                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0129n.06
                           Filed: February 16, 2006

                                          No. 04-4163


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

ABOUBACAR CAMARA,

       Petitioner,

v.                                                   ON APPEAL FROM THE BOARD OF
                                                     IMMIGRATION APPEALS
ALBERTO GONZALES,                United    States
Attorney General,

       Respondent.

                                              /



BEFORE:        RYAN, CLAY, and GILMAN, Circuit Judges.

       CLAY, Circuit Judge. Petitioner, Aboubacar Camara, appeals an August 26, 2004 order

of the Board of Immigration Appeals (“BIA”) denying Petitioner’s motion for reconsideration.

Petitioner moved for reconsideration after the BIA rejected his claims for asylum and withholding

of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and

withholding of removal under the Convention Against Torture (“CAT”), 18 U.S.C. § 2340 et seq.

Petitioner argues that this Court should grant his petition for review of the BIA’s August 26, 2004

order because it was improper and denied Petitioner due process of law. For the reasons set forth

below, we DENY the petition for review.
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                                              I.
                                         BACKGROUND

A.     Procedural History

       On December 3, 1999 the Immigration and Nationality Service (“INS”) commenced removal

proceedings against Petitioner by issuing a notice to appear. Thereafter, Petitioner conceded

removability and requested asylum and withholding of removal under the INA and withholding of

removal under CAT. On April 2, 2003, after an evidentiary hearing, an Immigration Judge (“IJ”)

rendered an oral decision denying Petitioner’s requested relief. Petitioner appealed the IJ’s decision

to the BIA. On June 30, 2004, a single BIA member issued a summary affirmation of the IJ’s

decision without opinion, pursuant to 8 C.F.R. 1003.1(e)(4). Shortly thereafter, Petitioner timely

moved the BIA to reconsider its affirmation of the IJ’s decision. On August 26, 2004, the BIA

denied Petitioner’s motion for reconsideration. Petitioner timely filed a petition for review of the

motion for reconsideration with this Court.

B.     Substantive Facts

       Petitioner is a native and citizen of Guinea. He entered the United States on December 7,

1997 with legal authorization to remain in the United States until June 6, 1998. Petitioner remained

in the United States beyond the authorized period. Petitioner alleges that he remained in the United

States because he faces a well-founded fear of persecution on the basis of his political opinion if

returned to Guinea.

       Petitioner testified at his merits hearing that he was a member of the Guinean People’s

Gathering Party (“RPG”), and additionally, that he is related to Mr. Conde, the head of the RPG.

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According to Petitioner, the RPG opposes Guinea’s government. Petitioner alleges that he was

beaten on several occasions for his membership in the RPG.

       The IJ denied Petitioner’s request for asylum and withholding of removal on the ground that

Petitioner’s request was untimely, and that Petitioner had failed to establish that he had a well-

founded fear of persecution. The IJ held that Petitioner had failed to establish a well-founded fear

of future persecution because: (1)Petitioner’s testimony was not credible; (2) even if Petitioner’s

testimony was credible it did not establish a well-founded fear of future persecution because

Petitioner’s treatment did not rise to the level of persecution; and (3) country conditions had changed

since Petitioner was ill-treated by the Guineese government. The BIA affirmed the IJ’s decision,

and thereafter, denied Petitioner’s request to reconsider its affirmation. Petitioner now appeals the

BIA’s denial of his motion to reconsider. He argues that the BIA’s denial of his motion to

reconsider was improper because: (1) his asylum application should have been granted on the merits;

and (2) the BIA’s use of summary procedures violated his due process rights.

                                               II.
                                           DISCUSSION

A.     This Court Does Not Have Jurisdiction to Review The BIA’s Order Affirming The IJ’s
       Denial of Petitioner’s Application for Asylum and Withholding of Removal

       This Court does not have jurisdiction to review the BIA’s June 30, 2004 denial of

Petitioner’s requests for asylum and withholding of removal. In order for this court to have

jurisdiction to review an order of the BIA, a petitioner must file a notice of appeal with this Court

within 30 days of the BIA’s issuance of the decision. 8 U.S.C. § 1252(a)(5), (b)(1); Stone v. INS,

514 U.S. 386, 393-94 (1995); Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003) (applying Stone to



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INA after 1996 amendments to the INA); Kellici v. Aschcroft, 101 F. App’x 615, 616 (6th Cir. 2004)

(unpublished) (same). To date, Petitioner has not filed a notice of appeal of the BIA’s June 30, 2004

decision denying Petitioner’s requests for asylum and withholding of removal. Instead, Petitioner

moved the BIA to reconsider the June 30, 2004 decision and then appealed the denial of the motion

to reconsider. An appeal of a motion to reconsider, however, is not a substitute for an appeal of the

original decision and does not give this Court jurisdiction to review the denial of the original

decision. 8 U.S.C. § 1252(a)(5), (b)(1); Stone, 514 U.S. at 393-94; Zhang, 348 F.3d at 292 n.2;

Kellici, 101 F. App’x at 616. Therefore, we do not have jurisdiction to review the merits of

Petitioner’s requests for asylum and withholding of removal.

B.     The BIA’s Denial of Petitioner’s Motion for Reconsideration Did Not Deny Petitioner
       Due Process of Law1

       Petitioner contends that the BIA’s streamlining procedures violate the Due Process Clause.

The BIA’s streamlining procedures allow a single member of the BIA to review an IJ’s decision and

to affirm the decision without opinion. Petitioner challenges three aspects of the procedures: (1) the

ability of a single member of the BIA, as opposed to a three member panel, to issue a decision on

behalf of the BIA; (2) the ability of the BIA to affirm an IJ’s decision without an opinion; and (3)

the standard of review used by the BIA when reviewing appeals under the procedures. For the

reasons discussed below, this Court has jurisdiction to address only the first of Petitioner’s



       1
         Petitioner’s statement of issues also indicates that Petitioner is making an Equal Protection
challenge. Petitioner, however, has failed to preserve any equal protection argument for this Court’s
review because the argument section of Petitioner’s brief does not once mention the Equal
Protection Clause. United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999) (holding that issues
not fully developed or argued on appeal are waived for appellate review).

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challenges to streamlining procedures, the ability of a single member of the BIA to issue a decision

on behalf of the BIA. Because we find that decisions issued by a single BIA member do not violate

due process, we deny the petition for review.

       1.      Jurisdiction

       This Court has jurisdiction to address the constitutionality of the streamlining procedures

only as those procedures apply to Petitioner’s motion for reconsideration, and not as the streamlining

procedures apply to the denial of Petitioner’s appeal of the IJ’s decision because, as discussed in the

previous section, the only appeal properly before this Court is the BIA’s denial of Petitioner’s

motion for reconsideration. Although Petitioner challenges three aspects of the streamlining

procedures, only one of these aspects is relevant to the denial of Petitioner’s motion for

reconsideration, the ability of a single member of the BIA to issue a decision on behalf of the BIA.

Petitioner cannot challenge the Board’s summary affirmation procedures or the standard of review

applied to IJ decisions because the Board’s denial of Petitioner’s motion for reconsideration did not

employ summary affirmation or any standard of review. These challenges are relevant only to the

BIA’s denial of Petitioner’s requests for asylum and withholding of removal, which are not properly

before this Court. Therefore, we address only the issue of whether the issuance of an opinion by a

single BIA member violates Petitioner’s constitutional rights.2

       2.      Analysis

               a.      Procedural Due Process



       2
       In any case, this Court has already rejected the argument that these summary affirmation
procedures violate due process, Denko v. INS, 351 F.3d 717, 730 (6th Cir. 2003).

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                                             No. 04-4163

        The issuance of a decision by a single member of the BIA on behalf of the entire BIA does

not violate Petitioner’s procedural due process rights. See generally Denko, 351 F.3d at 729 (“the

BIA’s streamlining procedures do not themselves alone violate an alien’s right to due process”).

The Due Process Clause of the Fifth Amendment protects aliens physically present in the United

States as well as citizens. Landon v. Plasencia, 459 U.S. 21, 32-33 (1982); Mathews v. Diaz, 426

U.S. 67, 77 (1976). Procedural due process rights attach whenever a petitioner asserts a protected

liberty or property interest. See Bangura v. Hansen, – F.3d – , 2006 WL 11939, at * 5 (6th Cir.

2006); see also Almario v. INS, 872 F.2d 147, 151 (6th Cir. 1989). To establish a protected liberty

or property interest, the petitioner must demonstrate that the Constitution or a federal or state statute

grants him a protected right. See Bangura, 2006 WL 11939 at *5; see also Almario, 872 F.2d at

151. Once a petitioner establishes that he or she has a protected property interest, courts apply the

balancing test from Matthews v. Eldridge, 424 U.S. 319 (1976), to determine if the petitioner

received adequate process. Denko, 351 F.3d at 730 n. 10. Under Matthews, courts consider: (1) the

private interests affected by the official action; (2) the government’s interest, including fiscal and

administrative burdens, in granting additional process; (3) the risk of erroneous deprivation under

current procedures; and (4) the additional value of any new procedures. Id

        In this case, Petitioner fails to establish a procedural due process violation because Petitioner

cannot show that requiring a three-member panel to hear his motion for reconsideration would

decrease the risk of improper removal. Denko, 351 F.3d at 730 n. 10. Although Petitioner does

have a protected interest in remaining in the United States, Reno v. Flores, 507 U.S. 292, 306

(1993), Petitioner’s right to appeal his order of removal to a panel of this Court provides sufficient



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protection from improper removal. Denko, 351 F.3d at 730 n. 10. Therefore, we find that

Petitioner’s procedural due process claim is meritless and does not provide this Court with grounds

to grant a petition for review.

                b.      Substantive Due Process

        In addition to arguing that the summary affirmation procedures violate procedural due

process, Petitioner seems to be arguing that the streamlining procedures violate his substantive due

process rights in that the procedures deprive him of the fundamental right to take an interagency

appeal. There is no fundamental right, however, to interagency appeals. As the Petitioner correctly

notes, rights that are “deeply rooted in this Nation’s history and tradition, and implicit in the concept

of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed,” are

fundamental. Hamby v. Neel, 368 F.3d 549, 566 (6th Cir. 2004). The right to interagency appeals

simply is not such a right. See Denko, 351 F.3d 729 (citing cases from other circuits that hold there

is no constitutional right to appeal to the BIA). Therefore, Petitioner fails to establish a substantive

due process claim.

                c.      Policy Arguments

         Petitioner spends most of his brief making policy arguments against the streamlining

procedures and predicting the demise of our federal system of government. For instance, Petitioner

describes the streamlining procedures as “Orwell’s horrific vision of the future being implemented

before our very eyes.” (Final Br. of Pet’r 19.) Petitioner further predicts that the streamlining

procedures will eventually lead to the complete erosion of all judicial review. This Court, however,

does not have the authority to overturn federal regulations based on policy arguments, nor do the



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writings of George Orwell or any other fiction writer provide this Court with any legal authority.



C.     Petitioner Has Waived The Argument That The BIA Abused Its Discretion in Denying
       His Motion to Reconsider

       Petitioner has waived any argument that the BIA abused its discretion in denying his motion

to reconsider. Issues that are not fully developed and argued on appeal or that are argued in a

perfunctory manner are waived for appellate review. United States v. Layne, 192 F.3d 556, 566 (6th

Cir. 1999). Petitioner’s brief presents a ten page policy argument on why this Court should “strike

down” the regulation streamlining BIA review of IJ decisions, another several pages on a substantive

due process, and finally addresses the merits of the BIA’s June 20, 2004 denial of Petitioner’s

requests for asylum and withholding. It presents no legal or factual argument that the BIA abused

its discretion when it denied Petitioner’s motion for reconsideration in the August 26, 2004 order.

Therefore, this Court will not address Petitioner’s claim.

                                             III.
                                         CONCLUSION

       For the foregoing reasons, we DENY the petition for review.




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