United States Court of Appeals
For the First Circuit
No. 02-1541
MARWAN YOUSSEF ALBATHANI,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Farris,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Ronald L. Abramson, with whom Abramson, Bailinson & O'Leary,
P.C., was on the brief for petitioner.
Beth Werlin, with whom Mary A. Kenney, Nadine K. Wettstein,
Iris Gomez, Harvey Kaplan, and Kaplan, Sullivan & Friedman were on
the brief for American Immigration Law Foundation, amicus curiae.
John C. Cunningham, Senior Litigation Counsel, Office of
Immigration Litigation, with whom Robert D. McCallum, Jr.,
Assistant Attorney General, Linda S. Wendtland, Assistant Director,
and Terri J. Scadron, Senior Litigation Counsel, were on the brief
for respondent.
February 6, 2003
*
Of the Ninth Circuit, sitting by designation.
LYNCH, Circuit Judge. Marwan Youssef Albathani, a native
and citizen of Lebanon, petitions for review of the Board of
Immigration Appeal's (BIA's) summary affirmance of an Immigration
Judge's denial of his application for asylum, withholding of
deportation, and relief under the United Nations Convention Against
Torture. His case raises a challenge, new for this court, to the
validity of the BIA's streamlining procedures adopted in 1999. 8
C.F.R. § 3.1(a)(7)(2002)(amended by 67 Fed. Reg. 54,878 (Aug. 26,
2002)).
Albathani, a Maronite Christian, sought asylum on the
basis that he feared persecution by members of Hezbollah active in
Lebanon. He arrived in the United States in January 1999 without
any valid documents permitting entry. He was taken into custody by
the INS and had an initial interview and a subsequent credible fear
interview; he was found to have a credible fear of persecution. He
was allowed to remain in the United States pending a hearing on his
asylum and other claims. At the hearing in September 2000, the
Immigration Judge (IJ) found Albathani's story not credible and
denied his application. Her finding was affirmed by the BIA in a
summary affirmance under 8 C.F.R. § 3.1(a)(7).
Albathani challenges this ruling on several grounds: both
that his hearing before the IJ denied him due process of law, for
several reasons, and that the summary affirmance procedure itself
violates due process. Additionally, an amici curiae brief filed by
-2-
the American Immigration Law Foundation, the New England Chapter of
the American Immigration Lawyers Association, and the Massachusetts
Law Reform Institute argues that the summary affirmance procedure
also violates rules of administrative law.1 We affirm.
I.
From the 1940s to the 1970s, political power has been
shared in Lebanon between members of different religious
communities. The president is traditionally a Maronite Christian,
while the prime minister is traditionally a Sunni Muslim.
Lebanon's Parliament is also divided on a system of proportional
representation based on religion. This compromise broke down in
the 1970s, however. Between 1975 and 1990, Lebanon was wracked by
conflict, both between Lebanese Christians and Muslims, and among
foreign forces. According to the State Department, non-Lebanese
military forces control much of the country. See Malek v. INS, 198
F.3d 1016, 1018 (7th Cir. 2000). A variety of militias are
associated with different groups in Lebanon, both foreign and
domestic. The conflict between two of those militias is pertinent
here: the Lebanese Forces, a rightist, Christian militia, and
Hezbollah, an Islamicist militia with foreign support.
The Lebanese Forces was affiliated with the Christian
Phalangist militia, a Maronite group which had fought against
1
We express our appreciation to amici for their valuable
assistance.
-3-
Muslim nationalists in 1975, touching off Lebanon's civil war.
The Lebanese Forces was founded in 1976. In 1991, it was licensed
as a political party, but in 1994 it was banned and a number of
members were arrested because of alleged involvement in the bombing
of a church. The leader of the Lebanese Forces, Samir Geagea, was
also arrested and charged with the murder of a political rival. In
1995, Geagea was found guilty and sentenced to death, although the
sentence was commuted to life imprisonment. Subsequently, Geagea
was charged with the 1987 assassination of Muslim Prime Minister
Rashid Karami. Other members of the Lebanese Forces were convicted
of a 1996 bus bombing in Syria which killed eleven people.
Hezbollah, meanwhile, is a Shia Muslim political group
backed by Iran. It became prominent in the mid-1980s in battles
against Israeli forces in southern Lebanon. In Lebanon, Hezbollah
operates in the Bekaa Valley, the southern suburbs of Beirut, and
southern Lebanon. It is known or suspected to have been involved
in terrorist attacks including the truck bombings of the U.S.
Embassy and marine barracks in Beirut in October 1983. See U.S.
Dep't of State, Background Information on Foreign Terrorist
Organizations (Oct. 8, 1999), available at http:/www.state.gov/
www/global/terrorism/fto_info_1999.html. On November 2, 2001,
Hezbollah was added to the list of terrorists and groups linked to
terrorism covered by Executive Order No. 13,224, 66 Fed. Reg.
49,079 (Sept. 23, 2001), which blocked access to their assets. See
-4-
U.S. Dep't of State, Comprehensive List of Terrorists and Groups
Identified Under Executive Order 13224, available at http:
www.state.gov/s/ct/rls/fs/2001/6531.htm.
Marwan Albathani, a Maronite Christian, was born in
Lebanon on November 15, 1973, and grew up in the midst of this
conflict. Members of his family were involved in the Lebanese
Forces, including an older brother, who was a captain of the
Lebanese Forces in the Dikwane district of Beirut. Albathani lived
in Beirut, as did some of his sisters and brothers. His father and
other sisters lived in Deir El-Ahmar, approximately two hours to
the east of Beirut. Other of his relatives lived in the United
States. Albathani sometimes worked in Beirut, sometimes not; when
he worked it was as either a car mechanic or a car dealer.
Albathani asserted that after persecution by members of Hezbollah
he decided to flee Lebanon.
Albathani traveled to Cyprus in November 1998, where he
applied for a tourist visa to the United States but did not seek
refugee status. On his application, Albathani claimed that he was
married, that he worked as an electrician, that he had no relatives
in the United States, and that he had no intention of working or
studying in the United States (all untrue). Albathani's visa
application was denied. Albathani then returned to Cyprus in
January 1999, with a visa to Panama, purchased a plane ticket to
-5-
Panama by way of London and Miami, and got off in Miami on January
14. He was immediately taken into custody by INS officers.
A. Initial INS Interview
That day an INS officer with a translator interviewed
Albathani. Albathani said he was "escaping from Lebanon because of
the Hezbollah," which was harassing him because he was not Muslim.
He said that he was a car salesman, and that both his mother and
brother resided legally in the United States. Albathani admitted
that he had no intention of going to Panama and wanted to stay in
the United States. Based on this initial interview, the INS
officer scheduled a further credible fear interview.
B. Credible Fear Interview
During his credible fear interview on January 27, 1999,
three different interpreters were required before one was found who
could understand Albathani's difficult accent. Albathani told the
interviewing INS officer that he had served as a "regular soldier"
in the Lebanese Forces for five years. His problems began in the
mid-1990s; at that time whenever he visited his family in Deir El-
Ahmar he was stopped and questioned by members of Hezbollah. On
one occasion, three months before he left Lebanon, according to
Albathani, he was stopped for four hours. He and his brother were
tied up, Albathani was slapped in the face, they were placed in the
trunk of a car, and robbed of $1,200 and some jewelry. Albathani
attributed this to Hezbollah knowledge that he was a member of the
-6-
Lebanese Forces. He said that he was arrested "several times," but
could not provide a specific number. He had to leave Lebanon
because he feared being kidnapped by Hezbollah members.
Based on this interview, Albathani was found to have a
credible fear of prosecution based on membership in a particular
social group, namely the Lebanese Forces. The officer found that
he was credible, that his testimony was "detailed, internally
consistent, consistent [with] country conditions and any other
extrinsic evidence," and that there was a "significant possibility
that he ... could establish eligibility for asylum." Albathani was
subsequently allowed to move from Miami to New Hampshire, where his
family was located.2
C. Asylum Hearing
Albathani had submitted an application for asylum on
October 14, 1999, in Miami. He admitted his illegal entry and
conceded deportability. His application for asylum described two
assaults by Hezbollah. In the first, in April 1996, he claimed he
was stopped, interrogated, jailed in the town of Vaibalk, beaten
and left by a roadside. He said he was then picked up and taken to
a hospital, where he remained in a coma for over two weeks. In the
second, more than two years later, he asserted he was again stopped
2
Once in the United States, Albathani was arrested twice,
once for using someone else's credit card (although he claimed to
be merely trying to return it), and once for selling alcohol to a
minor.
-7-
and beaten, robbed of his car and money, and his life was
threatened. Albathani said that this assault took place in
December 1998, although in both his credible fear interview and the
subsequent hearing before the IJ he dated it earlier, in either
September or October 1998. No mention is made of a later threat.
Albathani also described his work in the Lebanese Forces in greater
detail, alleging that he had been a member since 1989, that he
worked as a secretary from 1989 to 1992, and that from 1992 to 1998
he served as bodyguard for the group's leader. Albathani sought
asylum, withholding of removal, and relief under the United Nations
Convention Against Torture.
Albathani's asylum hearing took place in Boston, after he
was granted a change of venue from Miami. In the hearing before
the IJ on September 28, 2000, Albathani had one interpreter; the IJ
expressed concerns that the interpreter had not brought an Arabic
dictionary and had engaged in numerous colloquies with Albathani.
Albathani was the only witness.
Albathani testified about two beatings on the road to his
parents' house which were sketched out in his asylum application.
We summarize what he said. The Lebanese Forces had ceased to
participate as a political party as of 1995, and "had fallen
apart," prior to both incidents. The area around his parents'
house was controlled by Hezbollah. Hezbollah had a list of names
of those who had served in the Lebanese Forces. In 1996, when
-8-
driving alone, Albathani was stopped by individuals he recognized
as Hezbollah because of distinctive flags on their cars. They
asked for his ID, took all his belongings, blindfolded him and hit
him. Albathani lost consciousness during the beating and woke up
in a hospital. Albathani reported this to the police, who declined
to get involved with Hezbollah-related incidents. When asked if he
had a copy of the police report, the interpreter reported his reply
as, "No, he wasn't worried about the problem, [w]hen they told me
that they can't help me when it comes to Hezbollah."
In the next two years, there were no further incidents.
That was because Albathani was so afraid he did not go out. When
questioned on this point he replied he did not mean he was afraid
to go out, or to leave the house in Beirut, but he did not dare
drive to see his parents. He did, however, travel to Syria and
return to Lebanon sometime in the fall of 1998, shortly before the
second beating. As to the 1998 incident, Albathani testified to
the following. In September or October 1998, Albathani was
travelling with his younger brother and a friend to his parents'
house when they were stopped at a Hezbollah roadblock. Albathani
was again asked for his ID, his belongings were taken, and he was
beaten on his head and hands. Hezbollah asked him how long he had
been with the Lebanese Forces. Afraid, he denied he had ever been.
As he was being beaten, his captors told him "say that you were in
the Lebanese Forces, otherwise you die." Albathani was again left
-9-
unconscious, and woke up in a hospital. His younger brother was
blindfolded, but not beaten or robbed.
On both occasions, Albathani's cars -- both Mercedes --
were stolen by Hezbollah. He had scars on his back, hands and head
as a result of the two beatings. The IJ suggested that photographs
of them should be submitted so it would be in the record, but
declined to make a closer firsthand examination of the scars. The
record shows the IJ had a clear view of petitioner during the
hearing.
In December 1998, members of the Hezbollah went to
Albathani's sister's house and told her "if he stays over here he
should consider death for himself. The first time he was able to
run away, but now it's going to be death for him." Shortly
thereafter, he looked for help to leave Lebanon. The message
triggered his flight to the United States in January 1999.
During the period of the incidents, Albathani left
Lebanon twice: once to Syria for two days, and once to Cyprus for
two days. He returned to Lebanon each time. While in Cyprus in
November 1998, he filled out a visa application, which contained
falsehoods. During the hearing before the IJ, he explained the
falsehoods by saying that someone else, possibly his brother,
filled out the application; he just signed it.
The IJ rendered an oral decision the same day as the
hearing. She rejected Albathani's claim for relief under the
-10-
Convention Against Torture because he had not shown injury at the
hands of the government. She also rejected Albathani's application
for asylum and withholding of deportation. The IJ found
Albathani's testimony not credible, noted that he ran into
difficulty with Hezbollah only when he drove the road to his
parents' house, credited that he had been robbed but observed that
his brother (who was with him during the incident) was neither
harmed nor robbed, and commented that Albathani had returned to
Lebanon from Cyprus after the incidents.
The IJ found Albathani's testimony not credible for a
number of reasons. The details of the incidents varied from
telling to telling, and there were internal contradictions in his
account. For example, he claimed at the asylum hearing to be
unconscious after the 1998 beating, but said in the earlier
interview that he and his brother had been slapped and their money
taken, they were forced into the trunk of a car, and driven to a
"dark place" and left. Not only did he not mention being
unconscious, he even described the place he was confined.
Moreover, in the later account, Albathani said that his brother was
unharmed, not placed in the trunk of a car, and did not have
anything stolen from him. The IJ concluded that this, and other
inconsistencies, were material differences that made Albathani a
"less than credible witness."
-11-
The IJ also noted that Albathani had not produced
corroborative evidence in the form of testimony by relatives who
were in the United States. His mother lived in Boston and recently
had become an American citizen, but, for whatever reason, had left
the country two weeks before the scheduled hearing before the IJ.
She might have confirmed his testimony that she was at his hospital
bedside after the 1998 incident. He also had an uncle in Boston
and his brother and cousin lived in the United States, none of whom
testified on his behalf.
The IJ cited Albathani's abuse of immigration procedures,
both in filling out the application for a tourist visa
fraudulently, and in not filing for admission to the United States
as a refugee from persecution at the United States Embassy in
Cyprus. See generally 8 U.S.C. § 1158 (2000)(describing normal
asylum procedures).
The IJ also questioned whether the attacks were motivated
by political reasons, noting that Albathani was robbed on both
occasions, and deprived of not one but two Mercedes. He also lost
a large amount of money -- $1,200 by his own account in one
incident -- and gold jewelry. She concluded, "At least one of the
motives of the person stopping the car clearly appears to be
robbery."
Finally, the IJ surmised that Albathani could have
avoided further incidents by relocation, either by leaving Lebanon,
-12-
or by changing his behavior. She cited Albathani's visits to Syria
and Cyprus as evidence of his ability to avoid persecution without
seeking asylum in the United States. She concluded that
Albathani's "goal was to come to the United States," not to avoid
persecution. The IJ also focused on the fact that both incidents
took place in a single location -- the road between Beirut and Deir
El-Ahmar. She suggested that Albathani could have avoided the
problem in Lebanon by seeking alternative routes or means of
transportation to his parents' home.
In sum, the IJ concluded that Albathani had not shown a
credible fear of persecution on one of the statutory grounds for
asylum. Because he failed to meet the test for asylum, he could
not meet the more stringent test for withholding of removal. He
also was not entitled to relief under Article 3 of the Convention
Against Torture as he had not shown he had been tortured at the
hands of the government.3 The IJ ordered him deported from the
United States. Albathani appealed the IJ's decision to the BIA on
October 28, 2000. On April 9, 2002, utilizing the summary
3
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented in the United States by the Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231 (2000)). Article 3
prohibits states from returning individuals to other states where
there are substantial grounds for believing they would be subject
to torture.
-13-
affirmance procedure, the BIA affirmed without opinion the results
of the IJ's decision.
II.
Petitioner characterizes his challenge of the IJ/BIA
decision as being on due process grounds. He does not directly
raise a claim that the decision is not supported by substantial
evidence, but asserts instead that the decision improperly
overlooked evidence, that the judge improperly hurried the hearing
along, and that she berated the interpreter. The first ground is,
in our view, just a variation on a substantial evidence challenge,
and so we apply the usual substantial evidence standard. See,
e.g., Mediouni v. INS, 314 F.3d 24, 26 (1st Cir. 2002); Cordero-
Trejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994). Determinations of
eligibility for asylum or withholding deportation are conclusive
"if supported by reasonable, substantial, and probative evidence on
the record considered as a whole." INS v. Elias-Zacharias, 502
U.S. 478, 481 (1992)(internal quotation omitted).
"To reverse the BIA finding we must find that the
evidence not only supports that conclusion, but compels it." Id.
at 481 n.1; see also 8 U.S.C. § 1252 (b)(4)(B)(2000)("[T]he
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary."); Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.
1999) (no reversal unless "the record evidence would compel a
-14-
reasonable factfinder to make a contrary determination"). Merely
identifying alternative findings that could be supported by
substantial evidence is insufficient to supplant the BIA's
findings. See Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992).
The INS is not entitled to extreme deference, although
our review is deferential. Gailius v. INS, 147 F.3d 34, 44 (1st
Cir. 1998). Review of the BIA's decisions is conducted on the
basis of the entire record, not merely the evidence that supports
the BIA's conclusions. Id. Additionally, this "court reviews the
BIA's legal conclusions de novo, although it gives deference, where
appropriate, to the agency's interpretation of the underlying
statute in accordance with administrative law principles." Debab
v. INS, 163 F.3d 21, 24 (1st Cir. 1998) (internal quotation
omitted).
Because the "more likely than not" standard for
withholding deportation is more stringent than that for asylum, a
petitioner unable to satisfy the asylum standard fails, a fortiori,
to satisfy the former. Mediouni, 314 F.3d at 27. "[W]ithholding
is mandatory if an alien 'establishes that it is more likely than
not that he would be subject to persecution on one of the specified
grounds.'" INS v. Aguirre-Aguirre, 526 U.S. 415, 419 (1999)
(quoting INS v. Stevic, 467 U.S. 407, 429-30 (1984)). For that
reason, we consider first the denial of Albathani's application for
asylum.
-15-
III.
A. Denial of the Application for Asylum
The burden of proof for establishing eligibility for
asylum lies on the petitioner. 8 C.F.R. § 208.13(a). Applicants
must show either past persecution or well-founded fear of future
persecution. Id. § 208.13(b). Such past or future persecution
must be based on "race, religion, nationality, membership in a
particular social group, or political opinion." Id. §
208.13(b)(1). The petitioner bears the burden of providing
"conclusive evidence" that he was targeted on any of the five
grounds. Velásquez v. Ashcroft, No. 01-1741, 2002 WL 31904478, at
*2 (1st Cir. Dec. 30, 2002); see, e.g., Aguilar-Solis, 168 F.3d at
571 (finding that petitioner failed to carry his burden in proving
past persecution because his account lacked the requisite degree of
specificity, and because "the vague evidence of alleged persecution
that the petitioner adduced failed to establish a sufficient nexus
between the events that he described and any ground enumerated").
Here, we conduct our substantial evidence review of the
IJ's decision regarding asylum and withholding of deportation,4
rather than the BIA's opinion. "Ordinarily, Courts of Appeals
review decisions of the [BIA], and not those of an IJ. When the
BIA does not render its own opinion, however, and either defers
4
Albathani does not appeal the IJ's decision regarding his
claim under the Convention Against Torture.
-16-
[to] or adopts the opinion of the IJ, a Court of Appeals must then
review the decision of the IJ." Gao v. Ashcroft, 299 F.3d 266, 271
(3d Cir. 2002).
The burden was on Albathani to show that he was
persecuted based on his membership in a particular social group, or
for his political opinions. See 8 C.F.R. § 208.13(b). We assume
arguendo that membership in the Lebanese Forces satisfies the
"particular social group or political opinion" categories. The
difficulty for Albathani is that the IJ did not find him credible
on these claims. Accepting that he had been robbed and beaten by
Hezbollah, the IJ did not find this to be persecution based on one
of the five categories. The record provides adequate reason for
doubt. The two incidents on the road may well have been, as the IJ
suggested, nothing more than the robbery of someone driving a
Mercedes with cash in his pocket. The IJ thought Albathani's fear
of persecution was undercut by his twice returning to Lebanon after
trips abroad.
It is true that the IJ did not specifically comment on
his evidence -- a significant omission -- that Hezbollah later
visited his sister's house and threatened him, and that this visit
led him to seek refuge in the United States. But there was reason
to doubt the event occurred; only Albathani's word established it,
and there was a conspicuous lack of corroborating evidence from his
family members in America. This is not an instance of the INS
-17-
improperly insisting on evidence that was not likely to be
available to a refugee. See, e.g., Gailius, 147 F.3d at 45-46.
There is nothing in the record to establish that Albathani was
denied communication with his family in America. He was
represented by counsel, and his cousin was present at one hearing
with him. Indeed, Albathani was living with his brother in New
Hampshire at the time of the hearing, and his aunt was present at
an earlier hearing. He was also in contact with his older brother,
then in Brazil, who had been in the Lebanese Forces and could have
corroborated much of his story.
Petitioner argues that the IJ ignored evidence of
Albathani's limited capacities in making her decision. We do not
find support for this. The IJ's decision acknowledges Albathani's
limited education (he left school at 15) and claim that he had head
"trouble" since his beatings in her decision. His inarticulateness
at the hearing was recognized by both the IJ and his own counsel.
The IJ also noted Albathani's tendency to "fluctuate" on dates
during the hearing, but did not rely on such changes in her
decision. For example, during the hearing Albathani initially
testified that his travel to Syria took place in 1999, even though
he had already left for the United States by that date. He also
demonstrated a tendency to agree with whatever assertion was put to
him. During cross-examination, Albathani said that during his trip
to Syria, he had received passport stamps from both the Syrian and
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Lebanese border guards, testimony which was belied by his passport.
The IJ took these limitations into account, commenting during the
hearing that she did not "hold [his inarticulateness] against him."
Albathani's inconsistency problems go well beyond mere
fluctuations. He showed a pattern of embellishing his story. In
each context, Albathani added a new incident. He originally
described a single beating (the 1998 one) in his credible fear
interview. He did not mention at that time that he was
hospitalized as a result of this beating. Then, in his
application, Albathani added a 1996 incident, complete with
hospitalization and a coma, as well as expanding the later incident
to include almost a week's hospitalization. At the hearing itself,
Albathani mentioned for the first time a second incident in 1998,
the December threat delivered to his sister. Given this pattern,
we find adequate support for the IJ's reservations regarding
Albathani's credibility.
As petitioner points out, some instances in the record
support his credibility. One example is his correct identification
of a Lebanese Forces commander. It is also true that the IJ did
not explicitly discuss the Country Conditions Report for Lebanon,
admitted into evidence, other than as useful background. These
Reports provide some support for Albathani's claimed fear of
kidnapping and murder. Hezbollah is reported to detain and
mistreat prisoners from groups to which it is opposed. There is no
-19-
evidence, however, of a pattern of kidnappings by Hezbollah in the
last decade, although kidnapping was widespread during the civil
war. But these Reports would not have straightened out the
inconsistencies in Albathani's own stories.
On our review of the entire record, we do not find
evidence sufficient to compel reversal of the denial of Albathani's
asylum claim.5 He, a fortiori, fails to satisfy the standard for
withholding of deportation. See Velásquez, 2002 WL 31904478, at *4
n.2.
B. Due Process
Albathani raises before us a challenge he did not raise
in such terms before the BIA: a procedural due process challenge to
the IJ's conduct of his hearing. He alleges that the IJ improperly
berated the interpreter, rushed the hearing along, sharply cross-
examined him, and refused to examine evidence of his beatings in
the form of scars. Respondent says that any due process claim is
waived. See Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999)(holding
that petitioner "waived his due process claim by failing to raise
it at his deportation hearing, at his hearing for suspension of
deportation, or before the BIA"). We bypass the waiver question
5
Albathani, citing Matter of Pula, 19 I. & N. Dec. 467 (BIA
1987), says the INS gave too much weight to the circumvention of
orderly refugee procedures. The criticism is misplaced -- this was
not the sole or even primary focus of the IJ.
-20-
because the claim is easily determined to be meritless, and because
he raised similar arguments, under a different label, to the BIA.
As an unadmitted alien present in the United States,
Albathani's due process rights are limited. See Kaplan v. Tod, 267
U.S. 228, 230 (1925) (presence in the country immaterial because
excluded alien "was still in theory of law at the boundary line and
had gained no foothold in the United States"). As a result, many
constitutional protections are unavailable to Albathani. See
Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) ("Whatever
the procedure authorized by Congress is, it is due process as far
as an alien denied entry is concerned.") (internal quotation
omitted).
Moreover, even if Albathani were an admitted alien, the
problems he describes still would not rise to the level of a due
process violation. Albathani's real complaint is that he may have
been misunderstood and that his lack of credibility was simply a
function of bad interpreting. But there is nothing to suggest this
is so. At the hearing, neither Albathani nor his counsel
questioned the accuracy of the translation by the interpreter at
the IJ hearing. Even now, Albathani does not identify points in
the hearing where the translation was inaccurate or misleading.
The IJ was, at times, short in her treatment of the
interpreter, but may have had cause. "[O]rdinary efforts at
-21-
courtroom administration" do not mean that the hearing was unfair,
even where the judge was "stern and short-tempered." Morales v.
INS, 208 F.3d 323, 327 (1st Cir. 2000). Similarly, the IJ's
attempts to expedite proceedings are "not the stuff of which a due
process violation can be fashioned." Aguilar-Solis, 168 F.3d at
569. Indeed, Albathani's own counsel sought to expedite the
hearing so that he could keep a scheduled court appearance that
afternoon. The IJ's cross-examination of Albathani is expressly
authorized by regulation. See 8 C.F.R. 208.9(c) ("The asylum
officer shall have authority to . . . question the applicant and
any witnesses."). Moreover, with regard to the scars, Albathani's
counsel chose not to request more time to submit photographs.
Albathani had a full and fair hearing.
IV.
Petitioner, supported by amici, challenges the BIA's
affirmance without opinion (AWO) procedure under which the IJ's
decision was upheld. Petitioner claims that AWO violates due
process; amici argue that it violates rules of administrative law.6
Both say there must be a more substantive statement of the reasons
for the BIA's decision.
6
Although amici may not present legal theories not argued by
the parties, see Lane v. First Nat'l Bank of Boston, 871 F.2d 166,
175 (1st Cir. 1989)(an amicus may not "interject into a case issues
which the litigants, whatever their reasons might be, have chosen
to ignore"), we view amici in this case as presenting variations on
the arguments presented by Albathani.
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The context of the claim is important. An alien has no
constitutional right to any administrative appeal at all.
Guentchev v. INS, 77 F.3d 1036, 1037 (7th Cir. 1996); see also
Abney v. United States, 431 U.S. 651, 656 (1977)(no constitutional
right to appeal in criminal cases). Nor has Congress given aliens
any statutory right to an administrative appeal. Such
administrative appeal rights as exist are created by regulations
promulgated by the Attorney General. See 8 C.F.R. § 3.1(b)(2002).
The Attorney General first adopted the AWO procedure at
issue in 1999. Rather than the usual three-member review, the
"affirmance without opinion" procedure allowed for review of a case
by a single member, who would affirm the IJ's decision with the
statement: "The Board affirms, without opinion, the result of the
decision below." 8 C.F.R. § 3.1(a)(7)(iii) (2002).7 The AWO
procedure was limited to certain categories of cases, designated by
the Chairman of the BIA, see id. at (7)(i). Once the case was
selected by the Chairman, one-member review was permissible where
the Board member found that the case fit certain criteria:
(ii) The single Board Member to whom a case is assigned
may affirm the decision of the Service or the Immigration
Judge, without opinion, if the Board Member determines
that the result reached in the decision under review was
correct; that any errors in the decision under review
were harmless or nonmaterial; and that
7
The September 25, 2002 amendment to the regulations
restructured this section. See 67 Fed. Reg. 54,878 (Aug. 26, 2002)
(to be codified at 8 C.F.R. § 3.1(e)(4)).
-23-
(A) the issue on appeal is squarely controlled by
existing Board or federal court precedent and does not
involve the application of precedent to a novel fact
situation; or
(B) the factual and legal questions raised on appeal are
so insubstantial that three-Member review is not
warranted.
(iii) If the Board Member determines that the decision
should be affirmed without opinion, the Board shall issue
an order that reads as follows: "The Board affirms,
without opinion, the result of the decision below. The
decision below is, therefore, the final agency
determination. See 8 CFR 3.1(a)(7)." An order affirming
without opinion, issued under authority of this
provision, shall not include further explanation or
reasoning. Such an order approves the result reached in
the decision below; it does not necessarily imply
approval of all of the reasoning of that decision, but
does signify the Board's conclusion that any errors in
the decision of the Immigration Judge or the Service were
harmless or nonmaterial.
Id. at (a)(7).8 A further provision provided for the single member
to return the case for full three-member consideration in the event
that he or she determined that it was not suitable for one-member
determination. Id. at (7)(iv).
8
According to amici, the procedure was used sparingly until
early 2002. In February 2002, the Attorney General proposed new
rules that would, inter alia, increase the range of cases that
could be reviewed under AWO procedure, and reduce the Board from 23
members to 11 members. The intent of the new rules was to
eliminate the backlog of pending cases by reducing the amount of
time allotted to each one. Since these new rules did not go into
effect until September 2002, amici argue they had an immediate
impact by causing Board members who wished to retain their jobs to
hurry through as many AWO cases as possible. Albathani's case,
amici argue, was heard under the 1999 regulations, but as part of
a rush to meet new expectations. Nonetheless, this appeal only
concerns the 1999 regulations under which his case was decided.
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Promulgation of the AWO regulations is within the power
of the INS.9 "[A]dministrative agencies should be free to fashion
their own rules of procedure and to pursue methods of inquiry
capable of permitting them to discharge their multitudinous
duties." Vt. Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 435 U.S. 519, 543 (1978).
Petitioner and amici present two theories in their
challenge to the AWO procedure. The first is that the BIA decision
is the final decision and a BIA summary affirmance does not provide
a reasoned basis for review. The second is that a one-line summary
affirmance provides no way for courts to police the BIA to see that
it is actually doing its job according to the regulations it has
promulgated. Albathani and amici argue that the 1999 AWO procedure
violates a basic principle of administrative law: the requirement
that agencies provide reasoned bases for their decision. As
classically formulated in SEC v. Chenery Corp., 332 U.S. 194
(1946):
If the administrative action is to be tested by the basis
upon which it purports to rest, that basis must be set
9
It is possible that the outcome of increased use of summary
procedures will be to shift the backlog to the federal courts of
appeal. Indeed, the Ninth Circuit is already projecting a dramatic
three-fold increase in the number of immigration appeals since
2001. See L. Getter & J. Peterson, Speedier Rate of Deportation
Rulings Assailed, L.A. Times, Jan. 5, 2003, at A1. The highly-
expedited nature of the review may prompt even more appeals to the
courts. Still, as amici point out, many non-citizens are unable to
afford legal counsel and do not have pro bono counsel, and this may
chill their willingness to go to court.
-25-
forth with such clarity as to be understandable. It will
not do for a court to be compelled to guess at the theory
underlying the agency's action; nor can a court be
expected to chisel that which must be precise from what
the agency has left vague and indecisive.
Id. at 196-97. But both overlook the plain language of Chenery,
which refers to agencies in their entirety, not individual
components of agencies. Here, the relevant agency -- the INS --
has presented a statement of reasons for its decision, albeit from
the IJ rather than the BIA. Chenery does not require that this
statement come from the BIA rather than the IJ.
The BIA can adopt, without further explication, the IJ's
opinion. See Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) ("[W]e join
eight of our sister circuits in ruling that the Board need not
write at length merely to repeat the IJ's findings of fact and his
reasons for denying the requested relief, but, rather, having given
individualized consideration to a particular case, may simply state
that it affirms the IJ's decision for the reasons set forth in that
decision.") (listing cases).
The contention here is that the AWO procedure is
distinguishable from Chen because it permits affirmance without
opinion even when the BIA disagrees with the IJ's reasoning. The
AWO regulation does indeed allow such an affirmance. Because the
summary affirmance is only of the "result" and not the reasoning,
this means that courts of appeals are forced to review a decision
which may or may not contain the reasoning of the BIA. The court
-26-
thus reviews the BIA decision without knowing its basis. The
summary affirmance scheme does create these problems, but they do
not render the scheme a violation of due process or render judicial
review impossible. Nor does the scheme violate any statute.
The courts will continue to have the IJ's decision and
the record upon which it is based available for review. See also
8 U.S.C. § 1252(b)(4)(A) ("[T]he court of Appeals shall decide the
petition only on the administrative record on which the order of
removal is based."). This permits a court to carry out an
intelligent review.
In functional terms, if the BIA does not independently
state a correct ground for affirmance in a case in which the
reasoning proffered by the IJ is faulty, the BIA risks reversal on
appeal. One of the several justifications for Chenery's
requirement for explicit reasons derives from a limitation on the
courts' ability to substitute different grounds. "[A] reviewing
court . . . must judge the propriety of such action solely by the
grounds invoked by the agency. If those grounds are inadequate or
improper, the court is powerless to affirm the administrative
action by substituting what it considers to be a more adequate or
proper basis." Chenery, 332 U.S. at 196; see also Fed. Power
Comm'n v. Texaco, Inc., 417 U.S. 380, 397 (1974) ("[A]n agency's
order must be upheld, if at all, on the same basis articulated in
-27-
the order by the agency itself.").10 In short, if the BIA
identifies an alternative satisfactory ground for upholding denial
of asylum in a case with an otherwise unsatisfactory decision by
the IJ, it must state it or risk remand. Ordinarily, the case will
be remanded to the agency, and the agency will not, in the end,
have saved any time or effort.
The more serious argument is that the very nature of the
one-line summary affirmance may mean that BIA members are not in
fact engaged in the review required by regulation and courts will
not be able to tell. Immigration decisions, especially in asylum
cases, may have life or death consequences, and so the costs of
error are very high. Amici point out that this fear is not
abstract in light of the huge caseload faced by only 19 BIA
members. For example, the Board member who denied Albathani's
appeal is recorded as having decided over 50 cases on October 31,
2002, a rate of one every ten minutes over the course of a nine-
hour day. See L. Getter & J. Peterson, Speedier Rate of
Deportation Rulings Assailed, L.A. Times, Jan. 5, 2003, at A1.
In fact, it has taken us considerably longer than one day
to review this case, and the record of the hearing itself could not
be reviewed in ten minutes. In general, even when the IJ decides
the alien is not credible, there must be review of the record
10
Albathani argues that this very rule proves his point --
the court should know the true reasons for the BIA's action. Our
answer above applies to this as well.
-28-
before the IJ by the BIA. The BIA itself has, on review of the
record, rejected lack of credibility determinations by the IJ.
Further, as we noted in Gailius, 147 F.3d at 47, there must be
reasons for disbelief of uncontradicted testimony. But our review
here confirms that if there were any deviation from what the
regulations required of the single BIA member (and there is no
reason to think there is any), then the error would be harmless.
There was a basis for affirmance and for summary affirmance.
Were there evidence of systemic violation by the BIA of
its regulations, this would be a different case. We would then
have to face, inter alia, the INS's claim that the decision to
streamline an immigration appeal is not reviewable by the courts
because these are matters committed to agency discretion. But see
Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (presumption of
reviewability of agency actions), abrogated in part by Califano v.
Sanders, 430 U.S. 99, 105 (1977) (holding that the APA is not to be
interpreted as an implied grant of subject-matter jurisdiction over
agency decisions); Goncalves v. Reno, 144 F.3d 110, 127 (1st Cir.
1998), cert. denied, 526 U.S. 1004 (1999) (upholding judiciary's
role in determining whether an agency's interpretation of a statute
is permissible); cf. Saakian v. INS, 252 F.3d 21, 25-27 (1st Cir.
2001)(remanding case where BIA failed to apply its own rules). We
are not willing, however, in the absence of such evidence, to infer
from these numbers alone that the required review is not taking
-29-
place. Courts themselves use "summary affirmance" or "summary
disposition" procedures in which parties may receive one-line
dispositions of their appeals. See, e.g., 1st Cir. R. 27.1. These
are workload management devices that acknowledge the reality of
high caseloads. They do not, either alone or in combination with
caseload statistics, establish that the required review is not
taking place.
For these reasons, the challenges to the AWO procedure
are rejected.
V.
The decision of the BIA is affirmed.
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