Gerardo Bibiano Falcon Carriche Theresa v. De Falcon Carriche and Christina Pamela Falcon Bibiano v. John Ashcroft, Attorney General
Docket: 02-71143
Court: Court of Appeals for the Ninth Circuit; November 24, 2003; Federal Appellate Court
The case involves Gerardo Bibiano Falcon Carriche and others petitioning against John Ashcroft, the Attorney General, regarding a decision by the Board of Immigration Appeals (BIA). The Ninth Circuit Court of Appeals reviewed the BIA's streamlining procedures, which allow a single BIA member to affirm an Immigration Judge's (IJ) decision without a full three-judge review, effectively making the IJ's ruling final without additional commentary.
Key points include:
1. The Court amended its majority opinion filed on July 14, 2003, altering section headings and reordering paragraphs for clarity.
2. The Court concluded that the BIA did not violate the Carriches' due process rights by streamlining their appeal.
3. It expressed lack of jurisdiction to review the streamlining decision while noting that it does not endorse the use of such procedures for hardship cases in cancellation of removal.
4. The petition for panel rehearing was denied, as was the request for rehearing en banc, with no judges calling for a vote on the latter.
This case marks a significant instance in the Ninth Circuit regarding the application and implications of BIA's streamlining procedures.
Gerardo Bibiano Falcon Carriche and Theresa Vianna De Falcon Carriche (the Carriches) are appealing the Immigration and Naturalization Service's (INS) denial of their cancellation of removal request. They argue that their U.S. citizen daughter would experience "exceptional and extremely unusual hardship" if they were removed to Mexico, citing potential difficulties with the educational system and economic conditions affecting their ability to provide for her basic needs. The Immigration Judge (IJ) rejected this claim, finding that the hardships presented were not exceptional or unusual, a decision subsequently affirmed by the Board of Immigration Appeals (BIA).
The Carriches assert that the BIA's use of streamlining procedures violated their Fifth Amendment due process rights and that such procedures should not apply to discretionary hardship determinations in cancellation of removal cases. However, the court aligns with other circuit decisions, stating that streamlining does not infringe on due process rights. Additionally, the court determined it lacks jurisdiction to review the decision to streamline the Carriches' case, as it pertains to a discretionary hardship determination.
The streamlining procedures were implemented by the INS in response to a significant increase in caseload, from fewer than 3,000 new appeals in 1984 to over 28,000 by 1998, now exceeding 34,000. The BIA aimed to enhance fairness in adjudicating appeals by limiting the use of three-judge panels to cases with a reasonable possibility of reversible error. Under the streamlining regulation, a single BIA member may affirm an IJ's decision without opinion if the outcome is correct, any errors are harmless, and the issues are controlled by existing precedent or are insubstantial.
When a BIA member streamlines a case, the Board issues a form order affirming the lower decision without opinion, indicating that the IJ's ruling becomes the final agency determination for appellate review. This process does not imply the BIA's endorsement of the IJ's conclusions but suggests that any errors are considered harmless. The Carriches challenge the constitutionality of this streamlining procedure, arguing it violates their due process rights under the Fifth Amendment, despite acknowledging statutory limitations on judicial review. Their concerns include a lack of transparency, the increasing invocation of streamlining, and the speed of appeals, leading to fears that the BIA may be neglecting its appellate duties.
However, the court aligns with four other circuits in concluding that streamlining does not infringe on due process rights. The First Circuit's reasoning, which asserts that potential difficulties in appellate review without understanding BIA's basis do not constitute a due process violation, is particularly persuasive. The Carriches had a full IJ hearing, a detailed decision, and the opportunity to appeal to the BIA, which met statutory requirements. They mistakenly demand additional review by three BIA members; the law does not support this claim, nor does it require more than what was provided. The Constitution does not guarantee any administrative appeal, and the streamlining regulation does not limit the right to review by the court of appeals. Ultimately, it is concluded that the due process clause is not violated by a single BIA member's decision on an appeal.
The BIA's affirmation of an IJ's decision without issuing a separate opinion does not constitute a due process violation. When a case is streamlined, the IJ's decision becomes the final agency action per 8 C.F.R. 3.1(a)(7)(iii), allowing direct review of the IJ's decision by the BIA. This process does not hinder a comprehensive assessment of the petitioner's case or infringe on their due process rights. Unless the BIA opts for a three-judge review, the IJ's decision effectively serves as the BIA's decision, mirroring established practices where the BIA adopts IJ opinions without independent reasoning if the IJ's rationale is adequate.
The BIA may affirm the IJ's decision simply by referencing the IJ's reasons, although it assumes the risk of reversal on appeal if the IJ's reasoning is flawed and the BIA fails to provide a correct affirming ground. A due process analysis under Mathews v. Eldridge does not alter this conclusion. The Mathews test evaluates the private interest at stake, the risk of erroneous deprivation, and the government's interests. While the Carriches have a significant interest in remaining in the U.S., the risk of erroneous deprivation and the government's administrative interests favor the current procedures. The Carriches have not shown substantial risk of incorrect outcomes or necessity for additional procedural safeguards, as existing regulations provide a reasoned decision from the IJ and options for BIA reconsideration. Additionally, the government's interest in managing its caseload effectively justifies the streamlining process, which has successfully reduced the BIA's backlog and increased case dispositions significantly.
The Carriches argue that streamlining should not apply to cancellation of removal cases due to their discretionary nature, asserting that determining "exceptional and extremely unusual hardship" is a fact-intensive inquiry unique to each case, making summary adjudication arbitrary and a violation of due process. They reference the regulation (8 C.F.R. 3.1(a)(7)(ii)(A)), which allows streamlining only when a case does not involve novel factual situations. However, the court finds that not all cases are inherently novel; many may fall within established legal patterns. The Board of Immigration Appeals (BIA) is deemed not to have violated the Carriches' due process rights by streamlining their appeal.
In their regulatory challenge, the Carriches maintain that every appeal presents a "novel fact situation," which they argue is a reviewable, non-discretionary factor. The government counters that the decision to streamline is committed to agency discretion and thus unreviewable under the Administrative Procedures Act (APA). While the court agrees with the government’s conclusion regarding the lack of reviewability, it distinguishes that some aspects of the streamlining decision are non-discretionary and typically reviewable. However, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) significantly limits the court's jurisdiction over discretionary decisions in cancellation of removal cases, including the determination of "exceptional and extremely unusual hardship," which remains outside the scope of judicial review.
In cases where appellate jurisdiction is applicable, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) mandates that all legal and factual questions regarding the removal of an alien must be included in a single petition for review. This requirement is grounded in 8 U.S.C. § 1252(b)(9) and was previously supported by the Supreme Court's interpretation in INS v. Chadha, which allowed challenges to all elements affecting the validity of a final order. The decision to streamline a case grants the Immigration Judge's (IJ) ruling the status of a final agency decision, meaning that any review of the streamlining in the Carriches' case would also involve reviewing the final denial of cancellation of removal as per 8 C.F.R. § 3.1(a)(7).
However, the nature of the streamlining process complicates review, making it impractical and unnecessary in certain circumstances. The Board of Immigration Appeals (BIA) evaluates the merits of the IJ’s decision to determine correctness, novelty of facts, and harmless errors when considering streamlining. To assess whether the streamlining was appropriately applied, an examination of the IJ's decision merits would be necessary, which the appellate court lacks jurisdiction to undertake, particularly regarding the discretionary "exceptional and extremely unusual hardship" standard.
The Carriches argue against the application of streamlining in their case, highlighting the unique nature of each cancellation of removal case, but this reasoning does not establish a valid basis for review. The court acknowledges its lack of jurisdiction to evaluate the streamlining decision, though it does not prohibit the BIA from applying streamlining in hardship cases. The court distinguishes the Carriches' situation from others where it would have jurisdiction to review merits, such as non-discretionary cancellation of removal or asylum cases, where the IJ's decision could be scrutinized as a final agency decision. Ultimately, the decision to streamline becomes intertwined with the merits of the case, rendering additional review unnecessary.
Errors identified in an immigration judge's (IJ) decision may lead to granting relief or remanding to the Board of Immigration Appeals (BIA) for further action consistent with the appellate court's decision. Any errors made by the IJ are the responsibility of the BIA, which bears the risk of reversal based on reasons not aligned with its actual rationale. If the appellate court can address the merits of the IJ's or BIA's decisions, reviewing the streamlining process is unnecessary. In many instances, including this case, whether the BIA correctly streamlined the review does not materially affect the outcome. The court concludes it lacks jurisdiction to review the BIA's streamlining of the Carriches' appeal regarding the 'exceptional and extremely unusual hardship' factor, resulting in the dismissal of the regulatory aspect of their petition. Consequently, part of the petition is denied while another part is dismissed. The Carriches' case was governed by regulations established in 1999, which aimed to enhance the BIA's decision-making efficiency and reduce its backlog. While structural concerns regarding the streamlining regulations were raised by an amicus curiae, those issues were not part of the current case. The court notes that appeals based solely on arguments from amici are generally not considered.
In addressing streamlining regulations, most circuits, apart from the Eleventh Circuit, have only considered these regulations in relation to asylum and withholding of deportation petitions, where judicial review remains permissible under IIRIRA. In these cases, the issues of streamlining and merits overlap, indicating that jurisdictional decisions do not impede merits review. The Eleventh Circuit's case, Gonzalez-Oropeza, similarly discussed streamlining without analyzing jurisdiction, concluding that the BIA acted correctly in streamlining the appeal.
The "concurring dissent" argues that jurisdiction is retained because the Carriches’ appeal questions the appropriateness of streamlining based on "novel" issues not covered by BIA precedent. However, this framing does not circumvent the jurisdictional bar, as it still necessitates a merits analysis. Determining if the streamlining regulations were rightly applied requires examining BIA precedent on exceptional hardship, a decision Congress has restricted to the BIA.
Furthermore, the appeal's streamlining does not restore jurisdiction removed by statute. The Carriches reference cases suggesting the BIA must clarify its hardship determinations, but these cases predate IIRIRA's jurisdiction limitations and are thus not applicable. While the court can review non-discretionary IJ decisions, it cannot review discretionary decisions in cancellation proceedings, leading to a potential conflict where both types of issues are presented but the BIA's streamlining obscures its reasoning, preventing judicial review. For instance, if an IJ denies a cancellation petition based on hardship, and the BIA streamlines the case without providing reasons, the IJ's decision stands unreviewable, as the underlying hardship determination is discretionary.
Petitioners may encounter jurisdictional default in the court of appeals if new, legitimate arguments are presented to the Board of Immigration Appeals (BIA) and result in an "Affirmed without Opinion" decision. This document does not address such scenarios, focusing instead on the "exceptional and extremely unusual hardship" factor previously in dispute. Circuit Judge T.G. Nelson expresses disagreement with the majority's view that jurisdiction to review the BIA's streamlining decision is lacking, asserting that the streamlining criteria are non-discretionary and thus subject to review under established precedent. Nelson concurs with the majority's outcome of denying the petition but contends that it should be denied entirely on the merits rather than partially dismissed for lack of jurisdiction. He agrees that streamlining procedures do not violate due process but emphasizes the importance of jurisdiction by highlighting that a BIA member may only streamline a case if specific, mandatory criteria are met, including correctness of the Immigration Judge's (IJ) decision and the harmlessness of any errors. The majority's misunderstanding of jurisdiction hinges on incorrectly viewing the criteria as discretionary rather than mandatory, thereby neglecting essential principles of statutory construction relevant to immigration statutes. The mandatory streamlining criteria include the correctness of the IJ's decision, harmless errors, and the insignificance of issues presented.
When a BIA member assesses whether an error is harmless, the process is purely an application of law to facts, devoid of discretion. Similarly, determining if precedent applies does not involve discretion. Generally, the streamlining criteria are non-discretionary, allowing for jurisdiction retention, except for the first criterion. This first criterion may involve discretion when evaluating whether a result was correct, especially if an immigration judge (IJ) denied relief based on discretionary grounds. If an alien disagrees with the IJ's discretionary decision and claims it was incorrect, the BIA lacks jurisdiction to review the streamlining decision based on that disagreement.
However, if the alien argues that a non-discretionary determination by the IJ was erroneous, the BIA's evaluation of the first criterion is non-discretionary, allowing for jurisdiction. The majority's attempt to apply a narrow exception to the Carriches' case is flawed, as the third criterion remains non-discretionary. The court need only determine if BIA precedent applies to the petitioners' situation; if it does, the case concludes there. If not, the case does not meet the third criterion, necessitating a remand to the BIA for further clarification on the hardship standard. The court's ruling that BIA precedent does not control does not address the merits of hardship but indicates that the BIA must adhere to its regulations. On remand, the BIA retains the discretion to find either that the petitioners did not demonstrate sufficient hardship or that they did. Additionally, the streamlining regulation's language and decisions from other circuits affirm jurisdiction to review the streamlining decision.
The majority fails to cite any court that has determined it lacks jurisdiction to review streamlining decisions, as no such precedent exists. Both the Seventh and Eleventh Circuits have successfully evaluated claims of improper streamlining. While it's acknowledged that some streamlining claims may not warrant further review if errors in the Immigration Judge's (IJ) decision can be addressed, the discretion to choose which error to evaluate does not relate to jurisdiction. The choice between two equally significant claims from the same final order is a matter of judicial discretion. The Seventh Circuit in Georgis v. Ashcroft suggests that remanding a case to the Board of Immigration Appeals (BIA) due to improper streamlining may be more beneficial than addressing an alternative error.
The BIA is permitted to streamline cancellation of removal cases, and in this instance, it has done so appropriately. The Carriches argue that cancellation of removal cases inherently involve unique factual scenarios that precedent cannot govern. However, the conclusion is that while these cases are fact-intensive, they do not always present legally novel issues and can often be guided by existing precedent. Thus, the BIA is justified in applying its streamlining procedures in such cases. The dissenting opinion contends that the plain language of the streamlining criteria supports the conclusion that jurisdiction to review the BIA's decision exists.
The dissent also addresses the risks of erroneous deprivation linked to the interplay between streamlining regulations and jurisdiction-stripping rules from the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). While acknowledging these risks, the dissent concludes that other mitigating factors outweigh them. A significant concern is that the BIA’s procedures obscure the rationale behind its decisions, leading to scenarios where an IJ's ruling could be affirmed without a clear basis, as exemplified by a hypothetical situation where an IJ denies relief on both discretionary and non-discretionary grounds. If the BIA streamlines the case without disclosing its reasoning, the court may be unable to adequately review the decision.
No basis exists to affirm the Immigration Judge's (IJ) decision due to the Board of Immigration Appeals' (BIA) rejection of ground B and the rejection of ground A by the reviewing authority. Two options are available: either erroneously affirm the IJ's decision by presuming the BIA did not reject ground B, or remand the case to the BIA to allow it to reconsider the IJ's discretionary decision. The preferred course is to remand, as the BIA has the authority to adopt or reject the IJ's decision. The complexity of the streamlining regulations complicates the assessment of harmless errors, but two mitigating factors reduce associated risks: the harmless error analysis itself and the BIA’s practices for correcting errors. The streamlining regulations and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) significantly affect judicial review of immigration appeals, delineating between discretionary and non-discretionary claims. IIRIRA limits judicial review over discretionary decisions made by the INS but does not eliminate review over non-discretionary decisions. The BIA’s actions are governed by formal procedural rules, indicating they are quasi-judicial rather than purely discretionary.
The alien argues that the Immigration Judge's (IJ) discretionary error was not harmless, which is relevant under 8 U.S.C. 1229b(b)(1). The framing of this issue is contested by the majority, but the author believes it is necessary based on the streamlining regulations outlined in 8 C.F.R. 3.1(a)(7)(ii) and the Carriches' claim that their case did not meet the required criteria. The author asserts that determining if precedent applies does not require re-evaluating the hardship determination's merits and criticizes the majority’s analysis for conflating the third criterion with the first, which pertains to the correctness of the merits. The author emphasizes that if the Department of Justice intended to permit streamlining based on outcomes, it would have explicitly stated so, which it did not. The majority's reasoning is further criticized for disregarding the non-discretionary nature of the streamlining criteria, as established in prior cases such as Romero-Torres v. Ashcroft, which clarified the jurisdiction over discretionary decisions like "exceptional and extremely unusual hardship." Other referenced cases confirm that streamlining was appropriate and that constitutional claims regarding improper streamlining were not substantiated. The author concludes that the majority's reliance on case law exemplifies a misunderstanding of the discretionary versus non-discretionary distinction inherent in the streamlining process.
In Flores-Leon v. INS, the court declined to address claims regarding the BIA's summary dismissal of the petitioner's appeal, stating it had already examined and dismissed all claims the petitioner believed were overlooked. The court referenced ICC v. Bhd. of Locomotive Eng'rs, which established that an agency's discretion in denying a motion to reconsider is not subject to judicial review when no standards apply, allowing the court to review the original order instead. The case of In re Monreal-Aguinaga, where the BIA found petitioners failed to demonstrate exceptional hardship despite long U.S. residency and family connections, serves as a controlling precedent. The court noted that although there were differences between Monreal-Aguinaga and the current case, they were either insignificant or unfavorable to the petitioners. It emphasized that lower living standards or adverse conditions in Mexico could only be considered if they impacted a qualifying relative and were generally insufficient alone to establish hardship. The record indicated that while finding employment in Mexico might be challenging for Mr. Falcon Carriche, it did not demonstrate an inability to work, and thus was deemed insufficient to warrant relief under the more lenient hardship standard.
