           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2    Denko v. INS                               No. 02-3746
        ELECTRONIC CITATION: 2003 FED App. 0432P (6th Cir.)
                    File Name: 03a0432p.06                                DEPARTMENT OF JUSTICE, Washington, D.C., for
                                                                          Respondent. ON BRIEF: David W. Leopold, Cleveland,
UNITED STATES COURT OF APPEALS                                            Ohio, for Petitioner. Greg D. Mack, Emily A. Radford,
                                                                          UNITED STATES DEPARTMENT OF JUSTICE,
                  FOR THE SIXTH CIRCUIT                                   Washington, D.C., for Respondent. Nadine K. Wettstein,
                    _________________                                     AMERICAN IMMIGRATION LAW FOUNDATION,
                                                                          Washington, D.C., for Amicus Curiae.
 SVITLANA DENKO ,              X
                                -                                                             _________________
                         Petitioner,
                                -                                                                 OPINION
                                -  No. 02-3746                                                _________________
          v.                    -
                                 >
                                ,                                            KAREN NELSON MOORE, Circuit Judge. Petitioner
 IMMIGRATION AND                -                                         Svitlana Denko (“Denko”) appeals the decision of the Board
 NATURALIZATION SERVICE,        -                                         of Immigration Appeals (“BIA” or “Board”) to affirm without
                 Respondent. -                                            opinion the Immigration Judge’s (“IJ”) order of removal
                                -                                         against Denko and its decision to deny Denko’s motion to
                               N                                          rescind the in absentia order of removal. Denko makes two
   On Appeal from the Board of Immigration Appeals.                       arguments on appeal. First, Denko argues that it was an abuse
                  No. A76 853 968.                                        of discretion for the IJ not to reopen removal proceedings
                                                                          when Denko introduced evidence that her failure to attend her
                     Argued: July 29, 2003                                second master-calendar hearing resulted from her attorney’s
                                                                          ineffective assistance of counsel and not from any decision on
             Decided and Filed: December 8, 2003                          Denko’s part to abandon her request for asylum. Second,
                                                                          Denko argues that the regulation permitting the Board
   Before: DAUGHTREY and MOORE, Circuit Judges;                           summarily to affirm without opinion the IJ’s decision,
             CALDWELL, District Judge.*                                   8 C.F.R. § 1003.1(a)(7), violates established administrative
                                                                          law because it is inconsistent with other provisions of the
                      _________________                                   Immigration and Nationality Act (“INA”) and violates the
                                                                          Due Process Clause of the United States Constitution because
                            COUNSEL                                       it fails to produce a separate BIA decision for the court of
                                                                          appeals to review. We AFFIRM the judgment of the IJ and
ARGUED:          David W. Leopold, Cleveland, Ohio, for                   uphold 8 C.F.R. § 1003.1(a)(7)’s summary-affirmance-
Petitioner.       Greg D. Mack, UNITED STATES                             without-opinion rule as both constitutional and consistent
                                                                          with administrative-law precedent.

    *
     The Honorable Karen Caldwell, United States District Judge for the
Eastern District of Kentucky, sitting by designation.

                                  1
No. 02-3746                                     Denko v. INS         3    4        Denko v. INS                                     No. 02-3746

                       I. BACKGROUND                                      removable pursuant to the INA. During this hearing, the IJ
                                                                          advised Denko of the consequences of her failure to appear at
   Denko came to this country as a lawful nonimmigrant                    the scheduled second master-calendar hearing set for April 7,
visitor on April 25, 1993, from her native homeland in                    2000. In addition, the order issued on October 29 contained
Ukraine. Her authorization permitted her to stay for no longer            a written warning that Denko must appear on April 7, 2000:
than six months. Denko remained in this country well past
her six-month authorization, and it was not until March 3,                    Failure to appear at your hearing except for exceptional
1998,1 nearly five years after Denko first entered, that she                  circumstances may result in one or more of the following
filed an affirmative request for asylum based on religious                    actions: (1) You may be taken into custody by the
persecution. Denko is Jewish and claims that, while living in                 Immigration and Naturalization Service and held for
Ukraine, she was persecuted by local Ukrainian nationalists.                  further action[,] OR (2) Your hearing may be held in
Denko states that she attempted to secure protection from                     your absence under section 240(b)(5) of the Immigration
local government agencies in Ukraine but that none would                      and Nationality Act. An order of removal will be entered
assist her. She cites as specific examples of persecution, the                against you if the Immigration and Naturalization Service
following: large fines were fraudulently imposed on her                       established by clear, unequivocal and convincing
business by anti-Semitic local officials, she was harassed and                evidence that a) you or your attorney has been provided
received threats of violence from local police, and she was                   this notice and b) you are removable.
victimized and beaten by members of the Ukrainian Self
Defense, a military unit of the Ukrainian National Army.                  Joint Appendix (“J.A.”) at 32 (Not. of Hr’g in Removal
                                                                          Proceedings). Another reminder came almost four months
  After Denko’s request for asylum, the INS served Denko on               before the second master-calendar hearing, when Denko
January 27, 1999, with a notice to appear (“NTA”) to show                 received a letter from Wojnar stating:
cause as to why she did not leave the United States on or
before her six-month permission expired. The NTA ordered                        If you would like we could request a Motion to the
Denko to appear before the IJ on October 29, 1999, and,                       Judge so you do not have to be present on April 07,
according to the INS, included a warning which stated: “If                    2000, in which case I will be there representing you . . . .
you fail to attend the hearing at the time and place designated
in this notice, or any date and time later directed by the                       Please let our office know if this is something you
Immigration Court, a removal order may be made by the                         would like to consider and although we have the right to
immigration judge in your absence, and you may be arrested                    request it from the Judge, the Judge does not necessarily
and detained by the INS.” Appellee’s Br. at 5.                                have to grant it. However, for your convenience we will
                                                                              attempt to do so if you so desire.
  At this October initial hearing, Denko was represented by
her attorney, Nicoleta Wojnar (“Wojnar”). Denko admitted                  J.A. at 30.2 It is the wording of this letter that forms the basis
to the factual allegations against her and that she was                   for Denko’s assertion of ineffective assistance of counsel.

                                                                               2
    1
                                                                                 Denko’s brief misquotes this letter in a significant way: she omits
     Responde nt suggests that Denko did no t apply for asylum until on   the key phrase “if you so desire.” Appellant’s Br. at 4. Omission of this
or about March 27, 1998.                                                  critical phrase distorts the meaning of the letter.
No. 02-3746                                     Denko v. INS        5    6      Denko v. INS                                No. 02-3746

   Denko, noting that English is not her native language,                    plain reading of the letter indicates that Respondent’s
argues that she interpreted Wojnar’s letter to mean that                     prior counsel was merely extending an offer to file the
Denko’s presence was not required at the master-calendar                     motion. It does not rise to the level of an agreement
hearing. Moreover, Denko claims that Wojnar informed her                     without evidence to indicate that the offer was accepted.
that Wojnar would seek a motion to waive appearance. As a                    There was no evidence of a letter, telephone call, or any
result of Wojnar’s letter, Denko failed to attend her second                 other form of communication that would indicate the
master-calendar hearing on April 7, 2000. Consequently, the                  Respondent accepted the offer and had a reasonable
hearing was conducted in absentia pursuant to § 240(b)(5)(A)                 expectation that it would be filed.
of the INA. Because a waiver of Denko’s personal
appearance was never requested, the IJ ordered Denko                     J.A. at 22 (Decision & Or. of I.J.). Additionally, the IJ noted
removed to Ukraine. The IJ concluded that no special                     that even if Wojnar agreed to file the motion and then failed
circumstances were present to justify Denko’s absence from               to perform, Denko had a duty to follow up because Wojnar’s
the hearing.                                                             letter made clear that the IJ had discretion to grant or deny the
                                                                         motion. The IJ thus held that the in absentia order of removal
  On June 22, 2000, after retaining new counsel, Denko                   was proper.
moved to reopen her removal proceedings based on
ineffective assistance of counsel.3 Denko claimed in her                    Denko timely filed a notice of appeal to the Board on
accompanying affidavit that she misunderstood the mixed                  August 29, 2000. Denko argued that the IJ’s decision was an
signals contained in Wojnar’s letter. Additionally, Denko                abuse of discretion because it relied on Wojnar’s ambiguous
argued that Wojnar never informed her of Denko’s required                letter to show that Denko was aware of the consequences of
presence and never sought the waiver that Wojnar agreed to               her failure to appear. According to Denko, because English
seek in the letter. As evidence of Wojnar’s ineffectiveness,             is not her native tongue and because Wojnar’s confusing letter
Denko pointed out that the INA requires the alien’s presence             negated the IJ’s prior warnings, the motion to reopen should
at the master-calendar hearing except in a few special                   have been granted because Denko’s failure to appear was the
circumstances, none of which was present in Denko’s case.                result of Wojnar’s ineffectiveness as counsel. On June 5,
On August 3, 2000, the IJ denied Denko’s motion. The judge               2002, the Board, using the newly enacted streamlining
reasoned that:                                                           procedures, affirmed the IJ’s order without issuing an
                                                                         opinion. Denko now seeks review in this court, where she
  Apart from [Wojnar’s] letter the Respondent has not                    challenges the BIA’s affirmance of the IJ’s order of removal
  offered any additional evidence to indicate that there was             and the BIA’s use of the affirmance-without-opinion
  an agreement to submit a Motion to Waive Appearance                    procedure.
  nor has the Respondent indicated anything further in her
  affidavit to support the existence of the “agreement.” A                                       II. ANALYSIS
                                                                         A. Denial of the Motion to Rescind the In Absentia
    3
     As required b y In re Lozada, 19 I. & N. Dec. 637 (BIA 19 88),         Order of Removal
Denko simultaneously filed a grievance against Wojnar with the
Cleveland Bar Association. The Ohio Disciplinary Counsel dismissed the     Denko asserts that the IJ abused her discretion when she
grievance, stating that Wojnar adequately communicated with Denko and    denied Denko’s motion to reopen the order of removal.
sought to keep her abreast of the details in her immigration case.
No. 02-3746                                Denko v. INS      7    8     Denko v. INS                                 No. 02-3746

Denko argued in that motion, and argues here on appeal, that      control of the alien,” including “serious illness of the alien or
Wojnar’s assistance was ineffective because Wojnar failed to      serious illness or death of the spouse, child, or parent of the
make clear Denko’s responsibility for appearing at the second     alien, but not including less compelling circumstances.”
hearing on April 7, 2000. In Denko’s estimation, the IJ           8 U.S.C. § 1229a(e)(1). An IJ considers the totality of the
abused her discretion when she failed to give adequate weight     circumstances when making a determination that exceptional
to Denko’s affidavit and supporting evidence that Denko was       circumstances exist. See In re J-P-, 22 I. & N. Dec. 33 (BIA
misinformed and would have reacted differently had she been       1998); see also H.R. Conf. Rep. No. 101-955, at 119, 132
given the proper information.                                     (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6797 (noting
                                                                  that “the conferees expect that in determining whether an
  The denial of a motion to reopen or reconsider a removal        alien’s failure to appear was justifiable the Attorney General
order is reviewed for an abuse of discretion. INS v. Doherty,     will look at the totality of the circumstances to determine
502 U.S. 314, 324 (1992). An abuse of discretion can be           whether the alien could not reasonably have been expected to
shown when the IJ or Board offers no “rational explanation,       appear”). Thus, the question that we must address is whether
inexplicably depart[s] from established policies, or rest[s] on   it was an abuse of discretion for the IJ to determine that
an impermissible basis such as invidious discrimination           Denko’s claims of ineffective assistance of counsel were
against a particular race or group.” Balani v. INS, 669 F.2d      insufficient to constitute an exceptional circumstance.
1157, 1161 (6th Cir. 1982). When the BIA adopts the
reasoning of the IJ, we review the IJ’s decision to determine        Because “[a] deportation proceeding is a purely civil
whether the BIA abused its discretion. Kegode v. Ashcroft,        action,” INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984),
No. 01-3865, 2003 WL 1949609, at *2 (6th Cir. April 22,           an ineffective assistance of counsel claim is reviewed under
2003) (unpublished). When the BIA issues an order pursuant        the Due Process Clause of the Fifth Amendment rather than
to 8 C.F.R. § 1003.1(a)(7), affirming the result of the IJ’s      under the Sixth Amendment. “Fifth Amendment guarantees
decision but not necessarily adopting the IJ’s reasoning, the     of due process extend to aliens in deportation proceedings,
only “rational explanation” is that of the IJ; thus here we       entitling them to a full and fair hearing.” Huicochea-Gomez
review the IJ’s decision for an abuse of discretion, as is        v. INS, 237 F.3d 696, 699 (6th Cir. 2001). Ineffective
discussed more fully in Part II.B. infra.                         assistance of counsel in a deportation proceeding will rise to
                                                                  the level of a due-process violation under the Fifth
   An in absentia order issued pursuant to § 240(b)(5) of the     Amendment “only if the proceeding was so fundamentally
INA can be rescinded if the alien can show that she failed to     unfair that the alien was prevented from reasonably
appear because: (1) she was in custody and her failure to         presenting his case.” Ramirez-Durazo v. INS, 794 F.2d 491,
appear was not her fault; (2) she never received notice of the    499-500 (9th Cir. 1986) (quotation omitted); see also
proceedings; or (3) she had other exceptional circumstances.      Taniguchi v. Schultz, 303 F.3d 950, 958 (9th Cir. 2002) (“To
8 C.F.R. § 1003.23(b)(4)(iii).          See also 8 U.S.C.         show ineffective assistance of counsel, a party must
§ 1229a(b)(5)(C). In Denko’s case, because she was not in         demonstrate that the actions of his/her attorney resulted in
custody and most certainly received multiple forms of notice,     prejudice to the party. A party must prove prejudice by
the order can be rescinded only if the motion to reopen shows     alleging facts that permit the court to infer that competent
that there were exceptional circumstances causing her failure     counsel would have acted otherwise.” (citations omitted)).
to appear. 8 U.S.C. § 1229a(b)(5)(C)(i). Section 1229a(e)(1)      The alien will succeed if he meets his burden of showing
describes exceptional circumstances as matters “beyond the        more than “mere[] ineffective assistance of counsel, but
No. 02-3746                                 Denko v. INS       9    10   Denko v. INS                                No. 02-3746

assistance which is so ineffective as to have impinged upon         unfairness” because she cannot establish that “but for
the fundamental fairness of the hearing in violation of the         [Wojnar’s] legal advice, [she] would have been entitled to
fifth amendment due process clause.” Ramirez-Durazo, 794            continue residing in the United States.” Id. at 699-700
F.2d at 500 (quotation omitted); see also Huicochea-Gomez,          (noting that “[t]he failure to be granted discretionary relief
237 F.3d at 699 (“The alien carries the burden of establishing      does not amount to a deprivation of a liberty interest”). In
that ineffective assistance of counsel prejudiced him or denied     fact, Denko merely asserts that if she had not relied on
him fundamental fairness in order to prove that he has              Wojnar’s allegedly confusing letter, she would have appeared
suffered a denial of due process.”).                                at her scheduled hearing and an order in abstentia would not
                                                                    have been entered against her. While this may very well be
   The IJ determined that Denko did not receive ineffective         accurate, this is not equivalent to a showing that if Denko
assistance of counsel because Wojnar’s letter could not be          attended the hearing she would have been granted the asylum
interpreted to form an agreement that Wojnar would request          she sought. The lack of fundamental unfairness becomes
a waiver of Denko’s appearance. At best, Wojnar’s letter to         even more clear when we consider that Denko neither
Denko could be interpreted as extending an offer to file a          contests the illegal nature of her presence in the U.S. nor her
waiver motion. According to the IJ, Denko offered no other          deportability. In addition, Denko failed to allege any facts
evidence of an agreement between herself and Wojnar.                that tend to show that a competent lawyer would have
Moreover, the IJ noted that even assuming that the letter           behaved differently than Wojnar. See Taniguchi, 303 F.3d at
could be interpreted to constitute an agreement, the letter         958 (noting that prejudice can be established through facts
clearly stated that the IJ had discretion to grant or refuse any    tending to show that a competent lawyer would have acted
request, and thus Denko should have followed up with                differently).
Wojnar to determine the status of her required attendance at
the hearing. The IJ noted that at the initial scheduling              Denko’s suggestion that because her affidavit states that she
hearing, Denko was warned of the consequences of her failure        was confused by Wojnar’s letter the IJ was obligated to find
to appear at any future scheduling hearing both verbally and        that Denko suffered ineffective assistance of counsel is not
in writing.                                                         compelling. Wojnar’s letter reiterated that Denko’s hearing
                                                                    was scheduled for April 7, 2000, and provided Denko an
   The IJ’s determination that Wojnar’s actions were                opportunity to seek to avoid her required attendance at the
insufficient to constitute an exceptional circumstance              hearing. However, the language used in the letter clearly
explaining Denko’s absence, and thus did not violate Denko’s        indicated that a motion to waive appearance could be filed at
due-process rights, was not an abuse of discretion. The IJ          Denko’s request, and Denko presented no evidence of any
provided a “rational explanation” for her conclusions that          such request made to Wojnar. Although Denko argues that
Denko had sufficient notice of the consequences for failure to      her language barrier prohibited her from understanding the
attend her hearing and that the allegations against Wojnar          precise language in the letter, she makes no argument that she
were insufficient to establish ineffective assistance of counsel.   did not understand the IJ’s verbal and written warnings at the
Balani, 669 F.2d at 1161. In addition, Denko was not entitled       initial hearing. Moreover, it was Denko’s responsibility to
to relief on her alleged ineffective-assistance-of-counsel claim    understand the contents of a letter which, under a plain
because she failed to show how her liberty interest was             reading, only can be interpreted as an offer to file a motion
violated. Huicochea-Gomez, 237 F.3d at 699. Denko is                with the immigration court. Because Denko failed to heed the
unable to show the necessary “prejudice” or “fundamental            prior warnings regarding attendance and neglected to confirm
No. 02-3746                                    Denko v. INS          11   12     Denko v. INS                                        No. 02-3746

her own understanding of Wojnar’s letter, we cannot conclude              that § 1003.1(a)(7) violates congressional intent embodied in
that Denko suffered fundamental unfairness.                               the INA, because Congress intended to enact greater
                                                                          procedural protections in administrative hearings for aliens.
   In sum, while Denko has shown that her failure to appear               According to Denko, the administrative-law scheme was
at her hearing precipitated the in absentia order against her,            designed so that aliens would have two de novo reviews of
Denko has failed to meet her burden to show fundamental                   their claims within the administrative system, one with the IJ
unfairness or prejudice arising from Wojnar’s conduct. See                and another with the BIA. In Denko’s estimation,
Huicochea-Gomez, 237 F.3d at 699; Ramirez-Durazo, 794                     § 1003.1(a)(7)’s license to members of the Board to issue
F.2d at 499-500. Because Denko failed to establish an                     summary affirmances without opinions renders de novo
exceptional circumstance through a showing of ineffective                 review by the BIA impossible. Denko also asserts that
assistance of counsel, the IJ did not abuse her discretion in             § 1003.1(a)(7) contradicts other INA provisions which permit
denying Denko’s motion to rescind the in absentia order of                appeals only from final orders. Denko argues that because the
removal, and the BIA did not abuse its discretion in affirming            BIA did not independently render a decision, there is no final
the IJ’s conclusions.                                                     agency order for this court to review.
B. Summary-Affirmance-Without-Opinion Procedure                             Second, Denko asserts a Due Process Clause violation in
                                                                          that the regulation allows the BIA to issue a summary
   On appeal to the Board, Denko challenged the IJ’s denial of            affirmance without also issuing a separate opinion.
her motion to rescind the in absentia order of removal based              According to Denko, because the BIA does not issue its own
on Denko’s failure to establish exceptional circumstances.                opinion, Denko has a diminished opportunity to receive a
The Board, using the summary-affirmance-without-opinion                   “full and fair judicial review” of the final agency order.
procedure (also referred to as the streamlining procedure),               Appellant’s Br. at 7. Denko argues that the Supreme Court
agreed with the IJ’s result. Now on appeal, Denko challenges              has noted that in order for a court to review an agency’s
the streamlining procedure’s compliance with the                          action, the action must be clearly stated because “[i]t will not
requirements of due process and established administrative-               do for a court to be compelled to guess at the theory
law precedent. Denko makes two broad arguments for
striking down 8 C.F.R. § 1003.1(a)(7).4 First, Denko asserts
                                                                                       not involve the application of precedent to a novel
   4
                                                                                       fact situation; or
    Section 10 03.1 (a)(7) states, in relevant p art:                              (B) The factual and legal questions raised on appeal
   The Chairman may designate, from time-to-time, permanent                            are so insubstantial that three -Memb er review is
   Board Members who are authorized, acting alone, to affirm                           not warranted.
   decisions of Immigration Judges and the Service without                    ...
   opinion. . . . The single Board Member to whom a case is                   An order affirming without opinion, issued under authority of
   assigned may affirm the decision of the Service or the                     this provision, shall not include further explanation or reasoning.
   Immigration Judg e, without opinion, if the Board Member                   Such an order approves the result reached in the decision below;
   determines that the result reached in the decision under review            it does not necessarily imply approval of all of the reasoning of
   was correct; that any errors in the decision under review were             that decision, but does signify the Board’s conclusion that any
   harmless or nonmaterial; and that                                          errors in the decision o f the Imm igration Judg e or the Service
        (A) The issue on appeal is squarely controlled by                     were harmless or nonm aterial.
            existing Board o r federal court precedent and does           8 C.F.R. § 100 3.1(a)(7).
No. 02-3746                                       Denko v. INS        13     14       Denko v. INS                                         No. 02-3746

underlying the agency’s action; nor can a court be expected to               Board adopts the decision of the IJ in lieu of issuing its own
chisel that which must be precise from what the agency has                   opinion, we review the IJ’s decision as the final agency
left vague and indecisive.” SEC v. Chenery Corp., 332 U.S.                   decision. Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir. 1995).
194, 196-97 (1947). Denko cites a Ninth Circuit case for the
proposition that where the Board fails to offer a reasoned                      At the time Denko appealed to the Board, the Board’s
explanation, the reviewing court must set aside the Board’s                  general policy was to sit in three-member panels to review IJ
decision. See Tukhowinich v. INS, 64 F.3d 460, 464 (9th Cir.                 decisions on appeal.6 Under § 1003.1(a)(7), adopted by the
1995). The main problem with the summary affirmance                          Department of Justice (“DOJ”) in 1999, a single Board
process, according to Denko, is that the basis for the Board’s               member is authorized to issue a decision affirming an IJ’s
affirmance is concealed from our review by the explicit                      decision without stating the basis for such affirmance. This
command of the regulation. Denko asserts that this                           affirmance implies that the IJ decided the case correctly, any
concealment makes the summary-affirmance-without-opinion                     errors committed by the IJ were immaterial or harmless, and
procedure violate due process.5                                              either the issue is squarely controlled by precedent and does
                                                                             not involve a novel factual issue or the factual and legal issues
   “It is well established that the Fifth Amendment entitles                 raised on appeal are too insubstantial to warrant a three-
aliens to due process of law in deportation proceedings.”                    member review. 8 C.F.R. § 1003.1(a)(7). If an appeal from
Reno v. Flores, 507 U.S. 292, 306 (1993). As an initial                      a decision of the IJ meets the regulation’s criteria, the Board
matter, aliens who have entered the United States, both                      issues an order containing the following statement: “The
lawfully and unlawfully, cannot be “expelled” without the                    Board affirms, without opinion, the result of the decision
government following established procedures consistent with                  below. The decision below is, therefore, the final agency
the requirements of due process. Shaughnessy v. United                       determination.” Id. at § 1003.1(a)(7)(iii). If an appeal does
States ex rel. Mezei, 345 U.S. 206, 212 (1953). We review de                 not meet the criteria contained in § 1003.1(a)(7), a three-
novo claims of due-process violations in deportation                         member panel of the BIA must review the petition. Id. at
proceedings. Huicochea-Gomez, 237 F.3d at 699. When the                      § 1003.1(a)(7)(iv).
                                                                               Section 1003.1(a)(7) specifically indicates that a summary
    5                                                                        affirmance “does not necessarily imply approval of all of the
      This argument is also the heart of the Amicus Curiae’s (hereinafter    reasoning of the [affirmed] decision.”                 Id. at
“American Immigration Law Foundation”) brief. Both Denko and the
American Immigration Law Foundation agree that the failure of the Board
                                                                             § 1003.1(a)(7)(iii). In the comments to the proposed rule, the
to issue an opinion makes it impossible for a reviewing court to determine
whether Denko received any pro cess as required by the Due Process
Clause.
     A summary affirmance does not indicate which of the[]                        6
     alternatives [in § 1003.1(a)(7)] was applied to the case. It is               As noted by the American Immigration Law Found ation, the most
     equally impossible to determine how the criteria were analyzed:         recent revision s to the regulation s mandate single-member review as the
     what precedent was considered; why the facts were found not to          standard procedure for appeals. Now a three-memb er panel on appeal is
     be novel; what factual and legal questions were considered; and         appro priate only when the BIA needs to establish precedent, the BIA
     the standard for determining whether questions raised on appeal         needs to settle differences am ong IJs, the ca se is of national importance,
     were “so insubstantial” that three-Member review is not                 the IJ’s d ecision is not in co nform ity with the law, the IJ m akes a clearly
     warranted.                                                              erroneous factual determination, or the Board nee ds to reverse the IJ’s
Amicus Br. at 13.                                                            decision. 8 C.F.R. § 1003.1(e)(6).
No. 02-3746                                       Denko v. INS        15     16       Denko v. INS                                      No. 02-3746

DOJ identified the impetus behind permitting a summary                          In response to Denko’s first argument8 — that
affirmance by a single Board Member:                                         § 1003.1(a)(7) is inconsistent with administrative law — we
                                                                             note that the cases she cites stand for the proposition that the
  To operate effectively in an environment where over                        BIA has the power to conduct reviews de novo, not that it is
  28,000 appeals and motions are filed yearly, the Board                     required to do so. See Abdulai v. Ashcroft, 239 F.3d 542,
  must have discretion over the methods by which it                          548-49 (3d Cir. 2001) (“Because an alien facing removal may
  handles its cases. The process of screening, assigning,                    appeal to the BIA as of right, and because the BIA has the
  tracking, drafting, revising, and circulating cases is                     power to conduct a de novo review of IJ decisions, there is no
  extremely time consuming. Even in routine cases in                         ‘final order’ until the BIA acts.”); Castillo v. INS, 951 F.2d
  which all Panel Members agree that the result reached                      1117, 1120-21 (9th Cir. 1991) (“The BIA has the power to
  below was correct, disagreements concerning the                            conduct a de novo review of the record, to make its own
  rationale or style of a draft decision can require                         findings, and to determine independently the sufficiency of
  significant time to resolve. The Department has                            the evidence.”). While deliberate action from the BIA may be
  determined that the Board’s resources are better spent on                  necessary, Denko’s suggestion that a summary affirmance
  cases where there is a reasonable possibility of reversible                without opinion is not a final order is directly contradicted by
  error in the result reached below.                                         the terms of the regulation which indicate that the IJ’s opinion
                                                                             becomes the final agency determination subject to review.
Executive Office for Immigration Review; Board of                            8 C.F.R. § 1003.1(a)(7)(iii) (“The Board affirms, without
Immigration Appeals: Streamlining, 64 Fed. Reg. 56135,                       opinion, the results of the decision below. The decision
56137 (Oct. 18, 1999) (hereinafter “Streamlining”).7 To                      below is, therefore, the final agency determination.”).
remedy the problems resulting from the dramatic increase in
appeals, the Attorney General sought to implement a new                        Courts have consistently allowed the IJ’s decision to
streamlined appellate review system because “in a significant                become the final agency determination subject to review
number of appeals and motions filed with the Board, a single                 when the Board has adopted the IJ’s findings or has deferred
appellate adjudicator can reliably determine that the result                 to the IJ’s decision. See Guentchev v. INS, 77 F.3d 1036,
reached by the adjudicator below is correct and should not be                1038 (7th Cir. 1996) (“To adopt someone else’s reasoned
changed on appeal.” Id. at 56135. By expressly prohibiting                   explanation is to give reasons.”); Abdulai, 239 F.3d at 549
the single Board member from including his or her own                        n.2; Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996). The Third
explanation or reasons within the order, the regulation further              Circuit in Abdulai noted that there are occasions where “as a
alleviates the burden on the Board.                                          matter of logic” the courts of appeals are reviewing
                                                                             effectively the IJs’ decisions, such as when the BIA affirms
                                                                             on the basis of the IJ’s opinion. Abdulai, 239 F.3d at 549 n.2.

    7                                                                             8
       28,000 appeals in 1998 was a dramatic increase from the 3,000               In Carriche, the Ninth Circuit noted that alien petitioners “have
app eals handled by the BIA in 1984 . In 2002, the number of appeals to      unde rstandable concerns about the streamlining process” including “the
the BIA reached 34,00 0. Carriche v. Ash croft, 335 F.3d 100 9, 10 12 (9th   lack of transparency in the process, the increasing frequency in which the
Cir. 2003) (citing Executive Office for Immigration Review, Statistical      process is invoked, the speed with which appeals are decided, and a belief
Year Book:            2 002, a t 49, fi g . 2 3 , a va i l ab l e at         that the BIA may be abdicating its statutorily-ma ndated ro le of ap pellate
http://www.usdoj.gov/eoir/statspub/fy02syb.pdf).                             review.” Carriche, 335 F.3d at 1013.
No. 02-3746                                Denko v. INS      17    18       Denko v. INS                                      No. 02-3746

Moreover, Tukhowinich expressly states that the BIA has the        procedure is distinguishable from an express adoption of the
authority to rely on an IJ’s opinion that provides the required    IJ’s opinion and rationale, it also is true that a summary
reasoning. See Tukhowinich, 64 F.3d at 463. All of these           affirmance can be issued only when “the Board Member
decisions, however, require that the BIA give the IJ’s findings    determines that the result reached in the decision under
“individualized consideration.” See, e.g., Chen, 87 F.3d at 8.     review was correct.” 8 C.F.R. § 1003.1(a)(7). Thus, the BIA
When the BIA does not perform its duty to “review the record       member agrees with the result reached by the IJ, and then also
and assess the IJ’s conclusions,” the BIA abuses its own           determines that any errors in the IJ’s decision are harmless or
discretion. Tukhowinich, 64 F.3d at 463. Thus, we must             nonmaterial and that the issue raised is controlled by
address Denko’s argument that the summary affirmance               precedent and is not a novel issue or that the legal and factual
procedure enables BIA members to give less than full               issues raised are insubstantial. By necessity, then, the BIA
consideration to the IJ decisions they review. The First           member must give the case his or her full consideration and
Circuit previously has addressed this argument and concluded       assess the IJ’s decision before the BIA member can determine
that a challenge to the summary affirmance procedure cannot        that summary affirmance without opinion is the proper
stand when the only evidence that the summary affirmance           procedure.9 So while Denko’s case is not directly on point
procedure causes the BIA to disregard its review                   with those cases where the BIA affirms on the basis of the
responsibilities is the nature of the procedure itself combined    IJ’s opinion, the cases nonetheless are similar in that both
with statistics indicating that thorough review would be           require agreement with the end-result as determined by the IJ
difficult. See Albathani v. INS, 318 F.3d 365, 378-79 (1st Cir.    and both decline to require the Board to issue its own opinion
2003). We agree that a petitioner must show more. Here,            using different words to reach the same end-result. See
Denko has provided no evidence that the Board failed to give       Guentchev, 77 F.3d at 1038.
Denko’s case proper review. See id. at 379 (“We are not
willing, however, in the absence of [] evidence [of systemic         In response to Denko’s due-process argument, the INS
violation by the BIA of its regulations] to infer . . . that the   points out that although the regulations permit appeals to the
required review is not taking place.”); see also Mendoza v.        Board, such review is not constitutionally compelled. The
U.S. Att’y Gen., 327 F.3d 1283, 1289 (11th Cir. 2003) (“That       INS relies for support on the Seventh Circuit’s opinion in
a one-sentence order was entered is no evidence that the BIA       Guentchev, which noted that, “[t]he Constitution does not
member did not review the facts of [petitioner’s] case.”). We      entitle aliens to administrative appeals. . . . [Thus, t]he
will not assume such a complete break-down in the system in
the absence of tangible evidence to support such a conclusion.
                                                                        9
                                                                        The American Immigration Law Found ation points out that the
   Moreover, Denko’s argument that the summary affirmance          February 2002 proposals by the Attorney General included reducing the
without opinion permitted by § 1003.1(a)(7) violates the           Board size from twenty-three to eleven mem bers. A micus Br. at 4; see
mandate that agencies must set forth reasons for their             also Lisa Getter & Jonathan Peterson, Speed ier Rate of Deportation
                                                                   Rulings Assailed, Los A ngeles Tim es, Jan. 5, 20 03, at 1. This seem ingly
decisions also fails because the IJ’s opinion becomes the          contradictory proposal intends to red uce the B oard’s bac klog and the
reasoned explanation needed for review. Albathani, 318 F.3d        amount of time sp ent on each case while limiting the number of persons
at 377 (noting that Chenery only requires the relevant agency,     authorized to review rulings from the immigration judges. Spe edier Rate
here the INS, to give reasons for its decisions, which may         of Deportation Rulings Assailed, supra. The article notes that two Bo ard
issue from either the BIA or an IJ). While Denko has a viable      members each signed more than fifty cases in one da y, which equates to
                                                                   “a decision nearly every 10 minutes if [one] worked a nine-hour day
argument that the BIA’s affirmance-without-opinion                 without a break.” Id.
No. 02-3746                                 Denko v. INS      19    20     Denko v. INS                                         No. 02-3746

Attorney General could dispense with the Board and delegate         (unpublished order) (“The BIA’s summary affirmance of a
[his] powers to the immigration judges, or could give the           flawed decision by an IJ, however, may lead us to conclude
Board discretion to choose which cases to review.” Id. at           that the BIA’s decision is insufficient.”). Thus, we are not
1037-38 (holding in a case decided before streamlining was          forced to guess at the rationale of the BIA, but instead we
adopted that “the Board fulfills its duty by summarily              evaluate the IJ’s explanation as that of the Board; the Board
affirming an immigration judge’s opinion”); see also                cannot rely on an unarticulated basis for its determination.
Albathani, 318 F.3d at 376 (“An alien has no constitutional         See Fed. Power Comm’n v. Texaco, Inc., 417 U.S. 380, 397
right to any administrative appeal at all.”). Accordingly, the      (1974)(“An agency’s order must be upheld, if at all, on the
Seventh Circuit has held that a reasoned decision by an             same basis articulated in the order by the agency itself.”). See
administrative law judge and review by a court of appeals is        generally Albathani, 318 F.3d at 377 (noting that “[t]he
sufficient to satisfy the requirements of due process.              summary affirmance scheme does create . . . problems [for
Guentchev, 77 F.3d at 1038. As have many circuits before us,        review], but they do not render the scheme a violation of due
we now join the recent trend of our sister circuits by              process or render judicial review impossible”); see also
concluding that the BIA’s streamlining procedures do not            Carriche, 335 F.3d at 1014 (“[T]he streamlining procedures
themselves alone violate an alien’s rights to due process.          do not compromise our ability to review the INS’s decision,
Carriche, 335 F.3d at 1012 (Ninth Circuit); Georgis v.              to the extent we have jurisdiction to do so, because we can
Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003) (“Since we              review the IJ’s decision directly.”). Thus, Denko’s due
review directly the decision of the IJ when a case comes to us      process rights are not violated simply because the BIA did not
from the BIA pursuant to § 1003.1(a)(7), our ability to             issue a reasoned explanation.10
conduct a full and fair appraisal of the petitioner’s case is not
compromised, and the petitioner’s due process rights are not
violated.”); Mendoza, 327 F.3d at 1289 (Eleventh Circuit);               10
                                                                             Mo reover, the review process offered under § 1003.1(a)(7)
Soadjede v. Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003);            com ports with the req uirements of d ue process as defined in Mathews v.
Albathani, 318 F.3d at 376-79 (First Circuit).                      Eldridge, 424 U .S. 319 (1976). “The fundamental requirement of due
                                                                    process is the opportunity to be heard at a meaningful time and in a
  Likewise, it is not “a due process violation for the BIA to       meaningful mann er.” Id. at 333 (quotation omitted). The Court identified
affirm the IJ’s decision without issuing an opinion.”               three factors to consider when determining whether administrative
Carriche, 335 F.3d at 1014. Even if the BIA would view the          procedures compo rt with due proc ess:
                                                                          First, the private interest that will be affected by the official
factual and legal issues differently from the immigration                 action; second, the risk of an erroneous deprivation of such
judge, the summary-affirmance-without-opinion rule renders                interest through the procedures used, and the pro bab le value, if
the IJ’s decision the final agency order, and we review that              any, of additional or substitute procedural safeguards; and
decision. Thus, Denko receives the “full and fair” review that            finally, the Government’s interest, including the function
she is entitled to receive. Huicochea-Gomez, 237 F.3d at 699;             involved and the fiscal and administrative burdens that the
                                                                          add itional or substitute procedural req uirement would entail.
see Georgis v. Ashcroft, 328 F.3d at 967. Moreover, “[i]n           Id. at 335.
functional terms, if the BIA does not independently state a               Evaluating the Mathews factors in the present case, we believe that
correct ground for affirmance in a case in which the reasoning      it is clear that Denko has a substantial interest in having her in ab sentia
proffered by the IJ is faulty, the BIA risks reversal on appeal.”   order of removal rescinded. Denko, however, has not shown how the
Albathani, 318 F.3d at 378; see also Tuhin v. Ashcroft, No.         streamlining procedures increase the risk that she will be deprived
                                                                    erroneously of her interest in remaining in the United States. See
02-2661, 2003 WL 1342995, at *2 (7th Cir. Feb. 11, 2003)            gen erally Carriche, 335 F.3d at 1015 (“[T ] he alleged risks of erroneous
No. 02-3746                                          Denko v. INS         21     22    Denko v. INS                                 No. 02-3746

   Separate from her attack on the statute’s constitutionality,                  § 701(a)(2)). Interpreting this phrase using legislative history,
Denko also argues that use of the summary-affirmance                             the Heckler Court determined that judicial review is
procedures in this case was improper because her case did not                    precluded “if the statute is drawn so that a court would have
meet the criteria for application of this procedure. Denko’s                     no meaningful standard against which to judge the agency’s
main contention is that there are factual issues — whether                       exercise of discretion. In such a case, the statute (‘law’) can
Wojnar’s letter was ambiguous, whether Denko would have                          be taken to have ‘committed’ the decisionmaking to the
attended the hearing, whether Denko was unable to                                agency’s judgment absolutely.” Id. at 830. The INS argues
understand the letter — that are not insubstantial and require                   that a Board member’s decision to streamline a case is a
review by a three-member panel. In response, the INS asserts                     decision that has been committed to the agency’s discretion
that the Board’s decision to review Denko’s appeal using                         because it involves “‘a complicated balancing of a number of
summary-affirmance procedures is insulated from review.                          factors which are peculiarly within the expertise of the
Citing Heckler v. Chaney, 470 U.S. 821 (1985), the INS states                    agency.’” Appellee’s Br. at 19 (quoting Heckler, 470 U.S. at
that because the Administrative Procedure Act (“APA”)                            831). Specifically, the INS argues that in order for the agency
governs judicial review of agency actions, judicial review is                    to determine that no novel or complex issues are raised it
inappropriate when the “agency action is committed to                            must evaluate the Board’s caseload — a task ideally suited to
agency discretion by law.” Id. at 828 (quoting 5 U.S.C.                          the Board, not the court.
                                                                                    As an initial matter, this argument for committing this
                                                                                 decision to the agency’s discretion is doubtful because there
deprivation are mitigated through the regulatory structure itself.               are judicially manageable standards available to a reviewing
Petitioners receive a reasoned decision from the IJ an d have the option to      court. Streamlining procedures are used only when the result
seek reconsideration fro m the B IA. . . . [I]n cases where the courts of        reached by the IJ is correct, any errors are harmless or
appeal have jurisdiction, petitioners are also entitled to an additional level
of review.”). It is not at all clear that requiring more elaborate review by
                                                                                 nonmaterial, and either the issue is controlled by precedent
the BIA would secure Denko’s interest in not being deported.                     and does not require application to novel facts or the factual
     The INS has a strong interest in its procedures for accura te, efficient,   and legal questions are insubstantial and do not warrant three-
and economical adjudication of immigration matters. The DOJ enacted              member review. These factors straight from the regulation
this streamlining procedure in response to statistics showing that between       itself provide the necessary guidelines for judicial review.
1984 and 1999, appeals and motions to the Board increased more than              Moreover, the size of the BIA’s caseload — a factor which
nine-fold. Streamlining, 64 Fed. Reg. at 56136. Other objectives of the
DOJ in enacting this procedure included promo ting uniformity in the IJ          the Board may be better equipped to assess — has no
decisions, deciding cases in a timely fashion, assuring the correct              relevance in deciding which cases are appropriate for
disposition of cases, and reducing the BIA ’s back log. Id. The Supreme          summary affirmance. That determination is made using the
Court has indicated its approval of a gencies fashioning their own               factors identified in § 1003.1(a)(7). Moreover, as maintained
app ropriate procedures: “‘administrative agencies and administrators will       in a Seventh Circuit opinion, for many streamlined cases “it
be familiar with the industries which they regu late and will be in a better
position than federal courts or Congress itself to design procedural rules       makes no practical difference whether the BIA properly or
adapted to the peculiarities of the industry and the tasks of the agency         improperly streamlined review of [Denko’s] case,” because
involved.’” Vermont Yankee Nuclear Power Corp. v. Natural R es. Def.             when “we review directly the decision of the IJ when a case
Counc il, Inc., 435 U.S. 519, 525 (1978) (quotation omitted). Denko has          comes to us from the BIA pursuant to [8 C.F.R.
failed to show how more elaborate proceedings would better protect her           § 1003.1(a)(7)], our ability to conduct a full and fair appraisal
interest in rema ining in the United States, and thus has failed to overcome
the governm ent’s strong interest.
No. 02-3746                                Denko v. INS      23

of [Denko’s] case is not compromised.” Georgis, 328 F.3d at
967 (footnote omitted).
   Assuming, without deciding, that judicial review properly
is employed to assess whether the BIA correctly designated
a case for summary affirmance, Denko’s argument that the
summary-affirmance-without-opinion procedure was invoked
improperly in her case nonetheless must fail. The IJ’s
decision to deny the rescission of Denko’s in absentia order
of removal was proper because Denko failed to appear for her
scheduled hearing although she was warned on numerous
occasions that her presence was required. Moreover, because
Denko did not produce any evidence other than Wojnar’s
letter and Denko’s affidavit to establish ineffective assistance
of counsel, the factual and legal issues raised were
insubstantial. Denko clearly did not take affirmative steps to
accept Wojnar’s offer to request an attendance waiver from
the IJ, and Denko’s self-serving affidavit did not give any
indication that she would have prevailed in her removal
proceedings if only she had had competent counsel. While it
may be true that Denko misinterpreted Wojnar’s letter due to
Denko’s language barrier, the IJ’s conclusion that Denko
should have been diligent to verify with Wojnar the status of
Denko’s alleged waiver seems more than appropriate
considering the previous warnings which Denko does not
suggest she failed to comprehend. Because the facts and legal
issues of Denko’s case fit precisely within the boundaries of
§ 1003.1(a)(7), the Board properly invoked the summary-
affirmance-without-opinion procedures.
                    III. CONCLUSION
  Based on the foregoing conclusions, we AFFIRM the
judgment of the IJ and uphold § 1003.1(a)(7)’s streamlining
procedures as constitutional and consistent with
administrative-law precedent.
