PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FERNANDO QUINTEROS-MENDOZA,
Petitioner,
v.
No. 07-1544
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
Argued: December 5, 2008
Decided: February 11, 2009
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Petition for review denied by published opinion. Judge Motz
wrote the opinion, in which Judge Michael and Judge King
joined.
COUNSEL
ARGUED: Jason Alexander Dzubow, MENSAH, SHOE-
MAKER & DZUBOW, P.L.L.C., Washington, D.C., for Peti-
tioner. Eric Warren Marsteller, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney
2 QUINTEROS-MENDOZA v. HOLDER
General, M. Jocelyn Lopez Wright, Assistant Director, Mar-
garet Perry, Senior Litigation Counsel, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litiga-
tion, Washington, D.C., for Respondent.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
An Immigration Judge (IJ) denied Fernando Quinteros-
Mendoza asylum and withholding of removal. In a brief writ-
ten opinion, a single member of the Board of Immigration
Appeals (BIA) affirmed. Quinteros-Mendoza petitions for
review, asserting that the BIA erred in refusing to refer his
case to a three-member panel and that the single member who
did review his case erred in denying him relief. Although we
disagree with the Government’s contention that we lack juris-
diction to review the BIA’s refusal to refer a case to a three-
member panel, the BIA’s subsequent precedential decision
has eliminated the need for such three-judge review in the
case at hand. Moreover, because the BIA’s decision in this
case accords with its subsequent precedential decision, we
deny the petition for review.
I.
In April 2004, a gang known as The Maras began targeting
Quinteros-Mendoza in El Salvador. The first incident
occurred when three gang members attacked and beat him
after he took his girlfriend home. This harassment continued
on a regular basis, between three to five times per week. In
each instance, the gang members sought to extort money from
Quinteros-Mendoza.
After a number of attacks at various locations, the gang
members confronted Quinteros-Mendoza three times at a Sev-
QUINTEROS-MENDOZA v. HOLDER 3
enth Day Adventist Church in El Salvador, which Quinteros-
Mendoza had attended regularly since 1987. The gang
demanded money but also threatened to hurt Quinteros-
Mendoza if he continued to attend church. Sometime after the
third attack at his church, Quinteros-Mendoza capitulated and
ceased attending services. The violence and threats did not
stop. Although Quinteros-Mendoza called the police on many
occasions throughout this ordeal, their response was uni-
formly ineffectual.
In the face of this harassment, Quinteros-Mendoza fled to
the United States and in September 2004 entered without
authorization. When the government placed him in removal
proceedings, he filed for asylum, alleging that the gang mem-
bers had persecuted him based on his religion and political
opinion and that they would kill him if he returned to El Sal-
vador. Family members confirmed continuing threats against
his life.
The IJ found Quinteros-Mendoza’s testimony credible and
sufficiently corroborated. She further found that the level of
harm he feared constituted persecution and that his fear of
persecution upon return to El Salvador was well founded.
Applying the recently enacted REAL ID Act of 2005, Pub. L.
No. 109-13, § 101(a)(3), 119 Stat. 302, 303 (codified at 8
U.S.C. § 1158(b)(1)(B)(i) (2006)), the IJ nonetheless denied
asylum and withholding of removal because she found that
neither religion nor political opinion was a "central reason"
for the persecution.
In a brief opinion pursuant to BIA "streamlining" regula-
tions, see 8 C.F.R. § 1003.1(e)(5)–(6) (2008), a single mem-
ber of the BIA affirmed, concurring that Quinteros-
Mendoza’s religion was not "at least one central reason" for
the persecution. In this appeal, Quinteros-Mendoza argues
that the BIA erred (1) in failing to refer his case to a three-
member panel, and (2) in its interpretation and application of
the REAL ID Act’s "one central reason" standard.
4 QUINTEROS-MENDOZA v. HOLDER
II.
At the time the BIA reviewed Quinteros-Mendoza’s claim,
a three-member panel had not interpreted the "one central rea-
son" provision of the REAL ID Act of 2005. Quinteros-
Mendoza argues that the BIA violated its own regulations by
refusing to refer his case to such a panel in order "to establish
a precedent" construing that part of the REAL ID Act. 8
C.F.R. § 1003.1(e)(6)(ii) (2008). The Government sharply
disagrees, contending that Congress has foreclosed judicial
review of BIA "streamlining" decisions. Alternatively, the
Government argues that the BIA’s subsequent interpretation
of this provision moots the need for three-member review in
this case.
A.
We first address whether Congress has foreclosed our
review of BIA streamlining decisions. Although the BIA has
broad discretion to enact appropriate administrative regula-
tions, like the streamlining provisions at issue here, see
Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278–83 (4th
Cir. 2004), that broad discretion does not shield the BIA’s
implementation and execution of those regulations from judi-
cial review.1 Indeed, we recently exercised precisely this juris-
1
Thus, we emphasize that we do not question the agency’s power to for-
mulate these streamlining regulations, a question we addressed in Blanco
de Belbruno, and an area in which the Supreme Court has severely cir-
cumscribed our review. See Vt. Yankee Nuclear Power Corp. v. Natural
Res. Def. Council, Inc., 435 U.S. 519, 523–25 (1978). Instead, the ques-
tion before us is whether we can review the agency’s adherence to its own
validly enacted procedures. See, e.g., Morton v. Ruiz, 415 U.S. 199,
235–36 (1974) ("Where the rights of individuals are affected, it is incum-
bent upon agencies to follow their own procedures."); United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 266–68 (1954); United States v.
Morgan, 193 F.3d 252, 266–67 (4th Cir. 1999); 32 Charles H. Koch, Jr.,
Federal Practice and Procedure § 8165, at 182–83 (2006) (distinguishing
between agency formulation of procedural rules, which generally is com-
mitted to agency discretion, and agency compliance with those rules,
about which courts are "very careful").
QUINTEROS-MENDOZA v. HOLDER 5
diction. See Li Fang Lin v. Mukasey, 517 F.3d 685, 693–94
(4th Cir. 2008). There we noted that the "BIA [had] yet to
provide a published, precedential opinion" (i.e., one issued by
a three-member panel) addressing a particular legal question.
Id. at 693. To avoid "violating fundamental separation-of-
powers principles," in Li Fang Lin, we remanded the case to
the BIA with instructions to have a three-person panel resolve
that question. Id. at 694. Of course, if we lacked jurisdiction
to review the BIA’s initial decision to assign the case to a
one-member panel, we would be powerless to order such a
remand.
In Li Fang Lin we did not, however, explain our rationale
for finding jurisdiction. We think it is worthwhile to do so
now, in light of the division in the circuits on this question.
Compare Purveegiin v. Gonzales, 448 F.3d 684, 691–92 (3d
Cir. 2006) (finding jurisdiction to review BIA streamlining
decisions), Chong Shin Chen v. Ashcroft, 378 F.3d 1081,
1087–88 (9th Cir. 2004) (same), and Batalova v. Ashcroft,
355 F.3d 1246, 1252–53 (10th Cir. 2004) (same), with
Guyadin v. Gonzales, 449 F.3d 465, 469–70 (2d Cir. 2006)
(finding no jurisdiction over such decisions), and Bropleh v.
Gonzales, 428 F.3d 772, 779 (8th Cir. 2005) (same).
Our disposition in Li Fang Lin reflects the strong presump-
tion favoring judicial review of agency action. Bowen v. Mich.
Acad. of Family Physicians, 476 U.S. 667, 670 (1986). Con-
gress may overcome this strong presumption in two limited
ways: through an express jurisdiction-stripping provision, see
5 U.S.C. § 701(a)(1) (2006), or by committing agency action
"to agency discretion by law," see id. § 701(a)(2). No express
jurisdiction-stripping provision applies here; the Government
contends, however, that Congress has implicitly stripped us of
jurisdiction by committing streamlining decisions to agency
discretion.
The Supreme Court has drawn the "committed to agency
discretion" exception extremely narrowly, applying it only "in
6 QUINTEROS-MENDOZA v. HOLDER
those rare circumstances where the relevant statute ‘is drawn
so that a court would have no meaningful standard against
which to judge the agency’s exercise of discretion.’" Lincoln
v. Vigil, 508 U.S. 182, 191 (1993) (quoting Heckler v.
Chaney, 470 U.S. 821, 830 (1985)). Here, no statute evinces
clear and convincing congressional intent to commit BIA
streamlining decisions to that agency’s discretion by law. See
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63–64 (1993)
(requiring a statute to evince clear and convincing evidence
that Congress meant to foreclose review). Instead, Congress
merely has given the agency the power to enact appropriate
administrative regulations, mandating that the Secretary of
Homeland Security "shall establish such regulations; . . . issue
such instructions; and perform such other acts as he deems
necessary for carrying out his authority under the provisions
of [the immigration laws]." 8 U.S.C. § 1103(a)(3) (2006).
Moreover, contrary to the Government’s contention, the
agency’s own regulations do not provide the BIA with the
claimed unreviewable discretion. The regulations do state that
the BIA "may only" refer a case to a three-member panel if
one of six factors is present. 8 C.F.R. § 1003.1(e)(6) (2008).2
But the regulations also prescribe that "[u]nless a case meets
the standards for assignment to a three-member panel under
[§ 1003.1(e)(6)], all cases shall be assigned to a single Board
member for disposition." Id. § 1003.1(e) (emphasis added).
This certainly suggests that if a case does meet the standard
for adjudication by a three-member panel, a single member
shall not decide it. See Purveegiin, 448 F.3d at 689. The regu-
lations further direct a Board member to decide a case
referred to him "unless the Board member designates the case
for decision by a three-member panel" because it squarely
2
Of course, this use of "may" does not in and of itself establish unlim-
ited, and so unreviewable, agency discretion. See Zadvydas v. Davis, 533
U.S. 678, 697 (2001) ("[W]hile ‘may’ suggests discretion, it does not nec-
essarily suggest unlimited discretion.").
QUINTEROS-MENDOZA v. HOLDER 7
implicates one of the six § 1003.1(e)(6) factors. 8 C.F.R.
§ 1003.1(e)(5) (emphasis added).3
Moreover, the six factors found in § 1003.1(e)(6) are not
cast in such discretionary terms as to preclude meaningful
review of them. See Batalova, 355 F.3d at 1253 (noting that
the six factors "are the kinds of issues we routinely consider
in reviewing cases, and they have nothing to do with the
BIA’s caseload or other internal circumstances"). For
instance, under the abuse of discretion standard, we regularly
review the presence or absence of "clearly erroneous factual
determination[s]," 8 C.F.R. § 1003.1(e)(6)(v) (2008). See,
e.g., Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261
(4th Cir. 1999). Likewise, it lies within our purview to review
whether an immigration judge’s decision was "in conformity
with the law or with applicable precedents." 8 C.F.R.
§ 1003.1(e)(6)(iii) (2008). And, as we found in Li Fang Lin,
517 F.3d at 693–94, we can readily review whether there
exists a "need to establish a precedent construing the meaning
of laws, regulations, or procedures." 8 C.F.R.
§ 1003.1(e)(6)(ii) (2008).4
3
The Government notes that the Department of Justice has proposed a
new regulation that clarifies the agency’s position that streamlining deci-
sions are not subject to judicial review. See Board of Immigration
Appeals: Affirmance Without Opinion, Referral for Panel Review, and
Publication of Decisions as Precedents, 73 Fed. Reg. 34,654, 34,663 (pro-
posed June 18, 2008) (to be codified at 8 C.F.R. § 1003.1(e)(9)) (mandat-
ing that the provisions in § 1003.1(e)(5)–(6) "do not . . . create any
substantive or procedural rights enforceable before any immigration judge
or the Board, or any court"). Although the comment period for this pro-
posed rule has closed, id. at 34,654, it has not become a final rule. Thus,
it has no bearing on our inquiry here. Moreover, that the agency saw the
need to propose this regulation only reinforces our conclusion that the
present statutory and regulatory scheme does not evince a clear and con-
vincing intent to foreclose judicial review.
4
The Second Circuit has found review of these types of streamlining
decisions precluded because Courts of Appeals allegedly "lack the exper-
tise necessary" to measure the BIA’s streamlining decision against these
six factors. Kambolli v. Gonzales, 449 F.3d 454, 464 (2d Cir. 2006). This
8 QUINTEROS-MENDOZA v. HOLDER
In most cases, we review the merits of the BIA’s final
order, with no need to address the process by which the BIA
issued that order. See Batalova, 355 F.3d at 1253 n.8. The
BIA intended the streamlining procedures to enhance admin-
istrative efficiency without prejudicing applicants with meri-
torious appeals. Nonetheless, as the agency itself recognizes,
three-member panel review can provide important procedural
benefits. Board of Immigration Appeals: Procedural Reforms
To Improve Case Management, 67 Fed. Reg. 54,878,
54,887–88 (Aug. 26, 2002); see also Purveegiin, 448 F.3d at
690–91; Smriko v. Ashcroft, 387 F.3d 279, 296–97 (3d Cir.
2004). Thus, in certain circumstances, our review of the
BIA’s final order must include a review of the procedures by
which the BIA obtained that result.
Were we to find Congress’s simple grant of regulatory
authority, see 8 U.S.C. § 1103(a)(3) (2006), sufficient to pro-
vide the BIA boundless and unreviewable discretion, we
would effectively shield any BIA administrative regulation
from our review based solely on that agency’s say so. This
argument proves too much. We thus hold that we do have
jurisdiction to decide whether the BIA’s decision to stream-
line a case under 8 C.F.R. § 1003.1(e)(5)–(6) (2008) was "ar-
bitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A) (2006).
B.
Although we find that a BIA streamlining decision is sub-
ject to judicial review, that holding does not yield the result
Quinteros-Mendoza seeks. For, as the Government alterna-
tively contends, the BIA’s subsequent action moots the need
may be true at a very high level of generality, but we accommodate
agency expertise through judicial restraint and appropriate deference to
agency decisions, not by entirely foreclosing judicial review of those deci-
sions.
QUINTEROS-MENDOZA v. HOLDER 9
to remand Quinteros-Mendoza’s case to a three-member
panel. In In re J-B-N-, 24 I. & N. Dec. 208 (2007), the BIA
did refer to a three-person panel the precise issue raised by
Quinteros-Mendoza—the proper interpretation of "one central
reason" in 8 U.S.C. § 1158(b)(1)(B)(i) (2006). Because that
three-person panel "establish[ed] a precedent" on this ques-
tion, there is no longer a need for referral to a three-member
panel in the case at hand. We therefore agree with the Gov-
ernment’s contention and find this issue to be moot as applied
to Quinteros-Mendoza.
III.
We turn next to the merits of the BIA’s final order in this
case. In order to gain the relief Quinteros-Mendoza requests
here, he must show that his persecution was "on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(A) (2006). Quinteros-Mendoza does not contend
that his religion or political opinion constituted the sole
motives for his persecutors’ actions. To the contrary, he
admits that the gang members’ initial motivation for attacking
him was either financial or personal. This thus constitutes a
"mixed motive" case, in which a statutorily protected ground
comprises only part of the persecution.
In response to differing standards applied to such mixed
motive cases, Congress included in the REAL ID Act of 2005
a provision that required a protected ground in
§ 1101(a)(42)(A) to be "at least one central reason for perse-
cuting the applicant." Id. § 1158(b)(1)(B)(i) (emphasis
added). In In re J-B-N-, the BIA interpreted this provision to
mean that "the protected ground cannot play a minor role in
the alien’s past mistreatment or fears of future mistreatment.
That is, it cannot be incidental, tangential, superficial, or sub-
ordinate to another reason for harm. Rather, it must be a cen-
tral reason for persecuting the respondent." 24 I. & N. Dec.
at 214. The Board also emphasized that the REAL ID Act did
10 QUINTEROS-MENDOZA v. HOLDER
not "radically alter[ ]" the standard in mixed motive cases like
Quinteros-Mendoza’s. Id. Thus, the BIA did not hold that the
REAL ID Act requires a protected ground to be the central
reason or even a dominant central reason for persecution, only
that it cannot be an "incidental, tangential, superficial, or sub-
ordinate" reason. Id.
As both the IJ and the BIA noted, the record in this case
indicates that money and personal animosity, and not religion
or political opinion, motivated the initial assaults on
Quinteros-Mendoza. Although attacks did occur at Quinteros-
Mendoza’s church, the record supports the BIA’s findings
that the gang members attacked him in numerous other
locations—including on the bus, at his home, and in a neigh-
boring town—and that the gang members demanded money
throughout these encounters. The BIA also relied on ample
evidence in concluding that the threats and attacks continued
even after Quinteros-Mendoza ceased attending church and
that the gang members targeted no other members of that
church. Thus, Quinteros-Mendoza has provided no evidence
that his religious or political beliefs were more than incidental
or tangential to any part of the persecution he suffered.
In sum, the record lends adequate support for the findings
of the IJ and the BIA that neither religion nor political opinion
initiated, escalated, perpetuated, or otherwise constituted a
central reason for the persecution against Quinteros-Mendoza.
We therefore deny the petition for review.
PETITION FOR REVIEW DENIED