to vacate and remand” when we
simply cannot determine the basis on which relief was
denied. Zhu, 382 F.3d at 527.
  We do not find persuasive the Tenth Circuit’s conclusion
that the streamlining regulations do not permit remands for
8                                               No. 04-2959

clarification and that we should look to the IJ’s decision,
rather than the BIA’s order, to determine our jurisdiction.
In Ekasinta, the Tenth Circuit stated that:
    Th[e] [affirmance without opinion] provision plainly
    bars a BIA member who issues an affirmance without
    opinion from explaining the reasons for the affirmance,
    even though they are different from those stated by the
    IJ. Nowhere does the regulation provide for further
    clarification on remand from us; indeed, to order the
    BIA to explain itself, even to the extent of stating
    whether it affirmed on a reviewable, non-discretionary
    or nonreviewable, discretionary ground, would contra-
    dict [the statement in] 8 C.F.R. § 1003.1(e)(4)(ii) [that
    “[a]n order affirming without opinion . . . shall not
    include further explanation or reasoning”].
415 F.3d at 1193. The court then held that the court of
appeals was required to base its jurisdiction on the IJ’s
decision alone, analogizing to the Michigan v. Long, 463
U.S. 1032 (1983), context and the Supreme Court’s practice
of looking to a lower state court’s ruling to determine
whether independent and adequate state law grounds exist
for a decision when a state’s highest court declines to grant
review. Id. at 1194 (citing Illinois v. Rodriguez, 497 U.S.
177, 180-81, 182 (1990)).
  The trouble with the Tenth Circuit’s analysis is that it
fails to read the streamlining regulations of the Board as a
whole. The Board itself sets forth limits on the use of the
authority to affirm without opinion: it may be exercised by
a single member only if he or she concludes that (1) the
result reached was correct, (2) any errors were harmless,
and (3) either the issues are squarely controlled by Board or
court precedent or the factual and legal issues are
too insubstantial to warrant issuance of a written opinion. 8
C.F.R. § 1003.1(e)(4)(i). If the strict criteria of
§ 1003.1(e)(4)(i) are not satisfied, the regulation grants
No. 04-2959                                                 9

authority to a single BIA member to issue an order explain-
ing the Board’s position. See 8 C.F.R. § 1003.1(e)(5) (“If the
Board member to whom an appeal is assigned determines,
upon consideration of the merits, that the decision is not
appropriate for affirmance without opinion, the Board
member shall issue a brief order affirming, modifying, or
remanding the decision under review. . . .”). The regulations
also permit an individual BIA member to reconsider or
reopen a decision she previously adjudicated, or even
reverse a decision if “required by intervening Board or
judicial precedent.” Id. That is precisely the authority that
the Tenth Circuit apparently thought was lacking. On
remand for clarification, § 1003.1(e)(5) gives a single Board
member ample authority to explain the decision that was
reached.
  The Tenth Circuit’s analogy to the Supreme Court’s
certiorari process is also problematic. Unlike certiorari
review, which “is not a matter of right, but of judicial
discretion,” SUP. CT. R. 10, petitioners in immigration
proceedings have a regulatory right to appeal removal
decisions to the BIA. See 8 C.F.R. §§ 1003.1(b)(3), 1003.38,
1240.15. Whether the INA’s statutory scheme would permit
“the Attorney General [to] establish[] an administrative-
appeal scheme that included a certiorari-like process for
denying review by the BIA,” as suggested by the Tenth
Circuit, Ekasinta, 415 F.3d at 1195, is not before us and we
express no opinion on this matter. The fact is that it has not
done so.
  Finally, we do not agree with the Tenth Circuit that “if . .
. our jurisdiction must be determined on the basis of the
BIA’s decision, we could never hear an appeal of a removal
hearing without first remanding to the BIA for an explana-
tion of the affirmance, because the BIA may have rested its
decision on a nonreviewable ground, even though the IJ’s
grounds for denial were reviewable.” Id. As we have
explained previously, if the Attorney General finds it
10                                                No. 04-2959

necessary to engage in “procedural short cut[s],” the BIA
may incur “institutional costs.” Morales-Morales, 384 F.3d
at 423. Sometimes it will be clear that there is no jurisdic-
tion in the court of appeals, where the IJ’s decision rests
entirely on nonreviewable grounds or the single member
adds a statement that the BIA endorses the IJ’s discretion-
ary call. Sometimes it will be equally plain that review is
possible, where the only issues the petitioner is raising are
legal in nature. Only in the set of cases like this one, where
we genuinely cannot tell if the BIA even found it necessary
to reach the IJ’s discretionary ruling, is clarification needed.
A contrary approach would be inconsistent, in our view,
with the “strong presumption in favor of judicial review of
administrative action” generally. INS v. St. Cyr, 533 U.S.
289, 298 (2001).
  In light of our decision to remand this case to the BIA for
clarification, we do not reach the question whether it is
possible for us to review the BIA’s administrative decision
to affirm without opinion. This is another topic of disagree-
ment among the circuits. Some have held that appellate
courts are authorized to review the BIA’s procedural
decision to streamline a case. See, e.g., Smriko v. Ashcroft,
387 F.3d 279, 294 (3d Cir. 2004) (“We hold that the issues
addressed by single BIA members under § 1003.1(e)(4)(i) of
the streamlining regulations are not committed to agency
discretion and that the resolutions of those issues are
judicially reviewable.”); Haoud v. Ashcroft, 350 F.3d 201,
206 (1st Cir. 2003) (holding that “the Board’s own regula-
tion provides more than enough ‘law’ by which a court could
review the Board’s decision to streamline”); Falcon Carriche
v. Ashcroft, 350 F.3d 845, 852-53 (9th Cir. 2003) (rejecting
“the government’s argument that the streamlining decision
is inherently discretionary,” to conclude that streamlining
decisions based on nondiscretionary determinations are
subject to ordinary judicial review), see also Denko v. INS,
351 F.3d 717, 732 (6th Cir. 2003) (assuming without
No. 04-2959                                                11

deciding that judicial review of the BIA’s decision to
streamline is proper). Others disagree. The Eighth and the
Tenth Circuits have found that the decision to streamline
a case is a discretionary decision of the BIA and therefore
nonreviewable. See, e.g., Ngure v. Ashcroft, 367 F.3d 975,
983 (8th Cir. 2004) (holding that “the BIA’s decision
whether to employ the A[ffirmance] W[ithout] O[pinion]
procedure in a particular case is committed to agency
discretion and not subject to judicial review”); but see Begna
v. Ashcroft, 392 F.3d 301, 305 (8th Cir. 2004) (Lay, J.,
concurring) (“Eighth Circuit precedent holding [that judicial
review is unavailable] is ill-reasoned and should be over-
turned.”); Tsegay v. Ashcroft, 386 F.3d 1347, 1355-56 (10th
Cir. 2004) (agreeing with the Eighth Circuit’s decision in
Ngure).
  It would also be premature for us to reach the question
whether the IJ erred in concluding that Cuellar could not
qualify for cancellation of removal under the 90-day and
180-day rules found in § 1229b(d)(2), because of her trip to
Mexico. Should it become relevant, however, that part of the
IJ’s decision must be reviewed in the light of our Morales-
Morales ruling. Like the petitioner in Morales-Morales,
Cuellar did not depart the United States under threat of
removal and therefore Romalez-Alcaide does not directly
apply to her case.


                             III
  We REMAND to the BIA to clarify the grounds for its
decision to affirm the IJ’s decision denying cancellation of
removal to Cuellar.
12                                        No. 04-2959

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-26-05
