United States Court of Appeals
For the First Circuit
No. 02-2395
LAHOUARI HAOUD,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF THE FINAL ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
Daniel F. Cashman, with whom Cashman & Lovely, P.C., and
Susanna L. Shafer, were on brief for Petitioner.
Beth J. Werlin, with whom Mary A. Kenney, Nadine K.
Wettstein, were on brief for American Immigration Law Foundation,
Iris Gomez, was on brief for Massachusetts Law Reform Institute,
and Harvey Kaplan, with whom Kaplan, O'Sullivan & Friedman, were
on brief for American Immigration Lawyers Association, New
England Chapter, amicus curiae.
Virginia M. Lum, Attorney, with whom Peter D. Keisler,
Assistant Attorney General, and Terri J. Scadron, Assistant
Director, were on brief for Respondent.
November 25, 2003
STAHL, Senior Circuit Judge. Appellant Lahouari Haoud
appeals from the Board of Immigration Appeals' (the "Board")
affirmance without opinion of an Immigration Judge's order denying
Haoud's claims for relief from removal under the Immigration and
Nationality Act, 8 U.S.C. §§ 1101 et seq. As the Board's decision
provides an inadequate basis for judicial review, we remand to the
Board for further proceedings.
I. BACKGROUND
Haoud is a native and citizen of Algeria. He entered the
United States on a six-month visa in 1995 and stayed unlawfully
after the expiration of the visa. On December 30, 1999, the FBI
and local police came to his home in East Boston, Massachusetts,
and arrested him for carrying a fraudulent green card. Law
enforcement also questioned him about terrorist activities.
Although a criminal charge was never filed against Haoud, numerous
newspaper articles and television broadcasts linked him to the
general terrorist scare on the eve of the new millennium,
specifically with regard to Algerians arrested in Boston who had
been questioned about their connections with terrorist groups such
as the Armed Islamic Group of Algeria ("GIA").
Because of the fraudulent green card and the fact that he
had overstayed his visa, Haoud was held at an INS detention center
throughout January 2000. On March 24, 2000, he submitted an
application and supporting affidavit for asylum, withholding of
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removal under 8 U.S.C. § 1231(b)(3), withholding or deferral of
removal under Article 3 of the United Nations Convention Against
Torture, and voluntary departure under 8 U.S.C. § 1229a. He
claimed that because his arrest for possessing a false green card
had generated local and nationwide publicity implying that he was
associated with an Algerian terrorist group, he feared persecution
if he was returned to Algeria. At his asylum hearing, in addition
to his own testimony, documentation of his arrest and the
subsequent media coverage, Haoud produced Dr. John Entelis, an
expert in Algerian politics from Fordham University, who testified
that because of the paranoid climate pervading Algerian society and
its government, Haoud would be in danger in Algeria as the
government, knowing of the claims made against him in the United
States, would consider him a terrorist or enemy of the state.
The Immigration Judge ("IJ") denied all four of Haoud's
applications. He decided that Haoud's asylum application was
untimely filed and that he failed to establish changed
circumstances to excuse that untimeliness. See 8 U.S.C. §§
1158(a)(2)(B) & (D). Alternatively, the IJ found that Haoud's
application failed to demonstrate either past persecution or a
well-founded fear of future persecution based on a reasonable
possibility that he would suffer harm in Algeria. The IJ explained
that Haoud could not use the media reports to "manufacture an
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asylum claim" and that Dr. Entelis's testimony was too speculative
to support the claim.
Shortly after the IJ made these determinations, the Board
decided a case, In re Amine Touarsi, A78 161 736 (BIA 12/28/2000),
involving another Algerian man who was arrested in Boston the same
night as Haoud on the same suspicion of terrorism. Although the IJ
denied Touarsi's asylum application, the Board on appeal reversed
upon concluding that Touarsi had "a well-founded fear of
persecution in Algeria based on imputed political opinion."
Haoud timely appealed the IJ's decision to the Board. In
his appeal, Haoud raised Touarsi. Notwithstanding that apparent
precedent, the Board affirmed the IJ's decision without opinion
under 9 C.F.R. § 1003.1(e)(4).
II. DISCUSSION
On appeal, the parties raise three primary issues: (1)
whether we have jurisdiction to review the Board's decision; (2)
whether the IJ's decision was in error; and (3) whether the Board's
affirmance without opinion (AWO) violated the Board's own
regulatory procedure. Because we decide this appeal on issue (3),
we discuss issues (1) and (2) only as they bear on (3).
For a determination by the Board of Immigration Appeals
of statutory eligibility for relief from deportation, we review
questions of law de novo. See Civil v. INS, 140 F.3d 52, 54 (1st
Cir. 1998). While deference is given to an agency's interpretation
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of the underlying statute, such interpretation must be "in
accordance with administrative law principles." Debab v. INS, 163
F.3d 21, 24 (1st Cir. 1998).
A. Jurisdiction
The government contends that we lack jurisdiction to
review the IJ's denial of Haoud's asylum application because Haoud
failed to file his application within one year of his arrival in
the United States.1 The government also argues that under 8 U.S.C.
§ 1158(a)(3), we are foreclosed from reviewing a determination that
an alien failed to timely file an asylum application.2 Haoud
concedes that his asylum application was untimely, but argues that
he presented "extraordinary circumstances" that excuse the delay,
pursuant to 8 U.S.C. § 1158(a)(2)(D).3
1
8 U.S.C. § 1158(a)(2)(B) provides
Subject to subparagraph (D), paragraph (1) shall not apply to
an alien unless the alien demonstrates by clear and convincing
evidence that the application has been filed within 1 year after
the date of the alien's arrival in the United States.
2
8 U.S.C. § 1158(a)(3) provides
No Court shall have jurisdiction to review any determination
of the Attorney General under paragraph (2).
3
8 U.S.C. § 1158(a)(2)(D) provides
An application for asylum of an alien may be considered,
notwithstanding subparagraphs (B) and (C), if the alien
demonstrates to the satisfaction of the Attorney General either the
existence of changed circumstances which materially affect the
applicant's eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the period
specified in subparagraph (B).
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Our sister circuits agree that 8 U.S.C. § 1158(a)(3) bars
judicial review of the Board's decision as to the timeliness of an
asylum application.4 See Tarrawally v. Ashcroft, 338 F.3d 180, 185
(3d Cir. 2003); Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230 (10th
Cir. 2003); Fahim v. U.S. Attorney General, 278 F.3d 1216, 1217
(11th Cir. 2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir. 2001).
The Tenth Circuit in Tsevegmid explained:
This court generally has jurisdiction to review the
denial of any asylum request. See 8 U.S.C. §
1252(a)(2)(B)(ii). . . . However, our jurisdiction to
review a [Board] determination on the timeliness of an
application for asylum is limited by statute. Section
1158(a)(3) expressly provides that the courts do not have
"jurisdiction to review any determination" on whether the
alien filed his application within a year of entry or
whether "changed circumstances" exist "which materially
affect the applicant's eligibility for asylum or
extraordinary circumstances relating to the delay in
filing an application."
318 F.3d at 1229.
Though we concur that 8 U.S.C. § 1158(a)(3) could bar our
review of the IJ's determination of the timeliness of Haoud's
asylum application, resolution of this issue does not dispose of
this case. As discussed infra, we must determine on what grounds,
whether it be untimeliness or the merits of Haoud's asylum claim,
the Board affirmed the IJ's decision. If the Board affirmed the
4
We are not similarly barred from reviewing the IJ's denial of
Haoud's applications for withholding of removal, Convention Against
Torture protection, and voluntary departure. In his brief,
however, Haoud has not asked us to do so, and we therefore refrain
from discussing these issues.
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IJ's decision on the merits of Haoud's persecution claims, but
rejected the IJ's conclusion as to the untimeliness and "changed
circumstances" issue, then we have jurisdiction over this appeal.
B. The IJ's Decision
Haoud challenges the IJ's decision on the merits, arguing
that the IJ made erroneous conclusions of law that were neither
harmless nor immaterial, and hence led to an incorrect result in
denying him asylum. Here the Board's decision effectively prevents
a reviewing court from knowing whether the affirmance of the IJ's
decision is reviewable or non-reviewable. The AWO cannot be used
to deny our legitimate review power if we are left without a proper
basis to determine our own jurisdiction or to evaluate the Board's
own critical analysis, see infra. Accordingly, we refrain at this
time from discussing the merits of the IJ's decision.
C. The Board's Affirmance Without Opinion
The Board "has the duty to follow its own federal
regulations." Nelson v. INS, 232 F.3d 258, 262 (1st Cir. 2000);
see also Saakian v. INS, 252 F.3d 21, 25-27 (1st Cir. 2001).
Failure to do so can result in the reversal of an agency order and
a new hearing. Id.
Haoud argues that the Board failed to follow its own
regulatory procedure when it issued the affirmance without opinion
(AWO) in this case. The Attorney General adopted the AWO procedure
at issue in 1999. Rather than the usual three-member review, an
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AWO allows for review of a case by a single member, who then
affirms the IJ's decision with the statement, "The Board affirms,
without opinion, the result of the decision below." 8 C.F.R.
§ 1003.1(a)(7)(iii). Unlike decisions rendered after review by a
three-member panel, a single Board member acting under 8 C.F.R.
§ 1003.1(e)(4) is prohibited from explaining his decision on the
merits in an AWO. Moreover, the regulation defines an AWO as a
Board approval of only the "result reached in the decision below."
8 C.F.R. § 1003.1(e)(4). The AWO does not "necessarily imply
approval of all the reasoning" of the IJ's decision, although it
does signify the Board's conclusion that any errors were harmless
or immaterial. Id. The Board member can issue an AWO only if he
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 (A) The issues on
appeal are squarely controlled by existing Board or
federal court precedent and do not involve the
application of precedent to a novel fact situation; or
(B) The factual and legal issues raised on appeal are not
so substantial that the case warrants the issuance of a
written opinion in the case.
Id.
The government strenuously argues that the Board's
decision to streamline a particular case is committed to agency
discretion and is not subject to judicial review. See 5 U.S.C. §
701(a)(2); Heckler v. Chaney, 470 U.S. 821, 830 (1985). Where a
law "is drawn so that a court would have no meaningful standard
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against which to judge the agency's exercise of discretion,"
Congress is assumed to have "'committed' the decision making to the
agency's judgment absolutely." Heckler, 470 U.S. at 830-32.
Heckler involved a decision by the federal Food and Drug
Administration to refrain from instituting enforcement proceedings
with respect to drugs used for lethal injections to carry out the
death penalty. The Supreme Court found the FDA's decision
unreviewable because it dealt with "complicated balancing of
factors" that were "peculiarly within [the agency's] expertise."
Id. at 831. The Court found no applicable legal standard or "law"
in the Federal Food Drug and Cosmetic Act against which a court
could legitimately review the FDA's decision not to commence
enforcement proceedings. See id.
Here, the Board's own regulation provides more than
enough "law" by which a court could review the Board's decision to
streamline. As 8 C.F.R. § 1003.1(e)(4) sets out supra, the Board
cannot affirm an IJ's decision without opinion if the decision is
incorrect, errors in the decision are not harmless or immaterial,
the issues on appeal are not squarely controlled by Board or
federal court precedent and involve the application of precedent to
a novel fact situation, or the issues raised on appeal are so
substantial that a full written opinion is necessary. Especially
when the Board's review of an IJ's decision often hinges on Circuit
court precedent, we are well-equipped, both statutorily and
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practically, to review a decision to streamline. See 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).
The government also postulates that the criteria of
8 C.F.R. § 1003.1(e)(4) were met here and that there was no harmful
error requiring review by a three-member panel of the Board.
Without an explanation of the reasons for the decision, we cannot
determine whether the Board--applying the proper standards under 8
C.F.R. § 1003.1(e)(4)--adequately and correctly evaluated each of
the criteria. Here, we do not know which of the alternatives
outlined in the regulation was applied to affirm the IJ's decision,
which itself was based on multiple grounds. Put another way,
presently, we have no way of knowing whether and how the Board
applied the standards of 8 C.F.R. § 1003.1(e)(4) to either or both
of the IJ's conclusions on (1) the "changed circumstances"
exception to the time bar and (2) the issues of past and future
persecution that constitute the merits of Haoud's asylum
application. The AWO in this case gives us no guidance as to
whether the Board affirmed the IJ's decision on a non-reviewable
basis, i.e. untimeliness, or a reviewable basis, i.e. the merits of
Haoud's asylum claim.
Moreover, there is no way we can determine from the AWO
whether the Board reviewed the case and found a legitimate way of
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distinguishing the Touarsi case in denying Haoud's asylum claim.
We have stated that "[w]hen the [Board] does not render its own
opinion, . . ., and either defers [to] or adopts the opinion of the
IJ, a Court of Appeals must then review the decision of the IJ."
Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003), quoting Gao v.
Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002); Herbert v. Ashcroft,
325 F.3d 68, 71 (1st Cir. 2003). This approach is inapposite here
because the IJ never had the opportunity to consider Touarsi, which
was rendered following the IJ's decision. There, the Board granted
another Algerian national asylum on very similar facts and only
four months after the IJ's denial of Haoud's application. Like
Haoud, Touarsi had been arrested on December 30, 1999, by federal
authorities in a nationwide investigation of a suspected terrorist
plot against targets in the United States by the GIA. News of the
investigation, including Touarsi's name, had been widely reported
in the local and national press. In re Amine Touarsi, A78 161 736
at 1-2. The Board held that Touarsi "had a well-founded fear of
persecution in Algeria on account of the political opinion that
would be imputed to him by that country's government, in that he
would be viewed and treated as an individual who sympathized with
or supported the GIA or another Islamist terrorist group." Id. at
4.
Notwithstanding the fact that Haoud brought Touarsi to
its attention, the Board failed to render a decision consistent
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with or fully explained as reasonably departing from its own
precedent in Touarsi. As the regulation clearly sets out, "Except
as they may be modified or overruled by the Board or the Attorney
General, decisions of the Board shall be binding on all officers
and employees of the Service or Immigration Judges in the
administration of the Act." 8 C.F.R. § 1003.1(g). Among the
points raised by Haoud with regard to the precedential value of
Touarsi, besides the obvious factual similarities, are (1) the
Board's conclusion in Touarsi that asylum could be granted based on
incidents that occurred solely in the United States, a proposition
rejected by the IJ in Haoud's case; and (2) factual findings made
by the Board in Touarsi that mirror the rejected testimony of Dr.
Entelis.
The Board's use of the AWO procedure in this case runs
counter to what we have warned against in the past:
[A]dministrative agencies must apply the same basic rules
to all similarly situated supplicants. An agency cannot
merely flit serendipitously from case to case, like a bee
buzzing from flower to flower, making up the rules as it
goes along.
Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996). Especially where the
IJ did not have the opportunity to address Touarsi, the Board has
an obligation to do so and thereby "give careful, individualized,
rational explanations for its decisions," Mousa v. INS, 223 F.3d
425, 430 (7th Cir. 2000) and "announce its decision in terms
sufficient to enable a court to determine it heard and thought and
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not merely reacted." See Scorteanu v. INS, 339 F.3d 407, 412 (6th
Cir. 2003) (citations omitted).
Based on the AWO, we cannot determine whether the Board
reviewed Haoud's case and found a legitimate means of
distinguishing it from Touarsi. As we held in Albathani v. INS,
"If the [Board] identifies an alternative satisfactory ground for
upholding the denial of asylum in a case with an otherwise
unsatisfactory decision by the IJ, it must state it or risk
remand." 318 F.3d at 378. The Board's use of the AWO must not
interfere with Haoud's "right to a reasoned administrative
decision." See Executive Office of Immigration Review; Board of
Immigration Appeals: Streamlining, 64 FR 56135, 56137 (1999). As
Touarsi bears strongly on Haoud's asylum application, an AWO
affirming an IJ's decision that never considered Touarsi fails to
meet this mandate.
We therefore remand to the Board for further agency
proceedings consistent with this opinion.
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