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


2-19-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3498




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-3498


                             AUREL SILVIU CINDULET,
                                               Petitioner

                                           v.

      JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
                                                       Respondent


                     On Petition for Review of a Final Order of the
                            Board of Immigration Appeals
                                (BIA No. A29-606-491)




                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 October 27, 2003

       Before: SCIRICA, Chief Judge, NYGAARD and AMBRO Circuit Judges

                               (Filed February 19, 2004)


                              OPINION OF THE COURT




SCIRICA, Chief Judge.

      At issue in this appeal is (1) whether the Board of Immigration Appeals erred by

refusing to provide de novo review by a three-judge panel over an Immigration Court’s
decision denying petitioner’s application for relief on asylum and withholding of removal

claims; (2) whether the BIA is required to explain why three-judge review is unwarranted

in petitioner’s case; and (3) whether the Immigration Judge violated petitioner’s due

process rights. Some of these issues were recently addressed by our Court in Dia v.

Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc). As we find no error, we will affirm the

judgment of the BIA.

                                             I

       Petitioner Aurel Silviu Cindulet is a native and a citizen of Romania who was

admitted to the United States on or about March 18, 1991, as a non-immigration visitor

for pleasure with authority to remain in the United States for a temporary period until

September 17, 1991. Cindulet remained in the United States beyond that date without

authorization.

       On April, 7, 1998, the Immigration and Naturalization Service1 executed a Notice

to Appear charging Cindulet with being removable as an alien who remained in the

United States for longer than permitted by § 237 of the Immigration and Nationality Act,

8 U.S.C. § 1227(a)(1)(B). On February 17, 1999, the Immigration Judge denied

Cindulet’s application for asylum and withholding of removal but granted his voluntary

request for departure to leave the United States. Cindulet appealed to the BIA, and on


   1
    Under the Homeland Security Act of 2002, Pub. L. No. 107-296, § 451, 116 Stat.
2135, 2195, the functions of the INS were transferred from the Department of Justice to
the United States Department of Homeland Security effective March 1, 2003.

                                             2
June 18, 2002, it summarily affirmed the Immigration Judge’s decision without opinion.

Cindulet did not file an appeal of this order.

       On July 15, 2002, Cindulet filed a motion to reconsider asserting, inter alia, that

the BIA improperly summarily affirmed his case and requested that a “three judge panel”

reconsider the matter. Cindulet also detailed various due process violations by the

Immigration Judge that impaired the fairness of the hearing. On August 21, 2002, the

BIA denied Cindulet’s motion to reconsider for a “failure to meet essential statutory or

regulatory requirements” because Cindulet failed to present: (1) any evidence that it

overlooked any aspect of the case, (2) any additional arguments that could not have been

made during its previous review, or (3) any relevant change in the law. Cindulet appeals

the BIA’s order. 2

                                                 II

       Cindulet asserts his claims require de novo review before a three-judge panel and

alleges the BIA’s denial of the motion requesting de novo review improperly failed to

identify the specific reasons why this case did not require three-judge review. We hold




   2
     The BIA’s jurisdiction arose under 8 C.F.R. § 1003.2(a) (2002), which grants the BIA
authority to reconsider or reopen any case in which it had previously rendered a decision.
We have jurisdiction to review the BIA’s decision in a removal case based on § 242 of
the Immigration and Nationality Act, 8 U.S.C. § 1252. This section confers jurisdiction
to review final orders of removal, including denials of motions to reconsider. Id. Venue
is proper in this court. See id. (stating that a petition must be filed in the court of appeals
for the judicial circuit in which the proceedings before the immigration judge were
completed).

                                                 3
that the BIA acted in accordance with the valid streamlining provisions and made no error

in denying the motion to reconsider.3

       In Dia, 353 F.3d 228, we addressed the validity of the streamlining provisions that

Cindulet challenges. We held that “the streamlining provisions and the BIA’s issuance of

an [affirmance without opinion] . . . did not violate either the INA or the Constitution.”

Id. at 245. We noted that “[n]either the Constitution nor Congress guarantee a de novo

review by the BIA, nor do they guarantee a right to a fully reasoned opinion by the BIA.”

Id. at 243 (citation omitted). We further held: “[T]he fact that the review is done by one

member of the BIA and that the decision is not accompanied by a fully reasoned BIA

decision may be less desirable from the petitioner’s point of view, but it does not make

the process constitutionally ‘unfair.’” Id. at 243-44. Accordingly, the streamlining

provisions are valid.

       Under the streamlining provisions, a single board member to whom the case is

assigned may affirm an immigration judge’s decision without an opinion if the member

determines that the result was correct and that “(A) the issue on appeal is squarely

controlled by existing Board or federal court precedent and does not involve the

application of precedent to a novel fact situation; or (B) the factual and legal questions


   3
    We review a BIA decision denying a motion to reconsider for abuse of discretion.
See INS v. Doherty, 502 U.S. 314, 323 (1992) (stating that the denial of a motion to
reopen is reviewed for abuse of discretion regardless of the underlying basis of the alien’s
request for relief); Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986) (reviewing the
BIA’s denial of a motion to reconsider for abuse of discretion.).

                                              4
raised on appeal are so insubstantial that three Member review is not warranted.” 8

C.F.R. § 1003.1(a)(7). If those conditions are met, the regulation provides that the BIA

must issue an order that reads: “‘The Board affirms, without opinion, the result of the

decision below. The decision below is, therefore, the final agency determination.’” Id.

The order “shall not include further explanation or reasoning.” Id.

       Here, in its June 18, 2002 Order, the BIA followed the precise dictates of the

streamlining provisions, and that is all that is required. In its August 21, 2002 Order, the

BIA made no error in denying the motion to reconsider. Under 8 C.F.R. § 1003.2(b)(3),

“[a] motion to reconsider based solely on an argument that the case should not have been

affirmed without opinion by a single Board Member, or by a three-Member panel, is

barred.” Id. Accordingly, the BIA properly dismissed Cindulet’s motion to reconsider

because it “fail[ed] to meet essential statutory or regulatory requirements or is expressly

excluded by statute or regulation.” 8 C.F.R. § 1003.1(d)(2)(i)(H).

                                             III

       Cindulet alleges certain due process violations occurred at his immigration

hearing. Particularly, he alleges the Immigration Judge restricted testimony and argument

to his detriment. 4 Assuming these claims were properly raised,5 they are without merit.


   4
    Where the BIA adopts the opinion of the Immigration Judge as its own, we review the
decision of the Immigration Judge as the final decision of the agency. See Gao v.
Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We review de novo whether Cindulet’s due
process rights have been violated. See Chong v. INS, 264 F.3d 378, 386 (3d Cir. 2001).
                                                                            (continued...)

                                              5
Due process requires that a petitioner: “(1) be entitled to factfinding based on a record

produced before the Board and disclosed to her; (2) be allowed to make arguments on her

own behalf; and (3) have the right to an individualized determination of her interests.”

Chong, 264 F.3d at 386. The record demonstrates that Cindulet received due process.

We find no error in the Immigration Judge’s administration of the hearing, and his

findings are supported by substantial evidence.

                                             IV

       For the foregoing reasons, we will affirm the BIA’s denial of the motion to

reconsider.




   4
   (...continued)
We will uphold findings of fact to the extent they are “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.”
Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998).
   5
    Respondent contends Cindulet failed to appeal the BIA’s June 18, 2002 Order, and
accordingly, we should not address the due process claims. Regardless, these claims fail
on the merits.

                                              6
