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


10-26-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-1085




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"Smriko v. Atty Gen USA" (2004). 2004 Decisions. Paper 163.
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PRECEDENTIAL                                    Peter D. Keisler
                                                Anthony Wray Norwood
  IN THE UNITED STATES COURT                    Earle B. Wilson
           OF APPEALS                           Michael P. Lindemann
      FOR THE THIRD CIRCUIT                     John D. Williams
                                                Terri J. Scadron (Argued)
                                                U.S. Department of Justice
               NO. 03-1085                      Office of Immigration Litigation
                                                Ben Franklin Station
                                                P.O. Box 878
             SEJID SMRIKO                       Washington, DC 20044
               Petitioner

                     v.
                                                      OPINION OF THE COURT
          JOHN ASHCROFT,
        ATTORNEY GENERAL
       OF THE UNITED STATES
             Respondent                         STAPLETON, Circuit Judge:

                                                        Sejid Smriko was a lawful
  On Petition for Review of an Order            permanent resident of the United States for
  of the Board of Immigration Appeals           less than five years when he committed a
              A71-685-464                       crime involving moral turpitude that, under
                                                8 U.S.C. § 1227(a)(2)(A)(i), subjects one
                                                to deportation. Smriko was admitted to the
      Argued April 16, 2004                     United States, however, with “refugee
 BEFORE: RENDELL, STAPLETON                     status,” pursuant to a section of the
     and LAY,* Circuit Judges                   Immigration and Nationality Act (“INA”)
                                                that implements the United Nations
   (Opinion Filed: October 26, 2004)            Protocol Relating to the Status of
                                                Refugees. Smriko requested that the
                                                Immigration Judge (“IJ”) terminate his
James G. Gavin (Argued)                         removal proceedings because, he argued,
21 West Broad Street                            refugee status can only be cancelled
Burlington, NJ 08016                            pursuant to limited grounds specified in
 Attorney for Petitioner                        the INA, none of which were met here.
                                                The IJ agreed with Smriko that, if he still
* Hon. Donald P. Lay, United States             had refugee status, he would not be
Circuit Judge for the Eighth Circuit, sitting   eligible for deportation. The IJ suggested,
by designation.                                 however, that when an alien “voluntarily
                                                chooses” to “adjust” his status from that of
a refugee to that of a lawful permanent                 deference in making such determinations,
resident, the alien loses refugee status and            we then examine Smriko’s contention that
its accompanying statutory protections.                 his case was improperly subjected to the
Although the IJ did not provide any                     BIA’s affirmance without opinion process,
supporting precedent, he denied Smriko’s                thereby erroneously preventing the BIA
motion to terminate removal proceedings                 from offering its interpretation of the
based on this reading of the INA. The                   statutory provision at issue here. We then
Board of Immigration Appeals (“BIA” or                  conclude that, in most situations, we may,
“Board”) thereafter summarily affirmed                  in reviewing a final order of deportation,
the IJ’s decision without opinion. Smriko               review the BIA’s decision to issue an
now petitions for review of the IJ’s                    affirmance without opinion in a particular
decision, as well as the BIA’s decision to              case. Here, we conclude that the Board
affirm without opinion a case that he                   member charged with examining Smriko’s
maintains raises novel issues of statutory              case clearly acted arbitrarily and
interpretation.                                         capriciously by issuing an affirmance
                                                        without opinion, in violation of the BIA’s
        We first examine the merits of                  streamlining regulations, with respect to a
Smriko’s challenge, and conclude that his               case presenting novel and substantial legal
view of refugee status–that it can only be              issues without precedent. This agency
terminated pursuant to specific enumerated              action deprived us of a Board
grounds contained in the INA–is consistent              interpretation of the INA that we believe
with the text and some of the legislative               the applicable agency regulations intended
history of the INA. We then note the                    us to have before addressing the merits of
absence of any precedent counseling in                  Smriko’s petition. Accordingly, we will
favor of or against Smriko’s proposed                   grant the petition for review and remand so
interpretation, and briefly examine the                 that the BIA may exercise its expertise and
Government’s argument that an overall,                  address Smriko’s proposed reading of the
expert examination of our nation’s                      INA.
immigration laws and system would
counsel against Smriko’s proposed reading                                   I.
of the INA, and, instead, would suggest
that the INA “implicitly” contemplates that                    The facts before us are neither
refugees who achieve lawful permanent                   complicated, nor in dispute. Smriko is a
resident status simultaneously lose their               native and citizen of Bosnia-Herzegovina
refugee status.                                         who was admitted to the United States as
                                                        a refugee on October 20, 1994 pursuant to
          Recognizing that the BIA has been             8 U.S.C. § 1157. At some point thereafter,
c h a r g e d w i t h p r o v id i n g e x p e rt       Smriko was granted lawful permanent
interpretations of our nation’s immigration             resident status pursuant to 8 U.S.C. §
laws and that this Court must give the BIA              1159(a)(2), backdated to his entry date of

                                                    2
October 20, 1994.                                       status, and after the BIA’s affirmance
                                                        without opinion, this petition followed.1
        Within five years of his entry into
the United States, Smriko was convicted                                     II.
on three occasions of retail theft offenses
in Pennsylvania and New Jersey. On                              We have jurisdiction to review a
December 26, 1996, he was convicted of                  final order of removal pursuant to 8 U.S.C.
retail theft in violation of 18 Pa. Cons.               § 1252(a)(1). See M ulanga v. Ashcroft,
Stat. § 3929(a)(1), and sentenced to pay a              349 F.3d 123, 131 (3d Cir. 2003).
fine and costs. On April 1, 1997, he was                “[W]hen the BIA issues an [affirmance
convicted of shoplifting in violation of                without opinion] under the streamlining
N.J. Stat. Ann. § 2C:20-11b(2), and                     regulations, we review the IJ’s opinion and
received a suspended sentence of five                   scrutinize its reasoning.” Dia v. Ashcroft,
days’ imprisonment. Finally, on April 8,                353 F.3d 228, 245 (3d Cir.2003) (en banc).
1999, he was convicted of retail theft and              “ W e review the [agency’s] legal
receiving stolen property, in violation of              determinations de novo, subject to
18 Pa. Cons. Stat. §§ 3929(a) & 3925(a),                established principles of deference.”
respectively, and was assessed costs and                Wang v. Ashcroft, 368 F.3d 347, 349 (3d
sentenced to one year of probation.                     Cir. 2004) (citing Chevron v. Nat. Res.
                                                        Def. Council, 467 U.S. 837, 844 (1984));
          The former Immigration and                    see infra note 6 (discussing the propriety
N a t u r a l iz a t io n S ervice (“ I.N .S .” )       of giving Chevron deference to an IJ
commenced removal proceedings against                   decision that has been affirmed without
Smriko on August 24, 1999, charging him                 opinion by the BIA).
with removability on two statutory
grounds: (1) u nde r 8 U .S.C . §                                          III.
1227(a)(2)(A)(i), as an alien convicted of
a crime involving m oral turpitude                           Title 8, Section 1227(a)(2)(A)(i) of
committed within five years after his                   the United States Code, provides, in
admission for which a sentence of one year
or longer may be imposed; and (2) under 8
U.S.C. § 1227(a)(2)(A)(ii), as an alien                    1
                                                             The Government initially argued that
convicted of two or more crimes involving
                                                        the jurisdictional bar of 8 U.S.C. §
moral turpitude not arising out of a single
                                                        1252(a )(2 ) (C ) applied here, and,
scheme of criminal misconduct. Smriko
                                                        accordingly, moved to dismiss the petition
argued that his convictions were not for
                                                        for lack of jurisdiction. The Government
crimes involving moral turpitude, but the
                                                        has since conceded, and we agree, that §
IJ rejected that challenge. The IJ also
                                                        1252(a)(2)(C) is not implicated in this
r e j e cted Smriko’s aforementioned
                                                        case. Accordingly, we will deny by
argument with respect to his refugee
                                                        separate order the motion to dismiss.

                                                    3
pertinent part:                                     crime involving moral turpitude. He
                                                    argues that shoplifting, the offense for
        Any alien who–(I) is                        which he was convicted under § 3925(a),
        convicted of a c rime                       is not a “crime involving moral turpitude,”
        involving moral turpitude                   essentially because it is a prevalent crime
        committed within five years                 in our modern world, and therefore that his
        . . . after the date of                     violation of § 3925(a) would not qualify
        admission, and (II) is                      him for deportation under 8 U.S.C. §
        convicted of a crime for                    1227(a)(2)(A)(i).
        which a sentence of one
        year or longer may be                                W e recently explain ed, in
        imposed, is deportable.                     e x a m ining § 3925( a ) , the v e ry
                                                    Pennsylvania statute at issue here, that
Id. As noted above, Smriko was convicted            “[w]hether an alien’s crime is one
for receiving stolen property under 18 Pa.          involving moral turpitude is determined by
Cons. Stat. § 3925(a).2 That conviction             the statute and record of conviction rather
unquestionably met the criteria of §                than the alien’s specific act.”          De
1227(a)(2)(A)(i). Smriko committed the §            Leon-Reynoso v. Ashcroft, 293 F.3d 633,
3925(a) violation on December 19, 1998,             635 (3d Cir. 2002). That is, “the nature of
within five years of his date of admission          an alien’s crime is determined by the
to the United States. Under Pennsylvania            statute and record of conviction, not from
law, given the amount of stolen property            the specific acts surrounding the
involved here, that offense constituted a           conviction.” Id. (parenthetically quoting
misdemeanor in the third degree, see 18             Alleyne v. I.N.S., 879 F.2d 1177, 1185 (3d
Pa. Cons. Stat. § 3903(b)(2), which carried         Cir.1989)) (alteration omitted). While we
a potential prison sentence of one year, see        noted that “[t]he term ‘moral turpitude’
18 Pa. Cons. Stat. § 1104(3).                       defies a precise definition,” we indicated
                                                    that it contains “an ‘honesty’ component .
      Smriko argues only that his                   . . , which includes: ‘[c]onduct that is
conviction under § 3925(a) was not for a            contrary to justice, honesty, or morality.’”
                                                    Id. at 635-36 (quoting Black’s Law
                                                    Dictionary 1026 (7th ed. 1999))
    2                                               (additional citations omitted). After noting
     That section provides: “A person is
                                                    that “[c]ourts have held that knowingly
guilty of theft if he intentionally receives,
                                                    receiving stolen property is a crime of
retains, or disposes of movable property of
                                                    moral turpitude,” 293 F.3d at 636, and that
another knowing that it has been stolen, or
                                                    violation of 18 Pa. Cons. Stat. § 3925(a)
believing that it has probably been stolen,
                                                    “speak[s] . . . to the honesty of a person,”
unless the property is received, retained, or
                                                    id. at 637, we determined that a violation
disposed with intent to restore it to the
                                                    of that section amounts to a crime
owner.” Id. § 3925(a).

                                                4
involving moral turpitude, id. at 637. De          be terminated through a specific statutory
Leon-Reynoso clearly controls this case.           process before he can be removed begins
We accordingly reject Smriko’s insistence          with the 1967 United Nations Protocol
that his § 3925(a) conviction was not for a        Relating to the Status of Refugees, 19
“crime involving moral turpitude.” 3               U.S.T. 6223, T.I.A.S. No. 6577 (the
                                                   “Protocol”). The United States is a party
                    IV.                            to the Protocol, which incorporates by
                                                   reference Articles 2 through 34 of the
        Our task is not complete, however,         1951 United Nations Convention Relating
as Smriko suggests that the INA affords            to the Status of Refugees, 19 U.S.T. 6259,
him additional protection as one who               189 U.N.T.S. 150 (the “Convention”), see
received “refugee status” upon his entry           I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,
into the United States. While Smriko               427 (1999), and incorporates the definition
concedes that 8 U.S.C. § 1227(a)(2)(A)(i)          of the term “refugee” found in Article I of
subjects a lawful permanent resident, such         the Convention. See Protocol Art. I(1) &
as himself, to deportation, he argues that         (2).
the INA only allows one with “refugee
status” to be removed under limited                        Under Article I of the Convention,
circumstances. He argues that “refugee             entitled “Definition of the term ‘refugee,’”
status” coexists with lawful permanent             one ceases to be a refugee if any of six
resident (“LP R”) status, providing                events occur. See Convention Art. I(C).
additional protection, and that he cannot be       In the case of a refugee in Smriko’s
removed unless one of the limited grounds          situation, refugee status would not cease
under the INA for cancelling refugee               until “he has acquired a new nationality,
status is met.                                     and enjoys the protection of the country of
                                                   his new nationality.” Id. I(C)(3). The
 A. Smriko’s Contention that Refugee               United Nations High Commissioner for
Status Coexists with LPR Status                    Refugees has taken the position that this
                                                   provision “means that the refugee must
       Smriko’s contention that refugee            secure and be able to exercise all the rights
status coexists with LPR status and must           and benefits entailed by possession of the
                                                   nationality of the country” before losing
                                                   refugee status, and because LPR status
    3                                              does not entitle one to the same rights and
     Having determined that Smriko’s §
                                                   benefits as a United States national,
3925(a) conviction amounted to a
                                                   obtaining LPR status is not a basis for the
deportable offense under 8 U.S.C. §
                                                   cessation of refugee status under the
1227(a)(2)(A)(i), we need not address the
                                                   Convention. See Interpreter Releases,
Government’s charge that Smriko’s other
                                                   Becoming LPR Does Not Terminate
convictions amounted to deportable
                                                   Refugee Status, UNHCR Says, 80 No. 11
offenses.

                                               5
Inter. Rel. 413, App. (2003) (statement                    nationality, is outside any
from Office of the United Nations High                     country in which such
Commissioner for Refugees).                                pe r son last habitually
Accordingly, Smriko argues that the                        resided, and who is unable
Convention contemplates him retaining                      or unwilling to return to,
refugee status even after he achieved LPR                  and is unable or unwilling to
status because attaining LPR status did not                avail himself or herself of
give him a “new nationality” that would                    the protection of, that
terminate the need for refugee status under                country because of
the Convention.                                            persecution                or   a
                                                           w e l l -f o u n d e d f e a r o f
           The Refugee Act of 1980, 94 Stat.               persecution on account of
102, brought into existence the current                    race, religion, nationality,
definition of “refugee” in the INA, see 8                  membership in a particular
U.S.C. § 1101(a)(42)(A). The Supreme                       social group, or political
Court has instructed that “[i]f one thing is               opinion. . . .
clear from the legislative history of the . .
. definition of ‘refugee,’ and indeed the           Id. “Refugee” is used in many sections of
entire 1980 [Refugee] Act, it is that one of        the INA. The provision under which
Congress’ primary purposes was to bring             Smriko was admitted, 8 U.S.C. §
U n i t e d States refugee law into                 1157(c)(1), authorizes the Attorney
conformance with the 1967 United Nations            General “in [his or her] discretion and
Protocol Relating to the Status of                  pursuant to such regulations as [he or she]
Refugees.” I.N.S. v. Cardoza-Fonseca,               may prescribe” to admit a limited number
480 U.S. 421, 436 (1987). Accordingly,              of “refugees” annually. Refugees admitted
Smriko insists that the definition of               under 8 U.S.C. § 1157, such as Smriko,
“refugee” found in the INA and the                  may then become lawful permanent
accompanying provisions for giving aliens           residents after one year pursuant to 8
“refugee status,” which we address below,           U.S.C. § 1159(a)–the key statutory
are to be construed as implementing the             provision at issue here. This section,
protections for refugees found in the               permitting refugees to obtain LPR status,
Convention.                                         speaks only of refugees who qualify being
                                                    “regarded as lawfully admitted to the
      Title 8, United States Code Section           United States for permanent residence
1101(a)(42)(A), defines a “refugee” as              [after one year],” id. § 1159(a)(2)
                                                    (emphasis added), and does not explicitly
       any person who is outside                    provide for the termination of refugee
       any country of such person’s                 status upon one being “regarded as” a
       nationality or, in the case of               lawful permanent resident. The absence of
       a p e r s o n h a v i n g no                 language terminating refugee status in §

                                                6
1159(a), Smriko contends, is consistent            refugee status of any alien . . . pursuant to
with the definition of refugee found in §          such regulations as the Attorney General
1101(a)(42)(A), which does not indicate            may prescribe if the Attorney General
any particular time when one ceases to be          determines that the alien was not in fact a
a refugee. Thus, Smriko argues, contrary           refugee . . . at the time of the alien’s
to the IJ’s suggestion, becoming an LPR            admission.”      Id.   The implementing
under the text of the statute provides only        regulations for that section further require
additional benefits for those with refugee         that the refugee be given “notice in
status and does not terminate refugee              writing” of the Government’s intent to
status, consistent with Congress’s intent to       “terminate the alien’s refugee status,”
implement the Protocol, which would                along with 30 days in which to prepare
require Smriko to maintain refugee status          evidence to be presented at a hearing to
until achieving protection equivalent to           show cause “why the alien’s refugee status
that of a United States national.                  should not be terminated.” 8 C.F.R. §
                                                   207.9.    Furthermore, the regulations
        Other immigration law, Smriko              indicate that “[u]pon termination of
suggests, also contemplates refugee status         refugee status[] the district director shall
persisting after lawful permanent resident         process the alien under [the INA’s
status is obtained. While, as discussed            provisions for removal].” Id. Thus,
above, a refugee may be “regarded as” a            Smriko argues, if the Government wishes
lawful permanent resident after one year,          to seek his removal under the INA, the
see 8 U.S.C. § 1159(a)(1), 8 C.F.R. §              statute and its implementing regulations
207.7 allows the family members of a               provide an explicit process for first
“refugee,” under some circumstances, to            removing his refugee status–a procedure
obtain derivative refugee status if they           not followed here–and then processing him
apply within two years of the principal            for removal. Had Congress sought to
refugee’s admission, thereby utilizing the         remove refugee status for aliens who
principle alien’s refugee status even after        become lawful permanent residents under
he or she received LPR status.                     § 1159(a)(1), it could have explicitly
                                                   provided for removing that status as it did
       Moreover, Congress and the                  in § 1157(c)(4). 4
Department of H omeland Secu rity
(through its implementing regulations)
have explicitly provided for a means of                      4
                                                              Smriko also urges that his
removing refugee status, consistent with
                                                   interpretation is supported by the BIA’s
the Protocol and apart from the IJ’s
                                                   decision in Matter of Medrano, 20 I. & N.
suggestion that refugee status is
                                                   Dec. 216 (BIA 1990). There, an alien had
“implicitly” forfeited upon becoming an
                                                   been granted lawful temporary resident
LPR. Under 8 U.S.C. § 1157(c)(4), the
                                                   status through the amnesty provisions of
Attorney General may terminate “[t]he
                                                   the Immigration Reform and Control Act

                                               7
        Smriko concedes that his proposed           Convention). He agrees that under the
construction of the INA would offer those           Convention, “[e]very refugee has duties to
with refugee status more protection than            the country in which he finds himself,
other lawful permanent residents, but               which require in particular that he conform
argues that this was Congress’s intent in           to its laws and regulations,” Convention,
i m pl em e nting the P roto c o l ( a nd           Art. II, but notes that the violation of any
                                                    criminal law is not, in and of itself,
                                                    grounds for terminating refugee status
                                                    under that agreement. While he is liable
of 1986, see 8 U.S.C. § 1255a, and then
                                                    for violating criminal laws in the same
was convicted of a crime that would
                                                    manner as a United States citizen would
ordinarily subject an alien to deportation.
                                                    be, he argues that Congress, in
At the time of the BIA’s decision in
                                                    implementing the Protocol, intentionally
Medrano, the implementing regulations
                                                    limited the grounds for cancelling refugee
providing for cancellation of temporary
                                                    status because it intended to give refugees
resident status under § 1255a, not unlike 8
                                                    heightened protection (as compared to
C.F.R. § 207.9 and its requirements for
                                                    other aliens) in light of the traumatic
removing refugee status, allowed for
                                                    conditions they have fled. Because he
cancellation where the Government
                                                    views § 1159(a)(2), allowing for those
provided notice of its intent to remove and
                                                    with refugee status to become “regarded
an opportunity to offer evidence in
                                                    as” lawful permanent residents, as not
opposition, 8 C.F.R. § 245a.2(u)(2). An IJ
                                                    terminating his refugee status, he suggests
determined that the Government would
                                                    that the Government could only have
have to terminate Medrano’s temporary
                                                    cancelled his refugee status under §
resident status through § 245a.2(u)(2) prior
                                                    1157(c)(4). In light of the Government not
to initiating deportation proceedings based
                                                    even having attempted to cancel his
upon his having committed a crime that
                                                    refugee status under § 1157(c)(4) or
would ordinarily otherwise subject an alien
                                                    having followed the procedure outlined
to deportation, and the BIA affirmed.
                                                    under 8 C.F.R. § 207.9 for doing so,
Citing Medrano, Smriko argues that the
                                                    Smriko argues that he has been improperly
procedures set forth at 8 C.F.R. § 207.9 for
                                                    subjected to removal proceedings.
removing refugee status must also be met
here before removal proceedings can be
                                                         B. The Government’s Response
initiated against him. Medrano, however,
is not particularly helpful here, as in front
                                                              The Government concedes that
of the BIA the Government there
                                                    “[t]he statutory definition of ‘refugee’ [in
“removed its opposition to the decision of
                                                    8 U.S.C. § 1101(a)(42)(A)] speaks in the
the immigration judge,” Medrano, 20 I. &
                                                    present tense [and] imposes no temporal
N. Dec. at 218, and the BIA accordingly
                                                    l i m it a t io n o n r e f u g e e s t a t u s . ”
saw “no reason to disturb the immigration
                                                    Respondent’s Brief at 15. Moreover, the
judge’s decision.” Id. at 218-19.

                                                8
Government does not appear to dispute          permanent resident status pursuant to §
that nothing in the INA expressly              1159(a)(2).
terminates refugee status once a refugee
achieves LPR status pursuant to 8 U.S.C.              First, the government looks to the
§ 1159(a)(2). Instead, the government          conference report from the Refugee Act of
argues that                                    1980. The conference report indicates that
                                               the Senate’s bill originally provided that,
      [i]n practice, however, all              absent emergency situations, refugees
      sources of domestic law,                 would be admitted as lawful permanent
      including the INA and its                residents (with there simply being no such
      support ing regu latio ns,               thing as refugee status), while an
      administrative and judicial              amendment in the House provided for “all
      case law, and the practices              refugees entering the United States [to] be
      of the INS, the Department               admitted conditionally as ‘refugees’ with
      of Homeland Security, and                retroactive adjustment of status to lawful
      the Executive Office for                 permanent residents after two years.” H.R.
      Immigration Review, reason               Conf. Rep. No. 96-781, at 21 (1980),
      that when a “refugee”                    reprinted in 1980 U.S.C.C.A.N. 160, 162.
      adjusts to “lawful permanent             The Committee of Conference adopted the
      resident” . . . status, he no            House Amendment, but “with adjustment
      longer is considered to be in            of status permitted after a period of one
      “ r e f u g e e ” s t a tu s f o r       year.” Id. The Government also looks to
      purposes of United States                a statement by Senator Edward Kennedy,
      immigration and nationality              the Senate bill’s chief sponsor, who
      law.        Rather, he either            indicated that
      maintains his LPR status
      and may subseq uentl y                          the Conferees compromised
      n a t u r a li z e to U .S .                    on the House version and
      citizenship, or possibly, may                   established a new ‘refugee’
      lose his LPR status and                         admission status–different
      become a deportable alien                       from either the present
      under [8 U.S.C. § 1227].                        ‘ c onditional entry’ or
                                                      ‘parolee’ status. This new
Respondent’s Brief at 15-16 (emphasis                 status will end after only
added). The Government then presents                  one year–rather than two
legislative history, INA provisions,                  ye ars–after w hich th e
implementing regulations, and two BIA                 refugee can adjust to
decisions that, it suggests, implicitly               permanent resident status.
contemplate the termination of refugee                This one year ‘refugee’
status once an alien receives lawful                  status would also be counted

                                           9
       towards the five-year period                         Finally, the Government looks to
       required for naturalization.                 two BIA decisions, neither of which
                                                    addresses Smriko’s argument that the
126 Cong. Rec. S3756-57 (daily ed. Feb.             INA’s protections for refugees, as drafted
26, 1980). Thus, the Government argues              by Congress in implementing the Protocol,
that “refugee status” was intended to be a          co-exist with lawful permanent resident
conditional status, and was intended to end         status and must be terminated prior to the
after one year.                                     initiation of removal proceedings. One
                                                    decision briefly suggests, without analysis,
        The Government further notes that           that once a refugee adjusts to LPR status,
8 U.S.C. § 1159(a) calls for, at the end of         the “former” status as a refugee does “not
one year, a refugee who has not yet                 provide a basis for terminating [removal]
“acquired” lawful permanent resident                proceedings.” In re Bahta, 22 I. & N. Dec.
status to be “returned to the custody of the        1381, n.2 (BIA 2000). The other suggests
Service for inspection and examination,”            that one in Smriko’s position–i.e., one who
id. § 1159(a), and processed “in                    has not had his refugee status terminated
accordance with” the removal provisions             (based on a determination that he was not
of the INA unless the alien is adjudged             a refugee at the time of his admission)
“admissible” at that time and can therefore         under INA § 207, 8 U.S.C. § 1157, and
be “regarded as lawfully admitted,” id. §           who has not been determined to be
1159(a)(2). Because § 1159(a) does not              inadmissible following his examination by
reference any special procedure for                 an immigration officer under INA §
terminating refugee status before removing          209(a)(1), 8 U.S.C. § 1159(a)(1),–is not
one not admissible at the end of the one            properly placed in exclusion proceedings.
year period, the Government argues that             Matter of Garcia, 19 I. & N. Dec. 407
this provision supports the view that               (BIA 1986). Neither decision addresses
refugee status is conditional and                   what the government terms to be Smriko’s
disappears for one who is admissible and            “novel,” Respondent’s Brief at 9,
does obtain LPR status.5                            argument–that the INA’s provisions
                                                    pertaining to “refugee status,” read in light

   5
    The Government also suggests that no
provision of the INA “confer[s] any                 aliens”)). Contrary to the Government’s
authority on an immigration judge to                suggestion, however, Smriko only argues
engage in the sort of termination process           that an IJ cannot conduct removal
proposed by Smriko before adjudicating a            proceedings until his refugee status has
lawful permanent resident’s removability            been terminated in accordance with the
from the United States.” Respondent’s               process set forth at 8 C.F.R. § 207.9, and
Brief at 17-18 (citing 8 U.S.C. § 1227(a)           does not argue that IJ’s must engage in any
(setting forth the classes of “deportable           special “termination process.”

                                               10
of Congress’s intent to implement the                       issue,” our role is to determine “whether
Protocol, provide extremely limited                         the agency’s answer is based on a
grounds for terminating his refugee status,                 permissible construction of the statute.”
none of which was met here.                                 Id. (internal quotation marks omitted).

                C. Discussion                                       Although the INA is ambiguous
                                                            with respect to Smriko’s challenge and
          “The first step in interpreting a                 Smriko has marshaled at least some
statute is to determine whether the                         legislative history in support of his
language at issue has a plain and                           proposed construction, we are without, in
unambiguous meaning with regard to the                      this case, an “agency answer” to examine
particular dispute in the case.” Ki Se Lee                  and potentially defer to.        The BIA
v. Ashcroft, 368 F.3d 218, 222 (3d Cir.                     answered Smriko’s “novel” challenge by
2004) (internal quotation marks omitted).                   assigning his case to a single member who
At issue here is whether Smriko, in                         affirmed without opinion the decision of
becoming “regarded as lawfully admitted                     the IJ, whose decision therefore became
to the United States for permanent                          the final agency determination pursuant to
residence,” 8 U.S.C. § 1159(a)(2), lost his                 the agency’s affirmance without opinion
refugee status. As we have indicated, §                     regula tions, see 8 C .F.R . §
1159(a)(2) does not unambiguously                           1003.1(e)(4)(ii).     Pursuant to those
describe what happens to an alien’s                         regulations, “[s]uch an order approves the
refugee status once he or she becomes                       result reached in the decision below[, but]
“regarded as” a lawful permanent resident.                  does not necessarily imply approval of all
Of course, “if the intent of Congress is                    of the reasoning of that decision,” id.
clear . . . the court, as well as the agency,
must give effect to the unambiguously                              In its entirety, the IJ’s response to
e x p r e s s ed i n t e n t o f C o n g r e s s . ”        Smriko’s proposed statutory construction
Coraggioso v. Ashcroft, 355 F.3d 730, 733                   consisted of the following:
(3d Cir. 2004) (quoting Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467                       [W]hile the motion for
U.S. 837, 842-43 (1984)) (internal                                 termination would have
quotation marks omitted). We are left                              been granted had th e
here, however, with Congressional intent                           respondent remained a
that is, at least to some degree, in conflict:                     refugee, the respondent
the goal of implementing the Protocol                              unfortunately in this case
versus, potentially, the desire to create a                        had adjusted his status to
“conditional” status for a single year. In                         that of a lawful permanent
such situations, where there is conflicting                        resident, pursuant to Section
legislative history and “the statute is silent                     209 of the [INA, 8 U.S.C. §
or ambiguous with respect to the specific                          1159].     The respondent

                                                       11
         voluntarily chose to adjust                        that where an “IJ offer[s] no reasoning and
         his status and certainly there                     cite[s] no authority . . . we have no basis
         are benefits and rewards in                        on which to conclude that the IJ’s reading
         acquiring the status of a                          and application of [a statute is]
         lawful permanent resident                          ‘reasonable’ and therefore entitled to
         and respondent has not                             deference under Chevron[].” Berishaj v.
         provided any precedent                             Ashcroft, 378 F.3d 314, 327 (3d Cir.
         decisions or any other legal                       2004). As in Berishaj, the IJ here offered
         basis for the proposition that                     no analysis of the relevant statutory
         a lawful permanent resident                        provisions or authority to which we may
         also retains the status of a                       defer. Thus, we are left to review an IJ’s
         refugee, pursuant to Section
         207 [of the INA, 8 U.S.C. §
         1157].
                                                            be the case.
                                                                     Where, as here, the BIA has
IJ’s Op. at 2. Even assuming arguendo
                                                            affirmed without opinion the decision of
that an IJ’s decision affirmed without
                                                            the IJ, under 8 C.F.R. § 1003.1(e)(4)(ii), its
opinion pursuant to the streamlining
                                                            affirmance “approves the result reached in
regulations would otherwise be entitled to
                                                            the decision below[, but] does not
Chevron deference,6 we recently explained
                                                            necessarily imply approval of all of the
                                                            reasoning of that decision,” id.          As
                                                            Aguirre-Aguirre determined that the BIA’s
     6
      The Supreme Court has determined                      case-by-case decision-making should be
that “the BIA should be accorded Chevron                    accorded Chevron deference, it would
deference as it gives ambiguous statutory                   seem to be, at the very least, an open
terms concrete meaning through a process                    question as to whether an IJ’s decision
o f c a s e - b y - c a s e a d j u d ic a t io n .”        affirmed through the streamlining process
Aguirre-Aguirre, 526 U.S. at 425                            would be entitled to Chevron deference.
(emphasis added; internal quotation marks                   Although the BIA has directed us to
omitted). Citing Aguirre-Aguirre, we                        review the IJ’s opinion in streamlined
recently stated in a dictum that “the BIA’s                 cases, deferring to the reasoning of an IJ
(and hence the IJ’s) interpretation of the                  from which the BIA would be free to
INA is subject to established principles of                 depart in other cases would seem highly
deference.” Coraggioso, 355 F.3d at 733                     problematic. We need not resolve this
(emphasis added).            Aguirre-Aguirre,               issue here, however, because the IJ, as
however, did not determine that the                         explained above, offered no analysis or
opinion of an IJ, when affirmed without                     precedent to which we could defer. We
opinion by the BIA’s streamlining process,                  ultimately decide to remand to the BIA
is entitled to Chevron deference, and it                    rather than the IJ because that course is
does not necessary follow that such would                   required by the regulations.

                                                       12
opinion that does not analyze the statutory         the number of cases having increased
interpretation issue at hand, with a single         exponentially in a little over a decade.”
BIA member having issued an affirmance              Dia, 353 F.3d at 235. The portion of those
without opinion that precluded the BIA              regulations describing the affirmance
from providing its interpretation of the            without opinion process employed here
statutory provision at issue, purportedly           provides that:
pursuant to the agency’s “streamlining
regulations,” which we will describe in                    (i) The Board member to
detail below.                                              whom a case is assigned
                                                           shall affirm the decision of
        Smriko raises an additional                        the Service or the
challenge, however, to the process by                      immigration judge, without
which his case arrived at the Court of                     opinion, if the Board
Appeals without having such an agency                      member determines that the
answer. While he recognizes that the BIA                   result reached in the
acted within its authority to promulgate the               decision under review was
streamlining regulations and did not, per                  correct; that any errors in
se, violate his Due Process rights by doing                the decision under review
so, see Dia, 353 F.3d at 236-43, he argues                 were       harmless      or
that the BIA erred in its application of the               nonmaterial; and that
streamlining regulations to his case. See
Berishaj, 378 F.3d at 331 (“Though the en                         (A)      The
banc Court in Dia approved the                                    issues on
streamlining regulations over a statutory                         appeal are
and Constitutional challenge, it does not                         squarely
follow that the regulations are not subject                       controlled by
to misuse and even abuse.”). He suggests                          e x istin g
that we may review the single Board                               Board       or
member’s application of the streamlining                          federal court
regulations, and that the Board member                            precedent and
erred here because, under those                                   d o      n o t
regulations, his case could not have                              involve the
possibly qualified for streamlining.                              application of
                                                                  precedent to a
                    V.                                            novel factual
                                                                  situation; or
       As we recently explained in Dia,
“[t]he Attorney General promulgated the                           (B)     The
streamlining regulations in 1999 when the                         factual and
Board was faced with a crushing caseload,                         legal issues

                                               13
             raised on                        that, under any standard of review, the
             appeal are not                   single BIA member assigned to his case
             so substantial                   erred in subjecting it to the affirmance
             that the case                    without opinion process described above
             warrants the                     because the IJ’s decision was not correct,
             issuance of a                    id. § 1003.1(e)(4)(i), her errors were not
             w r i t t e n                    harmless, id., his case was not “squarely
             opinion in the                   controlled” by existing Board or federal
             case.                            court precedent, id. § 1003.1(e)(4)(i)(A),
                                              and his case did not raise issues so
      (ii) If the Board member                insubstantial that a written opinion would
      determines that the decision            be unwarranted, id. § 1003.1(e)(4)(i)(B).
      should be affirmed without
      opinion, the Board shall                        The Government counters that
      issue an order that reads as            application of the above standards entails
      follows:       “The Board               a “complicated balancing of a number of
      affirms, without opinion, the           factors” only comprehensible to the single
      result of the decision below.           Board member, and contends that it is
      The decision below is,                  simply “not possible to devise an adequate
      therefore, the final agency             standard of review” for determining
      determination. See 8 CFR                whether there is precedent that “squarely
      1003.1(e)(4).”     An order             controls” the present case and whether the
      affirming without opinion,              issues raised are “not so substantial,”
      issued under authority of               especially so because the regulations
      this provision, shall not               require the single Board member issuing a
      include further explanation             streamlining order to provide no
      or reasoning. Such an order             reasoning, see id. § 1003.1(e)(4)(ii). We
      approves the result reached             first address the Administrative Procedure
      in the decision below; it               Act’s (“APA”) “basic presumption of
      does not necessarily imply              judicial review. . . .” Lincoln v. Vigil, 508
      approval of all of the                  U.S. 182, 190 (1993); see Calle-Vujiles v.
      reasoning of that decision,             Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003)
      but does signify the Board’s            (“there is a strong presumption that
      conclusion that any errors in           Congress intends judicial review of
      the decision o f the                    administrative action”). We then turn to
      immigration judge or the                the limited category of administrative
      Service were harmless or                decisions committed to agency discretion,
      nonmaterial.                            and determine whether a single Board
                                              member’s application of the streamlining
8 C.F.R. § 1003.1(e)(4). Smriko argues        regulations is such a decision.

                                         14
A. The Availability of Judicial Review                    Smriko contends that the single
                                                   Board member charged with applying the
        Under the APA, any “person                 streamlining regulations clearly failed to
suffering legal wrong because of agency            follow those regulations by subjecting his
action, or adversely affected or aggrieved         case to the affirmance without opinion
by agency action within the meaning of a           process without the regulatory criteria for
relevant statute, is entitled to judicial          doing so having been met. He insists that
review.” 5 U.S.C. § 702. Decisions of the          this erroneous application of the
BIA are agency actions within the meaning          regulations is judicially reviewable under
of the APA. 5 U.S.C. § 701(b)(1). The              the APA as interpreted by the Supreme
only exceptions to this general rule are           Court in I.N.S. v. Yueh-Shaio Yang, 519
situations in which “(1) statutes preclude         U.S. 26 (1996). The Court there held in
judicial review; or (2) agency action is           the context of a review of BIA action:
committed to agency discretion by law.” 5
U.S.C. § 701(a). Where the governing                      Though the agency’s
statute provides for “special statutory                   discretion is unfettered at
review ,” as does § 242 of the INA, 8                     the outset, if it announces
U.S.C. § 1252, that is the form that the                  and follows–by rule or by
required judicial review will take. 5                     settled           course     of
U.S.C. § 703.       Under the INA, in                     a d j u d i ca tion–a ge ne r a l
reviewing a final order of removal                        policy by which its exercise
pursuant to 8 U.S.C. § 1252, the Court of                 of discretion w ill be
Appeals may “review . . . all questions of                governed, an irrational
law and fact, including interpretation and                departure from that policy
application of constitutional and statutory               (as opposed to an avowed
provisions, arising from any action taken                 alteration of it) could
or proceeding brought to remove an alien                  constitute action that must
from the United States. . . .” Id. §                      be overturned as “arbitrary,
1252(b)(9) (emphasis added). Similarly,                   capricious, [or] an abuse of
Section 704 of the APA provides: “A                       discretion” with in the
preliminary, procedural, or intermediate                  meaning              of   the
agency action or ruling not directly                      Administrative Procedure
reviewable is subject to review on the                    Act, 5 U.S.C. § 706(2)(A).
review of the final agency action.” 5
U.S.C. § 704. Thus, our review of a final          Yueh-Shaio Yang, 519 U.S. at 32.
agency action, generally speaking,
encompasses all of a petitioner’s                         Based on Yueh-Shaio Yang and the
contentions of legal error by the agency at        APA, it seems clear that we have
any stage of the agency’s proceedings.             jurisdiction to review the here challenged
                                                   application of the streamlining regulations

                                              15
so long as the INA does not preclude that           Given that the INA clearly does not
judicial review and the issues so presented         preclude review, we now turn to whether
are not committed to agency discretion. 7           the relevant issues are committed to
                                                    agency discretion by law.

    7                                                B. Actions Committed to an Agency’s
     In Marcello v. Bonds, 349 U.S. 302,
                                                                  Discretion
309-10 (1955), the Supreme Court
determined that the hearing provisions of
                                                            Section “701(a)(2) [of the APA]
the APA do not apply to agency hearings
                                                    makes it clear that ‘review is not to be had’
conducted pursuant to the INA. See
                                                    in those rare circumstances where the
Ardestani v. I.N.S., 502 U.S. 129, 133-34
                                                    relevant [law] ‘is drawn so that a court
(1991) (“[In Marcello, we] held that the
                                                    would have no meaningful standard
INA expressly supersedes the hearing
                                                    against which to judge the agency’s
provisions of the APA in light of the
                                                    exercise of discretion.’” Lincoln, 508 U.S.
background of the 1952 immigration
                                                    at 190-91 (quoting Heckler v. Chaney, 470
legislation, its laborious adaptation of the
                                                    U.S. 821, 830 (1985)). The Government
[APA] to the deportation process, the
                                                    insists that the situation before us is one of
specific points at which deviations from
                                                    those “rare circumstances,” likening an
the [APA] were made, the recognition in
                                                    individual Board member’s decision on
the legislative history of this adaptive
                                                    whether to direct that a written merits
technique and of the particular deviations,
                                                    decision on an alien’s appeal be issued to
and the direction in the statute that the
                                                    the role of an agency accorded absolute
methods therein prescribed shall be the
                                                    discretion in determining whether to
sole and exclusive procedure for
                                                    institute enforcement proceedings, see
deportation proceedings.”) (internal
                                                    Heckler, 470 U.S. at 831 (“an agency’s
quotation marks omitted).           As the
                                                    decision not to prosecute or enforce,
government tac itly a cknow ledges,
                                                    whether through civil or criminal process,
however, “[a]lthough the detailed hearing
                                                    is a decision generally committed to an
procedures specified by the APA do not
                                                    agency’s absolute discretion”). Heckler
apply to hearings under the [INA], see
                                                    involved the Food and Dru g
Marcello[], the judicial review provisions
                                                    Administration’s (“FDA”) decision to
do, see Shaughnessy v. Pedreiro, 349 U.S.
                                                    refrain from instituting enforcement
48, 75 S.Ct. 591, 99 L.Ed. 868 (1955).”
                                                    proceedings with respect to drugs used in
I.N.S. v. Doherty, 502 U.S. 314, 330
                                                    administering lethal injections.          The
(1992) (Scalia, J., concurring and
                                                    Supreme Court determined that there was
dissenting). As Yueh-Shaio Yang holds,
                                                    “no law to apply” in the Federal Food,
the judicial review provisions of the APA,
5 U.S.C. § 706(2)(A), apply to decisions of
the BIA on issues not committed to agency
discretion. Yueh-Shaio Yang, 519 U.S. at            32.

                                               16
Drug, and Cosmetic Act against which a                      These criteria are clearly intended
court could review the FDA’s decision not           to require the single BIA member to
to bring enforcement proceedings. Id. at            determine whether the correct outcome
830-31.                                             was reached and, if so, whether a Board
                                                    opinion would have significant value in
        Under the streamlining regulations,         the context of an appeal of the matter or in
in contrast, in order to affirm without an          the context of other matters yet to be
opinion, several specific criteria must be          adjudicated. We agree with the Tenth
met: (1) the “result reached in the decision        Circuit Court of Appeals that “they have
under review [must be] correct;” (2) any            nothing to do with the BIA’s caseload or
“errors in the decision under review [must          other internal circumstances.” Batalova v.
be] harmless or nonmaterial; and (3) “(A)           Ashcroft, 355 F.3d 1246, 1253 (10th Cir.
[t]he issues on appeal [must be] squarely           2004); see also Denko v. I.N.S., 351 F.3d
controlled by existing Board or federal             717, 732 (6th Cir. 2003) (“the size of the
court precedent and . . . not involve the           BIA’s caseload–a factor which the Board
application of precedent to a novel factual         may be better equipped to assess–has no
situation” or “(B) [t]he factual and legal          relevance in deciding which cases are
issues raised on appeal [must be] not so            appropriate for summary affirmance”).
substantial that the case warrants the              Rather, these criteria present “the kinds of
issuance of a written opinion in the case.”         issues [courts] routinely consider in
8 C.F.R. § 1003.1(e)(4)(i). All three of            reviewing cases,” Batalova, 355 F.3d at
these criteria must be met in order for a           1253, and provide amply sufficient “law”
case properly to be streamlined.8                   for courts to apply. The fact that they may
                                                    require the exercise of some discretion on
                                                    the part of the single BIA member that
   8                                                may be deserving of some deference is, of
     Heckler also noted that at issue there
                                                    course, not relevant; the APA expressly
was the reviewability of an agency’s
                                                    authorizes review of the exercise of
refusal to exercise its powers, as opposed
                                                    discretion for abuse.
to where, as here, an agency has exercised
its coercive power over an individual. See
                                                           The government’s insistence that §
Heckler, 470 U.S. at 832 (“[W]e note that
                                                    1003.1(e)(4)(i) requires a single BIA
when an agency refuses to act it generally
                                                    member to assess the availability of
does not exercise its coercive power over
                                                    agency resources is based upon subsection
an individual’s liberty or property rights,
                                                    B and its reference to whether the “issues
and thus does not infringe upon areas that
                                                    raised upon appeal are not so substantial
courts often are called upon to protect.
                                                    that the case warrants the issuance of a
Similarly, when an agency does act to
enforce, that action itself provides a focus
for judicial review, inasmuch as the
agency must have exercised its power in             some manner.”) (emphasis in original).

                                               17
written opinion,” id. § 1003.1(e)(4)(i)(B).              will be assigned to a three member panel
However, this language focuses upon the                  for disposition. If the case is more
lack of importance of the issues, not                    significant than an (e)(4) case and less
backlog and the availability of resources to             significant than an (e)(6) case, the single
produce an opinion.               Moreover, the          BIA member will decide the merits of the
government’s argument ignores the fact                   appeal by himself and issue “a brief order,
that § 1003.1(e)(4)(i) is only one part of an            affirming, modifying or remanding” under
overall case management system that is                   § 1003.1(e)(5). In short, the regulations do
based solely on the correctness of the                   not call upon single BIA members to
result and the institutional value that an               evaluate the resources available at a
opinion would have. Under subsection                     particular time. Rather, the regulations
1003.1(e), a single BIA member who is                    themselves allocate whatever decision-
assigned a case “shall” do one of three                  making resources the agency has, calling
things. If the result is correct and the                 upon single BIA members to follow the
institutional value of an opinion would be               criteria contained in the regulations for
so low that the criteria of (e)(4) are met, he           allocating those resources.
must affirm without opinion. On the other
hand, if the case presents one of the                           Nor are we impressed with the
c i r c u m s ta n c e s e n u m e r a t e d in §        gove r n m e nt’ s sugg estion th at §
1003.1(e)(6), all relating to the
institutional value of an opinion,9 the case
                                                               immigration judge or the
                                                               Service that is not in
   9
       Subsection (e)(6) provides:                             conformity with the law or
         Panel Decisions. Cases may                            with applicable precedents;
         only be assigned for review                                      (iv) The need to
         by a three-member panel if                            r e s o lv e a c a s e or
         the case presents one of                              c o n t r o v e r s y of m ajo r
         these circumstances:                                  national import;
                   (i) The need to settle                                 (v)       The need to
         inconsistencies among the                             review a clearly erroneous
         r u li n g s o f di f f e r en t                      factual determination by an
         immigration judges;                                   immigration judge; or
                   (ii)   The need to                                     (vi) The need to
         establis h a p r e c e d e nt                         reverse the decision of an
         construing the meaning of                             immigration judge or the
         l a w s , r e g u l a t i o n s, o r                  Service, other than a
         procedures;                                           reversal              under    §
                   (iii) The need to                           1003.1(e)(5).
         review a decision by an                         8 C.F.R. § 1003.1(e)(6).

                                                    18
1003.1(e)(4)(ii) precludes a single BIA                standard against which to judge the
member from explaining his or her                      agency’s exercise of discretion.” Heckler,
decision to streamline and that this                   470 U.S. at 830.10
somehow deprives a reviewing court of
law to apply. First, reading this section in
context, we understand it to preclude any                 10
                                                            See Haoud v. Ashcroft, 350 F.3d 201,
explanation of the member’s reason for
                                                       206 (1st Cir. 2003) (“the Board’s own
affirming the IJ’s decision so that the IJ’s
                                                       regulation provides more than enough
decision will stand alone as the final
                                                       ‘law’ by which a court could review the
agency decision. We do not read it as
                                                       Board’s decision to streamline”); Denko,
precluding comment regarding the
                                                       351 F.3d 717 at 731 (“this argument for
decision to streamline, and there may be
                                                       committing this decision [to streamline] to
rare situations in which the member might
                                                       the agency’s discretion is doubtful because
find it helpful to file brief comments on
                                                       there are judicially manageable standards
this subject. More importantly, however,
                                                       available to a reviewing court”); Chen v.
the law to be applied is provided by the
                                                       Ashcroft, 378 F.3d 1081, 1086-87 (9th Cir.
criteria of the regulations, and it will be the
                                                       2004) (review ing “w hethe r either
rare case, indeed, where the reviewing
                                                       subsection” of the streamlining regulations
court, having received the administrative
                                                       applied to alien’s administrative appeal,
record and the briefs of the parties, will
                                                       a nd r e ma nding bec a use “ ne ith er
have any difficulty, without more, reaching
                                                       subsection (A) nor subsection (B) of the
a decision as to whether the member was
                                                       streamlining regulation permit[ted]
so wide of the mark in applying those
                                                       summary affirmance” where alien raised
criteria that his action can be characterized
                                                       “a novel legal and factual issue”);
as arbitrary and capricious.
                                                       Batalova, 355 F.3d at 1252-53 (10th Cir.
                                                       2004) (criteria in streamlining regulations
       We hold that the issues addressed
                                                       address “the kinds of issues we routinely
by single BIA members under §
                                                       consider in reviewing cases, and they have
1003.1(e)(4)(i) of the streamlining
                                                       nothing to do with the BIA’s caseload or
regulations are not committed to agency
                                                       other internal circumstances”). But see
discretion and that the resolutions of those
                                                       Ngure v. Ashcroft, 367 F.3d 975, 987 (8th
issues are judicially reviewable.
                                                       Cir. 2004) (concluding that “[l]ike other
                                                       decisions committed to agency discretion
    C. The Approach of Other Courts
                                                       by law, th e BIA ’s stream lining
                                                       determination involves a complicated
       All but one of the other Circuit
                                                       balancing of a number of factors which are
Courts that have addressed the issue have
                                                       peculiarly within its expertise, including
agreed or suggested that the affirmance
                                                       the size of the BIA’s caseload and the
without opinion regulations contain
                                                       limited resources available to the BIA”)
sufficient “law” to provide a “meaningful
                                                       (internal quotation marks and citations

                                                  19
        The Eighth Circuit in Ngure parted                  In support of this view, Ngure
company from the majority approach                  quoted from the D.C. Circuit’s decision in
largely based upon its interpretation of the        Pad ula .      The r e , f ac e d w ith a
“not substantial” third factor found in the         pronouncement from the Director of the
affirmance without opinion regulations.             Federal Bureau of Investigation (“FBI”)
Ngure determined that “[w]hether a                  regarding the FBI’s hiring policy with
particular case ‘warrants the issuance of a         respect to homosexuals and other letters
written opinion’ is necessarily a function          written by FBI personnel to law schools
of the BIA’s limited resources at a                 regarding that policy, the D.C. Circuit set
particular point in time, and the views of          forth the above maxim that these types of
members of the BIA as to whether those              “agency statements” would only be
limited resources should be dedicated to            “transformed into a binding norm if so
writing an opinion in a given case.”                intended by the agency.” Padula, 822
Ngure, 367 F.3d at 986. As we have                  F.2d at 100. While Padula understandably
indicated, we respectfully disagree with            looked to agency intent only to determine
this view.                                          whether an informal statement by an
                                                    agency constituted a “binding norm” such
        Ngure also gave considerable                that departure from that statement could
weight to the legal proposition that an “an         amount to arbitrary and capricious action,
agency pronouncement is transformed into            Ngure extended its use of agency intent to
a binding norm if so intended by the                also look at whether an agency intended
agency, and agency intent, in turn, is              for a formal regulation to be binding upon
ascertained by an examination of the                its officers. This use of agency “intent” in
statement’s language, the context, and any          promulgating regulations would seem to
available extrinsic evidence.” Ngure, 367           turn on its head the “basic presumption of
F.3d at 982 (quoting Padula v. Webster,             judicial review” embodied in the APA,
822 F.2d 97, 100 (D.C. Cir. 1987))                  Lincoln, 508 U .S. at 190, the maxim that
(internal quotation marks, citations, and           agency regulations “have the force of
alterations omitted; emphasis added). That          law,” Marshall v. Lansing, 839 F.2d 933,
is, Ngure suggested that whether an                 943 (3d Cir. 1988), and the requirement
agency intended for its own compliance              that “regulations validly prescribed by a
with its regulation to be judicially                government administrator are binding
reviewable is relevant to whether an                upon him as well as the citizen,” Service v.
agency’s action in applying that regulation         Dulles, 354 U.S. 363, 372 (1957). See
is committed to agency discretion under             Vitarelli v. Seaton, 359 U.S. 535, 539-40
the APA.                                            (1959) (applying Dulles); see also Webster
                                                    v. Doe, 486 U.S. 592, 602 n.7 (1988)
                                                    (“[an] Agency’s failure to follow its own
                                                    regulations can be challenged under the
                                                    APA”). If we routinely begin to look to an
omitted).

                                               20
agency’s intent (with respect to whether its         timely dispositions, but do not affect the
own compliance with its regulations                  validity of any decision issued by the
should be subject to judicial review) in             Board and do not, and shall not be
promulgating regulations, as Ngure would             interpreted to, create any substantive or
have us do, we may well find that agencies           procedural rights enforceable before any
never desire judicial review, and would              immigration judge or the Board, or in any
rather be left unchecked in the exercise of          court of law or equity.” 8 C.F.R. §
their powers.                                        1003.1(e)(8)(vi) (emphasis added). Thus,
                                                     the regulations specifically contemplate
       Contrary to Ngure’s suggestion, we            that the Board’s compliance with
do not read American Farm Lines v. Black             provisions establishing time limits for the
Ball Freight Service, 397 U.S. 532 (1970),           adjudication of appeals will not be subject
as abandoning the Supreme Court’s long-              to judicial review. No similar statement is
standing requirement–evidenced in Dulles,            made with respect to an individual Board
Vitarelli, and Webster–that an agency                member’s application of the affirmance
comply with its own regulations. We note,            without opinion regulations under 8 C.F.R.
however, that even assuming arguendo                 § 1003.1(e)(4), thus undermining the
that courts should look to an agency’s               notion that the agency did not “intend” for
“intent” to allow for judicial review in             judicial review of the affirmance without
promulgating a regulation, it is doubtful            opinion procedure.
that the agency here sought to preclude a
Board member’s application of the                     D. Review of the Decision To Affirm
streamlining regulations from judicial                         Without Opinion
review.      A careful review of the
streamlining regulations indicates that they                 Having concluded that the decision
specifically contemplate Board members               to streamline is judicially reviewable, the
being governed by the ag en cy’s                     correct disposition of the merits of the
regulations. See 8 C.F.R. § 1003.1(d)(1)(i)          petition to review is clear. The issue
(“The Board shall be governed by the                 Smriko presents is not “squarely controlled
provisions and limitations prescribed by             by existing Board or federal court
applic able law , regulations, a nd                  precedent.” Nor, we conclude, can that
procedures. . . .”). The regulations then            issue be disregarded as legall y
indicate that with respect to, for example,          insubstantial.     As the Government
one aspect of the case management system             acknow ledges, “Smirko’s [proposed
involving the time limits within which a             statutory constructions], if accepted as a
Board member is expected to adjudicate an            correct interpretation of the statutory
administrative appeal, “[t]he provisions [of         scheme, could upset final removal orders
the regulations] establishing time limits for        that have been entered against thousands
the adjudication of appeals reflect an               of criminal aliens . . . ,” as well as affect
internal management directive in favor of            the outcome of thousands of proceedings

                                                21
yet to come. Given this fact, together with         of substantial importance. It is foreseeable
the fact that Smriko’s argument is both             that there will be a number of situations
plausible and not directly contradicted by          like the one before us in which an arbitrary
statutory text, regulations, or relevant            and capricious decision to streamline will
precedent, we have no choice but to                 hold the potential for distorting the judicial
conclude that this decision to streamline           review that both the regulations and
was arbitrary and capricious.                       Congress contemplated. When that is the
                                                    case, a remand for further BIA
                    VI.                             proceedings is appropriate.

       In many situations where a petition                   In Haoud, for example, the First
for review challenges a streamlining                Circuit granted a petition for review
decision, that decision will have no                because the affirmance without opinion
material impact on a court’s exercise of its        process had been used “to deny [the
judicial review function. In most, it will          Court’s] legitimate review power [because
be readily apparent that the decision is not        the Court was] left without a proper basis
arbitrary or capricious. In many, the               to . . . evaluate the Board’s own critical
reviewing court may simply choose to                analysis,” Haoud, 350 F.3d at 205. Haoud
address the merits of the IJ’s decision             had presented to the Board a recent BIA
without resolving the procedu ral                   case that was seemingly indistinguishable
challenge.11 Nevertheless, we believe the           from his own wherein the IJ had reached a
decision we here make on reviewability is           contrary result, yet the Board affirmed the
                                                    IJ’s determination in his case without
                                                    opinion. The First Circuit remanded
  11                                                because the affirmance without opinion
     The Seventh Circuit Court of Appeals
                                                    prevented the BIA from “fully explain[ing
has suggested, correctly it would seem,
                                                    why it] reasonably depart[ed] from its own
that, with respect to many cases that are
                                                    precedent,” id. at 207, in violation of the
improperly streamlined, “it makes no
                                                    settled maxim that “[a]dministrative
practical difference whether the BIA
                                                    agencies must apply the same basic rules
properly or improperly streamlined
                                                    to all similarly situated supplicants,” id. at
review.” Georgis v. Ashcroft, 328 F.3d
                                                    207 (citation omitted).
962, 967 & n.4 (7th Cir. 2003); see also
Denko, 351 F.3d 717, 732 (6th Cir. 2003)
                                                            Similarly, the Fifth Circuit recently
(agreeing with the Seventh Circuit that
                                                    remanded a streamlined case to the BIA
“for many streamlined cases” it makes “no
                                                    where the IJ had suggested multiple
practical difference” whether the BIA
                                                    grounds for denying relief, one of which,
improperly streamlined review). If the IJ’s
                                                    if selected as the reason for affirmance by
decision is incorrect, the Court of Appeals
                                                    the BIA, would have denied an alien’s
can simply reach the merits of that
                                                    asylum application as untimely and would
decision and reverse.

                                               22
have prevented the Court of Appeals from            having provided its Chevron deference-
exercising jurisdiction. Zhu v. Ashcroft,           entitled “concrete meaning” to an
___ F.3d ___, ___, 2004 WL 1854553, *5-             ambiguous statute.12 The present case
*6 (5th Cir. Aug. 19, 2004). The Court              demonstrates that arbitrary and capricious
determined that the BIA’s use of the                application of the streamlining regulations
affirmance without opinion procedure                can result in building case law that is
under such circumstances created a                  fashioned without the benefit of agency
“jurisdictional conundrum” in that it               expertise.
prevented the Court from “knowing
whether the BIA affirmed the IJ’s decision                 Here, Smriko presented a plausible
on a non-reviewable basis, e.g.,                    reading of the INA to the Board, raising a
untimeliness, or a reviewable basis, e.g.,          substantial and important issue of refugee
the merits of Zhu’s asylum claim.” Id.              law. Despite the absence of precedent
The Court remanded so that the BIA could            “squarely controlling” Smriko’s argument,
indicate whether relief was denied based            Smriko’s case was erroneously affirmed
upon untimeliness (which would destroy              without opinion. That error then prevented
the court’s jurisdiction under an applicable        the Board from offering its expert opinion
statute) or on the merits of the asylum             on the novel statutory construction issue
application (which would allow the court            now before us. Rather than usurping the
to exercise jurisdiction and reach the              role of the BIA and establishing a
merits of the alien’s claim).                       precedent that the Board’s expertise might
                                                    counsel against, we now grant the petition
       Where, as here, an important                 for review in light of the streamlining
portion of the statutory scheme can be read         error. The Board’s decision will be
to produce materially different results,            vacated, and, given the “need to establish
proper application of the streamlining
regulations is essential. We are required
to “accord[] Chevron deference [to the                12
                                                        One might argue, we suppose, that the
BIA] as it gives ambiguous statutory terms
                                                    individual Board member’s decision to
‘concrete meaning through a process of
                                                    issue an affirmance without opinion was
case-by-case adjudicatio n.’”
                                                    an “implicit” rejection of Smriko’s
Aguirre-Aguirre, 526 U.S. at 425 (quoting
                                                    proposed statutory construction in favor of
Cardoza-Fonseca, 480 U.S. at 448-49). If,
                                                    another construction. However, the Board
as happened here, an individual Board
                                                    member’s decision to issue an affirmance
member arbitrarily and capriciously
                                                    without opinion, in and of itself, is not a
streamlines a case where no Board or
                                                    substitute for the kind of analysis of the
binding precedent accepts or rejects an
                                                    relevant statutes, regulations, or legislative
alien’s plausible interpretation of an
                                                    history, that would be required in order to
ambiguous statute, we are then left to
                                                    afford Chevron deference. See Berishaj,
interpret the statute without the BIA
                                                    378 F.3d at 327.

                                               23
a precedent construing the meaning of,” 8
C.F.R. § 1003.1(e)(6)(ii), the INA in this
context, we will remand the matter for
further proceedings before a three member
panel of the Board.

SMRIKO V. ASHCROFT - NO. 03-1085

LAY, Circuit Judge, concurring.
       I fully concur in Judge Stapleton’s
well-reasoned opinion. I write separately
to point out that I have participated in two
Eighth Circuit cases, i.e., Wolde v.
Ashcroft, 2004 WL 1759141 (8th Cir.
2004) (non-published), and Loulou v.
Ashcroft, 354 F.3d 706 (8th Cir. 2003),
which follow the Eighth Circuit’s opinion
of Ngure v. Ashcroft, 367 F.3d 975 (8th
Cir. 2004). In Ngure, the Eighth Circuit
has stated that the Board of Immigration
Appeals’ decision to issue an affirmance
without opinion was not subject to judicial
review. I believe that the analysis by
Judge Stapleton in the instant case is the
correct analysis and I write solely to
explain my reason for joining his opinion
rather than adhering to the opinion in
Ngure.




                                               24
