Tuesday, July 15, 2003
Page 3
Ninth Circuit Rejects Challenge to Streamlining Immigration Appeals
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday joined four other circuits in rejecting a due process challenge to streamlined procedures for reviewing immigration appeals.
The procedures, adopted in 1999, allow a single member of the Board of Immigration Appeals-rather than a three-member panel-to affirm a decision by an immigration judge under certain circumstances. In streamlined appeals the BIA does not issue a written decision, but only a form order under which the immigration judge’s decision becomes the final agency action.
Due process challenges to the streamlining rules had previously been rejected by the First, Fifth, Seventh and 11th Circuits.
Judge M. Margaret McKeown said that since the final agency action remained subject to judicial review, the streamlining rules preserved the due process rights of litigants under the Fifth Amendment.
McKeown said the court was “not unsympathetic” to the claims before it.
She explained:
“Alien petitioners...have understandable concerns about the streamlining process, particularly in light of the congressional limitations on federal court review....Their misgivings center around the lack of transparency in the process, the increasing frequency in which the process is invoked, the speed with which appeals are decided, and a belief that the BIA may be abdicating its statutorily mandated role of appellate review.”
But the judge said she and her colleagues were persuaded by the “careful reasoning” of the First Circuit’s decision earlier this year in Albathani v. INS, 318 F.3d 365—the first decision to confront the issue.
“As the First Circuit held,” she declared, “any difficulty engendered by the court of appeals reviewing a ‘BIA decision without knowing its basis’ does ‘not render the scheme a violation of due process or render judicial review impossible. Nor does the scheme violate any statute.’”
McKeown said Gerardo Bibiano Falcon Carriche and Theresa V. De Falcon Carriche received a “full hearing” and a “detailed and reasoned opinion” from the immigration judge who rejected their argument that they qualified for cancellation of removal because their daughter—a U.S. citizen—would suffer “exceptional and extremely unusual hardship” if they were deported to Mexico.
She observed:
“Although they were afforded a hearing and a reasoned decision from the INS, the Carriches argue that they were entitled to an additional procedural safeguard-namely, review of their appeal before three members of the BIA. Their assertion that ‘it takes at least three board members to identify, shape and determine important issues’ in every appeal finds no support in the law.”
The streamlining procedures, McKeown said, “do not compromise our ability to review the INS’s decision, to the extent we have jurisdiction to do so, because we can review the IJ’s decision directly.” She described the new process as “similar to the BIA’s already-familiar practice” of adopting an immigration judge’s opinion without writing its own.
McKeown said the court lacked any authority to examine whether the Carriche’s case had been properly identified for streamlining. That determination, she said, depended on an underlying exercise of discretion by the immigration judge that insulated from judicial review by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
“Because we lack jurisdiction to review the merits of the IJ’s discretionary decision regarding the ‘exceptional and extremely unusual hardship’ requirement—the only aspect of the cancellation of removal decision at issue in the Carriches’ case—we are also without jurisdiction to evaluate whether streamlining was appropriate.”
Judge Barry G. Silverman concurred, but Judge Thomas G. Nelson dissented from the jurisdictional portion of the court’s decision.
Nelson said he would have ruled the case was appropriately streamlined. Under the rules, he noted, a BIA member “may streamline a case if the IJ’s decision was correct, any errors were harmless, and either precedent controls the issue and the issue does not involve a novel factual situation or the issues are insubstantial.”
These criteria are generally non-discretionary and subject to review, Nelson argued.
The dissenting judge conceded that streamlining decisions are unreviewable to the extent they depend on determining the correctness of an underlying exercise of discretion by an immigration judge which has been made unreviewable by the IIRIRA. But he noted that correctness is only one of the criteria in the streamlining analysis.
“Contrary to the majority’s assertion, we need not reach the merits of the hardship decision,” Nelson wrote. “We need only ask if the BIA’s precedent covers the petitioners’ situation. If precedent controls, the case is over.”
Nelson added that none of the other circuits that have considered streamlining have identified jurisdictional problems in reviewing streamlining decisions.
Susan Hill of Hill & Piibe in Los Angeles, who represented the Carriches, told the MetNews she is considering asking for en banc review.
The case is Falcon Carriche v. Ashcroft, 02-71143.
Copyright 2003, Metropolitan News Company