Smriko v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

10-26-2004

Smriko v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-1085

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PRECEDENTIAL Peter D. Keisler
Anthony Wray Norwood
IN THE UNITED STATES COURT Earle B. Wilson
OF APPEALS Michael P. Lindemann
FOR THE THIRD CIRCUIT John D. Williams
Terri J. Scadron (Argued)
U.S. Department of Justice
NO. 03-1085 Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
SEJID SMRIKO Washington, DC 20044
Petitioner

v.
OPINION OF THE COURT
JOHN ASHCROFT,
ATTORNEY GENERAL
OF THE UNITED STATES
Respondent STAPLETON, Circuit Judge:

Sejid Smriko was a lawful
On Petition for Review of an Order permanent resident of the United States for
of the Board of Immigration Appeals less than five years when he committed a
A71-685-464 crime involving moral turpitude that, under
8 U.S.C. § 1227(a)(2)(A)(i), subjects one
to deportation. Smriko was admitted to the
Argued April 16, 2004 United States, however, with “refugee
BEFORE: RENDELL, STAPLETON status,” pursuant to a section of the
and LAY,* Circuit Judges Immigration and Nationality Act (“INA”)
that implements the United Nations
(Opinion Filed: October 26, 2004) Protocol Relating to the Status of
Refugees. Smriko requested that the
Immigration Judge (“IJ”) terminate his
James G. Gavin (Argued) removal proceedings because, he argued,
21 West Broad Street refugee status can only be cancelled
Burlington, NJ 08016 pursuant to limited grounds specified in
Attorney for Petitioner the INA, none of which were met here.
The IJ agreed with Smriko that, if he still
* Hon. Donald P. Lay, United States had refugee status, he would not be
Circuit Judge for the Eighth Circuit, sitting eligible for deportation. The IJ suggested,
by designation. however, that when an alien “voluntarily
chooses” to “adjust” his status from that of
a refugee to that of a lawful permanent deference in making such determinations,
resident, the alien loses refugee status and we then examine Smriko’s contention that
its accompanying statutory protections. his case was improperly subjected to the
Although the IJ did not provide any BIA’s affirmance without opinion process,
supporting precedent, he denied Smriko’s thereby erroneously preventing the BIA
motion to terminate removal proceedings from offering its interpretation of the
based on this reading of the INA. The statutory provision at issue here. We then
Board of Immigration Appeals (“BIA” or conclude that, in most situations, we may,
“Board”) thereafter summarily affirmed in reviewing a final order of deportation,
the IJ’s decision without opinion. Smriko review the BIA’s decision to issue an
now petitions for review of the IJ’s affirmance without opinion in a particular
decision, as well as the BIA’s decision to case. Here, we conclude that the Board
affirm without opinion a case that he member charged with examining Smriko’s
maintains raises novel issues of statutory case clearly acted arbitrarily and
interpretation. capriciously by issuing an affirmance
without opinion, in violation of the BIA’s
We first examine the merits of streamlining regulations, with respect to a
Smriko’s challenge, and conclude that his case presenting novel and substantial legal
view of refugee status–that it can only be issues without precedent. This agency
terminated pursuant to specific enumerated action deprived us of a Board
grounds contained in the INA–is consistent interpretation of the INA that we believe
with the text and some of the legislative the applicable agency regulations intended
history of the INA. We then note the us to have before addressing the merits of
absence of any precedent counseling in Smriko’s petition. Accordingly, we will
favor of or against Smriko’s proposed grant the petition for review and remand so
interpretation, and briefly examine the that the BIA may exercise its expertise and
Government’s argument that an overall, address Smriko’s proposed reading of the
expert examination of our nation’s INA.
immigration laws and system would
counsel against Smriko’s proposed reading I.
of the INA, and, instead, would suggest
that the INA “implicitly” contemplates that The facts before us are neither
refugees who achieve lawful permanent complicated, nor in dispute. Smriko is a
resident status simultaneously lose their native and citizen of Bosnia-Herzegovina
refugee status. who was admitted to the United States as
a refugee on October 20, 1994 pursuant to
Recognizing that the BIA has been 8 U.S.C. § 1157. At some point thereafter,
c h a r g e d w i t h p r o v id i n g e x p e rt Smriko was granted lawful permanent
interpretations of our nation’s immigration resident status pursuant to 8 U.S.C. §
laws and that this Court must give the BIA 1159(a)(2), backdated to his entry date of

2
October 20, 1994. status, and after the BIA’s affirmance
without opinion, this petition followed.1
Within five years of his entry into
the United States, Smriko was convicted II.
on three occasions of retail theft offenses
in Pennsylvania and New Jersey. On We have jurisdiction to review a
December 26, 1996, he was convicted of final order of removal pursuant to 8 U.S.C.
retail theft in violation of 18 Pa. Cons. § 1252(a)(1). See M ulanga v. Ashcroft,
Stat. § 3929(a)(1), and sentenced to pay a 349 F.3d 123, 131 (3d Cir. 2003).
fine and costs. On April 1, 1997, he was “[W]hen the BIA issues an [affirmance
convicted of shoplifting in violation of without opinion] under the streamlining
N.J. Stat. Ann. § 2C:20-11b(2), and regulations, we review the IJ’s opinion and
received a suspended sentence of five scrutinize its reasoning.” Dia v. Ashcroft,
days’ imprisonment. Finally, on April 8, 353 F.3d 228, 245 (3d Cir.2003) (en banc).
1999, he was convicted of retail theft and “ W e review the [agency’s] legal
receiving stolen property, in violation of determinations de novo, subject to
18 Pa. Cons. Stat. §§ 3929(a) & 3925(a), established principles of deference.”
respectively, and was assessed costs and Wang v. Ashcroft, 368 F.3d 347, 349 (3d
sentenced to one year of probation. Cir. 2004) (citing Chevron v. Nat. Res.
Def. Council, 467 U.S. 837, 844 (1984));
The former Immigration and see infra note 6 (discussing the propriety
N a t u r a l iz a t io n S ervice (“ I.N .S .” ) of giving Chevron deference to an IJ
commenced removal proceedings against decision that has been affirmed without
Smriko on August 24, 1999, charging him opinion by the BIA).
with removability on two statutory
grounds: (1) u nde r 8 U .S.C . § III.
1227(a)(2)(A)(i), as an alien convicted of
a crime involving m oral turpitude Title 8, Section 1227(a)(2)(A)(i) of
committed within five years after his the United States Code, provides, in
admission for which a sentence of one year
or longer may be imposed; and (2) under 8
U.S.C. § 1227(a)(2)(A)(ii), as an alien 1
The Government initially argued that
convicted of two or more crimes involving
the jurisdictional bar of 8 U.S.C. §
moral turpitude not arising out of a single
1252(a )(2 ) (C ) applied here, and,
scheme of criminal misconduct. Smriko
accordingly, moved to dismiss the petition
argued that his convictions were not for
for lack of jurisdiction. The Government
crimes involving moral turpitude, but the
has since conceded, and we agree, that §
IJ rejected that challenge. The IJ also
1252(a)(2)(C) is not implicated in this
r e j e cted Smriko’s aforementioned
case. Accordingly, we will deny by
argument with respect to his refugee
separate order the motion to dismiss.

3
pertinent part: crime involving moral turpitude. He
argues that shoplifting, the offense for
Any alien who–(I) is which he was convicted under § 3925(a),
convicted of a c rime is not a “crime involving moral turpitude,”
involving moral turpitude essentially because it is a prevalent crime
committed within five years in our modern world, and therefore that his
. . . after the date of violation of § 3925(a) would not qualify
admission, and (II) is him for deportation under 8 U.S.C. §
convicted of a crime for 1227(a)(2)(A)(i).
which a sentence of one
year or longer may be W e recently explain ed, in
imposed, is deportable. e x a m ining § 3925( a ) , the v e ry
Pennsylvania statute at issue here, that
Id. As noted above, Smriko was convicted “[w]hether an alien’s crime is one
for receiving stolen property under 18 Pa. involving moral turpitude is determined by
Cons. Stat. § 3925(a).2 That conviction the statute and record of conviction rather
unquestionably met the criteria of § than the alien’s specific act.” De
1227(a)(2)(A)(i). Smriko committed the § Leon-Reynoso v. Ashcroft, 293 F.3d 633,
3925(a) violation on December 19, 1998, 635 (3d Cir. 2002). That is, “the nature of
within five years of his date of admission an alien’s crime is determined by the
to the United States. Under Pennsylvania statute and record of conviction, not from
law, given the amount of stolen property the specific acts surrounding the
involved here, that offense constituted a conviction.” Id. (parenthetically quoting
misdemeanor in the third degree, see 18 Alleyne v. I.N.S., 879 F.2d 1177, 1185 (3d
Pa. Cons. Stat. § 3903(b)(2), which carried Cir.1989)) (alteration omitted). While we
a potential prison sentence of one year, see noted that “[t]he term ‘moral turpitude’
18 Pa. Cons. Stat. § 1104(3). defies a precise definition,” we indicated
that it contains “an ‘honesty’ component .
Smriko argues only that his . . , which includes: ‘[c]onduct that is
conviction under § 3925(a) was not for a contrary to justice, honesty, or morality.’”
Id. at 635-36 (quoting Black’s Law
Dictionary 1026 (7th ed. 1999))
2 (additional citations omitted). After noting
That section provides: “A person is
that “[c]ourts have held that knowingly
guilty of theft if he intentionally receives,
receiving stolen property is a crime of
retains, or disposes of movable property of
moral turpitude,” 293 F.3d at 636, and that
another knowing that it has been stolen, or
violation of 18 Pa. Cons. Stat. § 3925(a)
believing that it has probably been stolen,
“speak[s] . . . to the honesty of a person,”
unless the property is received, retained, or
id. at 637, we determined that a violation
disposed with intent to restore it to the
of that section amounts to a crime
owner.” Id. § 3925(a).

4
involving moral turpitude, id. at 637. De be terminated through a specific statutory
Leon-Reynoso clearly controls this case. process before he can be removed begins
We accordingly reject Smriko’s insistence with the 1967 United Nations Protocol
that his § 3925(a) conviction was not for a Relating to the Status of Refugees, 19
“crime involving moral turpitude.” 3 U.S.T. 6223, T.I.A.S. No. 6577 (the
“Protocol”). The United States is a party
IV. to the Protocol, which incorporates by
reference Articles 2 through 34 of the
Our task is not complete, however, 1951 United Nations Convention Relating
as Smriko suggests that the INA affords to the Status of Refugees, 19 U.S.T. 6259,
him additional protection as one who 189 U.N.T.S. 150 (the “Convention”), see
received “refugee status” upon his entry I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,
into the United States. While Smriko 427 (1999), and incorporates the definition
concedes that 8 U.S.C. § 1227(a)(2)(A)(i) of the term “refugee” found in Article I of
subjects a lawful permanent resident, such the Convention. See Protocol Art. I(1) &
as himself, to deportation, he argues that (2).
the INA only allows one with “refugee
status” to be removed under limited Under Article I of the Convention,
circumstances. He argues that “refugee entitled “Definition of the term ‘refugee,’”
status” coexists with lawful permanent one ceases to be a refugee if any of six
resident (“LP R”) status, providing events occur. See Convention Art. I(C).
additional protection, and that he cannot be In the case of a refugee in Smriko’s
removed unless one of the limited grounds situation, refugee status would not cease
under the INA for cancelling refugee until “he has acquired a new nationality,
status is met. and enjoys the protection of the country of
his new nationality.” Id. I(C)(3). The
A. Smriko’s Contention that Refugee United Nations High Commissioner for
Status Coexists with LPR Status Refugees has taken the position that this
provision “means that the refugee must
Smriko’s contention that refugee secure and be able to exercise all the rights
status coexists with LPR status and must and benefits entailed by possession of the
nationality of the country” before losing
refugee status, and because LPR status
3 does not entitle one to the same rights and
Having determined that Smriko’s §
benefits as a United States national,
3925(a) conviction amounted to a
obtaining LPR status is not a basis for the
deportable offense under 8 U.S.C. §
cessation of refugee status under the
1227(a)(2)(A)(i), we need not address the
Convention. See Interpreter Releases,
Government’s charge that Smriko’s other
Becoming LPR Does Not Terminate
convictions amounted to deportable
Refugee Status, UNHCR Says, 80 No. 11
offenses.

5
Inter. Rel. 413, App. (2003) (statement nationality, is outside any
from Office of the United Nations High country in which such
Commissioner for Refugees). pe r son last habitually
Accordingly, Smriko argues that the resided, and who is unable
Convention contemplates him retaining or unwilling to return to,
refugee status even after he achieved LPR and is unable or unwilling to
status because attaining LPR status did not avail himself or herself of
give him a “new nationality” that would the protection of, that
terminate the need for refugee status under country because of
the Convention. persecution or a
w e l l -f o u n d e d f e a r o f
The Refugee Act of 1980, 94 Stat. persecution on account of
102, brought into existence the current race, religion, nationality,
definition of “refugee” in the INA, see 8 membership in a particular
U.S.C. § 1101(a)(42)(A). The Supreme social group, or political
Court has instructed that “[i]f one thing is opinion. . . .
clear from the legislative history of the . .
. definition of ‘refugee,’ and indeed the Id. “Refugee” is used in many sections of
entire 1980 [Refugee] Act, it is that one of the INA. The provision under which
Congress’ primary purposes was to bring Smriko was admitted, 8 U.S.C. §
U n i t e d States refugee law into 1157(c)(1), authorizes the Attorney
conformance with the 1967 United Nations General “in [his or her] discretion and
Protocol Relating to the Status of pursuant to such regulations as [he or she]
Refugees.” I.N.S. v. Cardoza-Fonseca, may prescribe” to admit a limited number
480 U.S. 421, 436 (1987). Accordingly, of “refugees” annually. Refugees admitted
Smriko insists that the definition of under 8 U.S.C. § 1157, such as Smriko,
“refugee” found in the INA and the may then become lawful permanent
accompanying provisions for giving aliens residents after one year pursuant to 8
“refugee status,” which we address below, U.S.C. § 1159(a)–the key statutory
are to be construed as implementing the provision at issue here. This section,
protections for refugees found in the permitting refugees to obtain LPR status,
Convention. speaks only of refugees who qualify being
“regarded as lawfully admitted to the
Title 8, United States Code Section United States for permanent residence
1101(a)(42)(A), defines a “refugee” as [after one year],” id. § 1159(a)(2)
(emphasis added), and does not explicitly
any person who is outside provide for the termination of refugee
any country of such person’s status upon one being “regarded as” a
nationality or, in the case of lawful permanent resident. The absence of
a p e r s o n h a v i n g no language terminating refugee status in §

6
1159(a), Smriko contends, is consistent refugee status of any alien . . . pursuant to
with the definition of refugee found in § such regulations as the Attorney General
1101(a)(42)(A), which does not indicate may prescribe if the Attorney General
any particular time when one ceases to be determines that the alien was not in fact a
a refugee. Thus, Smriko argues, contrary refugee . . . at the time of the alien’s
to the IJ’s suggestion, becoming an LPR admission.” Id. The implementing
under the text of the statute provides only regulations for that section further require
additional benefits for those with refugee that the refugee be given “notice in
status and does not terminate refugee writing” of the Government’s intent to
status, consistent with Congress’s intent to “terminate the alien’s refugee status,”
implement the Protocol, which would along with 30 days in which to prepare
require Smriko to maintain refugee status evidence to be presented at a hearing to
until achieving protection equivalent to show cause “why the alien’s refugee status
that of a United States national. should not be terminated.” 8 C.F.R. §
207.9. Furthermore, the regulations
Other immigration law, Smriko indicate that “[u]pon termination of
suggests, also contemplates refugee status refugee status[] the district director shall
persisting after lawful permanent resident process the alien under [the INA’s
status is obtained. While, as discussed provisions for removal].” Id. Thus,
above, a refugee may be “regarded as” a Smriko argues, if the Government wishes
lawful permanent resident after one year, to seek his removal under the INA, the
see 8 U.S.C. § 1159(a)(1), 8 C.F.R. § statute and its implementing regulations
207.7 allows the family members of a provide an explicit process for first
“refugee,” under some circumstances, to removing his refugee status–a procedure
obtain derivative refugee status if they not followed here–and then processing him
apply within two years of the principal for removal. Had Congress sought to
refugee’s admission, thereby utilizing the remove refugee status for aliens who
principle alien’s refugee status even after become lawful permanent residents under
he or she received LPR status. § 1159(a)(1), it could have explicitly
provided for removing that status as it did
Moreover, Congress and the in § 1157(c)(4). 4
Department of H omeland Secu rity
(through its implementing regulations)
have explicitly provided for a means of 4
Smriko also urges that his
removing refugee status, consistent with
interpretation is supported by the BIA’s
the Protocol and apart from the IJ’s
decision in Matter of Medrano, 20 I. & N.
suggestion that refugee status is
Dec. 216 (BIA 1990). There, an alien had
“implicitly” forfeited upon becoming an
been granted lawful temporary resident
LPR. Under 8 U.S.C. § 1157(c)(4), the
status through the amnesty provisions of
Attorney General may terminate “[t]he
the Immigration Reform and Control Act

7
 Smriko concedes that his proposed Convention). He agrees that under the
construction of the INA would offer those Convention, “[e]very refugee has duties to
with refugee status more protection than the country in which he finds himself,
other lawful permanent residents, but which require in particular that he conform
argues that this was Congress’s intent in to its laws and regulations,” Convention,
i m pl em e nting the P roto c o l ( a nd Art. II, but notes that the violation of any
criminal law is not, in and of itself,
grounds for terminating refugee status
under that agreement. While he is liable
of 1986, see 8 U.S.C. § 1255a, and then
for violating criminal laws in the same
was convicted of a crime that would
manner as a United States citizen would
ordinarily subject an alien to deportation.
be, he argues that Congress, in
At the time of the BIA’s decision in
implementing the Protocol, intentionally
Medrano, the implementing regulations
limited the grounds for cancelling refugee
providing for cancellation of temporary
status because it intended to give refugees
resident status under § 1255a, not unlike 8
heightened protection (as compared to
C.F.R. § 207.9 and its requirements for
other aliens) in light of the traumatic
removing refugee status, allowed for
conditions they have fled. Because he
cancellation where the Government
views § 1159(a)(2), allowing for those
provided notice of its intent to remove and
with refugee status to become “regarded
an opportunity to offer evidence in
as” lawful permanent residents, as not
opposition, 8 C.F.R. § 245a.2(u)(2). An IJ
terminating his refugee status, he suggests
determined that the Government would
that the Government could only have
have to terminate Medrano’s temporary
cancelled his refugee status under §
resident status through § 245a.2(u)(2) prior
1157(c)(4). In light of the Government not
to initiating deportation proceedings based
even having attempted to cancel his
upon his having committed a crime that
refugee status under § 1157(c)(4) or
would ordinarily otherwise subject an alien
having followed the procedure outlined
to deportation, and the BIA affirmed.
under 8 C.F.R. § 207.9 for doing so,
Citing Medrano, Smriko argues that the
Smriko argues that he has been improperly
procedures set forth at 8 C.F.R. § 207.9 for
subjected to removal proceedings.
removing refugee status must also be met
here before removal proceedings can be
B. The Government’s Response
initiated against him. Medrano, however,
is not particularly helpful here, as in front
The Government concedes that
of the BIA the Government there
“[t]he statutory definition of ‘refugee’ [in
“removed its opposition to the decision of
8 U.S.C. § 1101(a)(42)(A)] speaks in the
the immigration judge,” Medrano, 20 I. &
present tense [and] imposes no temporal
N. Dec. at 218, and the BIA accordingly
l i m it a t io n o n r e f u g e e s t a t u s . ”
saw “no reason to disturb the immigration
Respondent’s Brief at 15. Moreover, the
judge’s decision.” Id. at 218-19.

8
Government does not appear to dispute permanent resident status pursuant to §
that nothing in the INA expressly 1159(a)(2).
terminates refugee status once a refugee
achieves LPR status pursuant to 8 U.S.C. First, the government looks to the
§ 1159(a)(2). Instead, the government conference report from the Refugee Act of
argues that 1980. The conference report indicates that
the Senate’s bill originally provided that,
[i]n practice, however, all absent emergency situations, refugees
sources of domestic law, would be admitted as lawful permanent
including the INA and its residents (with there simply being no such
support ing regu latio ns, thing as refugee status), while an
administrative and judicial amendment in the House provided for “all
case law, and the practices refugees entering the United States [to] be
of the INS, the Department admitted conditionally as ‘refugees’ with
of Homeland Security, and retroactive adjustment of status to lawful
the Executive Office for permanent residents after two years.” H.R.
Immigration Review, reason Conf. Rep. No. 96-781, at 21 (1980),
that when a “refugee” reprinted in 1980 U.S.C.C.A.N. 160, 162.
adjusts to “lawful permanent The Committee of Conference adopted the
resident” . . . status, he no House Amendment, but “with adjustment
longer is considered to be in of status permitted after a period of one
“ r e f u g e e ” s t a tu s f o r year.” Id. The Government also looks to
purposes of United States a statement by Senator Edward Kennedy,
immigration and nationality the Senate bill’s chief sponsor, who
law. Rather, he either indicated that
maintains his LPR status
and may subseq uentl y the Conferees compromised
n a t u r a li z e to U .S . on the House version and
citizenship, or possibly, may established a new ‘refugee’
lose his LPR status and admission status–different
become a deportable alien from either the present
under [8 U.S.C. § 1227]. ‘ c onditional entry’ or
‘parolee’ status. This new
Respondent’s Brief at 15-16 (emphasis status will end after only
added). The Government then presents one year–rather than two
legislative history, INA provisions, ye ars–after w hich th e
implementing regulations, and two BIA refugee can adjust to
decisions that, it suggests, implicitly permanent resident status.
contemplate the termination of refugee This one year ‘refugee’
status once an alien receives lawful status would also be counted

9
 towards the five-year period Finally, the Government looks to
required for naturalization. two BIA decisions, neither of which
addresses Smriko’s argument that the
126 Cong. Rec. S3756-57 (daily ed. Feb. INA’s protections for refugees, as drafted
26, 1980). Thus, the Government argues by Congress in implementing the Protocol,
that “refugee status” was intended to be a co-exist with lawful permanent resident
conditional status, and was intended to end status and must be terminated prior to the
after one year. initiation of removal proceedings. One
decision briefly suggests, without analysis,
The Government further notes that that once a refugee adjusts to LPR status,
8 U.S.C. § 1159(a) calls for, at the end of the “former” status as a refugee does “not
one year, a refugee who has not yet provide a basis for terminating [removal]
“acquired” lawful permanent resident proceedings.” In re Bahta, 22 I. & N. Dec.
status to be “returned to the custody of the 1381, n.2 (BIA 2000). The other suggests
Service for inspection and examination,” that one in Smriko’s position–i.e., one who
id. § 1159(a), and processed “in has not had his refugee status terminated
accordance with” the removal provisions (based on a determination that he was not
of the INA unless the alien is adjudged a refugee at the time of his admission)
“admissible” at that time and can therefore under INA § 207, 8 U.S.C. § 1157, and
be “regarded as lawfully admitted,” id. § who has not been determined to be
1159(a)(2). Because § 1159(a) does not inadmissible following his examination by
reference any special procedure for an immigration officer under INA §
terminating refugee status before removing 209(a)(1), 8 U.S.C. § 1159(a)(1),–is not
one not admissible at the end of the one properly placed in exclusion proceedings.
year period, the Government argues that Matter of Garcia, 19 I. & N. Dec. 407
this provision supports the view that (BIA 1986). Neither decision addresses
refugee status is conditional and what the government terms to be Smriko’s
disappears for one who is admissible and “novel,” Respondent’s Brief at 9,
does obtain LPR status.5 argument–that the INA’s provisions
pertaining to “refugee status,” read in light

5
The Government also suggests that no
provision of the INA “confer[s] any aliens”)). Contrary to the Government’s
authority on an immigration judge to suggestion, however, Smriko only argues
engage in the sort of termination process that an IJ cannot conduct removal
proposed by Smriko before adjudicating a proceedings until his refugee status has
lawful permanent resident’s removability been terminated in accordance with the
from the United States.” Respondent’s process set forth at 8 C.F.R. § 207.9, and
Brief at 17-18 (citing 8 U.S.C. § 1227(a) does not argue that IJ’s must engage in any
(setting forth the classes of “deportable special “termination process.”

10
of Congress’s intent to implement the issue,” our role is to determine “whether
Protocol, provide extremely limited the agency’s answer is based on a
grounds for terminating his refugee status, permissible construction of the statute.”
none of which was met here. Id. (internal quotation marks omitted).

C. Discussion Although the INA is ambiguous
with respect to Smriko’s challenge and
“The first step in interpreting a Smriko has marshaled at least some
statute is to determine whether the legislative history in support of his
language at issue has a plain and proposed construction, we are without, in
unambiguous meaning with regard to the this case, an “agency answer” to examine
particular dispute in the case.” Ki Se Lee and potentially defer to. The BIA
v. Ashcroft, 368 F.3d 218, 222 (3d Cir. answered Smriko’s “novel” challenge by
2004) (internal quotation marks omitted). assigning his case to a single member who
At issue here is whether Smriko, in affirmed without opinion the decision of
becoming “regarded as lawfully admitted the IJ, whose decision therefore became
to the United States for permanent the final agency determination pursuant to
residence,” 8 U.S.C. § 1159(a)(2), lost his the agency’s affirmance without opinion
refugee status. As we have indicated, § regula tions, see 8 C .F.R . §
1159(a)(2) does not unambiguously 1003.1(e)(4)(ii). Pursuant to those
describe what happens to an alien’s regulations, “[s]uch an order approves the
refugee status once he or she becomes result reached in the decision below[, but]
“regarded as” a lawful permanent resident. does not necessarily imply approval of all
Of course, “if the intent of Congress is of the reasoning of that decision,” id.
clear . . . the court, as well as the agency,
must give effect to the unambiguously In its entirety, the IJ’s response to
e x p r e s s ed i n t e n t o f C o n g r e s s . ” Smriko’s proposed statutory construction
Coraggioso v. Ashcroft, 355 F.3d 730, 733 consisted of the following:
(3d Cir. 2004) (quoting Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 [W]hile the motion for
U.S. 837, 842-43 (1984)) (internal termination would have
quotation marks omitted). We are left been granted had th e
here, however, with Congressional intent respondent remained a
that is, at least to some degree, in conflict: refugee, the respondent
the goal of implementing the Protocol unfortunately in this case
versus, potentially, the desire to create a had adjusted his status to
“conditional” status for a single year. In that of a lawful permanent
such situations, where there is conflicting resident, pursuant to Section
legislative history and “the statute is silent 209 of the [INA, 8 U.S.C. §
or ambiguous with respect to the specific 1159]. The respondent

11
 voluntarily chose to adjust that where an “IJ offer[s] no reasoning and
his status and certainly there cite[s] no authority . . . we have no basis
are benefits and rewards in on which to conclude that the IJ’s reading
acquiring the status of a and application of [a statute is]
lawful permanent resident ‘reasonable’ and therefore entitled to
and respondent has not deference under Chevron[].” Berishaj v.
provided any precedent Ashcroft, 378 F.3d 314, 327 (3d Cir.
decisions or any other legal 2004). As in Berishaj, the IJ here offered
basis for the proposition that no analysis of the relevant statutory
a lawful permanent resident provisions or authority to which we may
also retains the status of a defer. Thus, we are left to review an IJ’s
refugee, pursuant to Section
207 [of the INA, 8 U.S.C. §
1157].
be the case.
Where, as here, the BIA has
IJ’s Op. at 2. Even assuming arguendo
affirmed without opinion the decision of
that an IJ’s decision affirmed without
the IJ, under 8 C.F.R. § 1003.1(e)(4)(ii), its
opinion pursuant to the streamlining
affirmance “approves the result reached in
regulations would otherwise be entitled to
the decision below[, but] does not
Chevron deference,6 we recently explained
necessarily imply approval of all of the
reasoning of that decision,” id. As
Aguirre-Aguirre determined that the BIA’s
6
The Supreme Court has determined case-by-case decision-making should be
that “the BIA should be accorded Chevron accorded Chevron deference, it would
deference as it gives ambiguous statutory seem to be, at the very least, an open
terms concrete meaning through a process question as to whether an IJ’s decision
o f c a s e - b y - c a s e a d j u d ic a t io n .” affirmed through the streamlining process
Aguirre-Aguirre, 526 U.S. at 425 would be entitled to Chevron deference.
(emphasis added; internal quotation marks Although the BIA has directed us to
omitted). Citing Aguirre-Aguirre, we review the IJ’s opinion in streamlined
recently stated in a dictum that “the BIA’s cases, deferring to the reasoning of an IJ
(and hence the IJ’s) interpretation of the from which the BIA would be free to
INA is subject to established principles of depart in other cases would seem highly
deference.” Coraggioso, 355 F.3d at 733 problematic. We need not resolve this
(emphasis added). Aguirre-Aguirre, issue here, however, because the IJ, as
however, did not determine that the explained above, offered no analysis or
opinion of an IJ, when affirmed without precedent to which we could defer. We
opinion by the BIA’s streamlining process, ultimately decide to remand to the BIA
is entitled to Chevron deference, and it rather than the IJ because that course is
does not necessary follow that such would required by the regulations.

12
opinion that does not analyze the statutory the number of cases having increased
interpretation issue at hand, with a single exponentially in a little over a decade.”
BIA member having issued an affirmance Dia, 353 F.3d at 235. The portion of those
without opinion that precluded the BIA regulations describing the affirmance
from providing its interpretation of the without opinion process employed here
statutory provision at issue, purportedly provides that:
pursuant to the agency’s “streamlining
regulations,” which we will describe in (i) The Board member to
detail below. whom a case is assigned
shall affirm the decision of
Smriko raises an additional the Service or the
challenge, however, to the process by immigration judge, without
which his case arrived at the Court of opinion, if the Board
Appeals without having such an agency member determines that the
answer. While he recognizes that the BIA result reached in the
acted within its authority to promulgate the decision under review was
streamlining regulations and did not, per correct; that any errors in
se, violate his Due Process rights by doing the decision under review
so, see Dia, 353 F.3d at 236-43, he argues were harmless or
that the BIA erred in its application of the nonmaterial; and that
streamlining regulations to his case. See
Berishaj, 378 F.3d at 331 (“Though the en (A) The
banc Court in Dia approved the issues on
streamlining regulations over a statutory appeal are
and Constitutional challenge, it does not squarely
follow that the regulations are not subject controlled by
to misuse and even abuse.”). He suggests e x istin g
that we may review the single Board Board or
member’s application of the streamlining federal court
regulations, and that the Board member precedent and
erred here because, under those d o n o t
regulations, his case could not have involve the
possibly qualified for streamlining. application of
precedent to a
V. novel factual
situation; or
As we recently explained in Dia,
“[t]he Attorney General promulgated the (B) The
streamlining regulations in 1999 when the factual and
Board was faced with a crushing caseload, legal issues

13
 raised on that, under any standard of review, the
appeal are not single BIA member assigned to his case
so substantial erred in subjecting it to the affirmance
that the case without opinion process described above
warrants the because the IJ’s decision was not correct,
issuance of a id. § 1003.1(e)(4)(i), her errors were not
w r i t t e n harmless, id., his case was not “squarely
opinion in the controlled” by existing Board or federal
case. court precedent, id. § 1003.1(e)(4)(i)(A),
and his case did not raise issues so
(ii) If the Board member insubstantial that a written opinion would
determines that the decision be unwarranted, id. § 1003.1(e)(4)(i)(B).
should be affirmed without
opinion, the Board shall The Government counters that
issue an order that reads as application of the above standards entails
follows: “The Board a “complicated balancing of a number of
affirms, without opinion, the factors” only comprehensible to the single
result of the decision below. Board member, and contends that it is
The decision below is, simply “not possible to devise an adequate
therefore, the final agency standard of review” for determining
determination. See 8 CFR whether there is precedent that “squarely
1003.1(e)(4).” An order controls” the present case and whether the
affirming without opinion, issues raised are “not so substantial,”
issued under authority of especially so because the regulations
this provision, shall not require the single Board member issuing a
include further explanation streamlining order to provide no
or reasoning. Such an order reasoning, see id. § 1003.1(e)(4)(ii). We
approves the result reached first address the Administrative Procedure
in the decision below; it Act’s (“APA”) “basic presumption of
does not necessarily imply judicial review. . . .” Lincoln v. Vigil, 508
approval of all of the U.S. 182, 190 (1993); see Calle-Vujiles v.
reasoning of that decision, Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003)
but does signify the Board’s (“there is a strong presumption that
conclusion that any errors in Congress intends judicial review of
the decision o f the administrative action”). We then turn to
immigration judge or the the limited category of administrative
Service were harmless or decisions committed to agency discretion,
nonmaterial. and determine whether a single Board
member’s application of the streamlining
8 C.F.R. § 1003.1(e)(4). Smriko argues regulations is such a decision.

14
A. The Availability of Judicial Review Smriko contends that the single
Board member charged with applying the
Under the APA, any “person streamlining regulations clearly failed to
suffering legal wrong because of agency follow those regulations by subjecting his
action, or adversely affected or aggrieved case to the affirmance without opinion
by agency action within the meaning of a process without the regulatory criteria for
relevant statute, is entitled to judicial doing so having been met. He insists that
review.” 5 U.S.C. § 702. Decisions of the this erroneous application of the
BIA are agency actions within the meaning regulations is judicially reviewable under
of the APA. 5 U.S.C. § 701(b)(1). The the APA as interpreted by the Supreme
only exceptions to this general rule are Court in I.N.S. v. Yueh-Shaio Yang, 519
situations in which “(1) statutes preclude U.S. 26 (1996). The Court there held in
judicial review; or (2) agency action is the context of a review of BIA action:
committed to agency discretion by law.” 5
U.S.C. § 701(a). Where the governing Though the agency’s
statute provides for “special statutory discretion is unfettered at
review ,” as does § 242 of the INA, 8 the outset, if it announces
U.S.C. § 1252, that is the form that the and follows–by rule or by
required judicial review will take. 5 settled course of
U.S.C. § 703. Under the INA, in a d j u d i ca tion–a ge ne r a l
reviewing a final order of removal policy by which its exercise
pursuant to 8 U.S.C. § 1252, the Court of of discretion w ill be
Appeals may “review . . . all questions of governed, an irrational
law and fact, including interpretation and departure from that policy
application of constitutional and statutory (as opposed to an avowed
provisions, arising from any action taken alteration of it) could
or proceeding brought to remove an alien constitute action that must
from the United States. . . .” Id. § be overturned as “arbitrary,
1252(b)(9) (emphasis added). Similarly, capricious, [or] an abuse of
Section 704 of the APA provides: “A discretion” with in the
preliminary, procedural, or intermediate meaning of the
agency action or ruling not directly Administrative Procedure
reviewable is subject to review on the Act, 5 U.S.C. § 706(2)(A).
review of the final agency action.” 5
U.S.C. § 704. Thus, our review of a final Yueh-Shaio Yang, 519 U.S. at 32.
agency action, generally speaking,
encompasses all of a petitioner’s Based on Yueh-Shaio Yang and the
contentions of legal error by the agency at APA, it seems clear that we have
any stage of the agency’s proceedings. jurisdiction to review the here challenged
application of the streamlining regulations

15
so long as the INA does not preclude that Given that the INA clearly does not
judicial review and the issues so presented preclude review, we now turn to whether
are not committed to agency discretion. 7 the relevant issues are committed to
agency discretion by law.

7 B. Actions Committed to an Agency’s
In Marcello v. Bonds, 349 U.S. 302,
Discretion
309-10 (1955), the Supreme Court
determined that the hearing provisions of
Section “701(a)(2) [of the APA]
the APA do not apply to agency hearings
makes it clear that ‘review is not to be had’
conducted pursuant to the INA. See
in those rare circumstances where the
Ardestani v. I.N.S., 502 U.S. 129, 133-34
relevant [law] ‘is drawn so that a court
(1991) (“[In Marcello, we] held that the
would have no meaningful standard
INA expressly supersedes the hearing
against which to judge the agency’s
provisions of the APA in light of the
exercise of discretion.’” Lincoln, 508 U.S.
background of the 1952 immigration
at 190-91 (quoting Heckler v. Chaney, 470
legislation, its laborious adaptation of the
U.S. 821, 830 (1985)). The Government
[APA] to the deportation process, the
insists that the situation before us is one of
specific points at which deviations from
those “rare circumstances,” likening an
the [APA] were made, the recognition in
individual Board member’s decision on
the legislative history of this adaptive
whether to direct that a written merits
technique and of the particular deviations,
decision on an alien’s appeal be issued to
and the direction in the statute that the
the role of an agency accorded absolute
methods therein prescribed shall be the
discretion in determining whether to
sole and exclusive procedure for
institute enforcement proceedings, see
deportation proceedings.”) (internal
Heckler, 470 U.S. at 831 (“an agency’s
quotation marks omitted). As the
decision not to prosecute or enforce,
government tac itly a cknow ledges,
whether through civil or criminal process,
however, “[a]lthough the detailed hearing
is a decision generally committed to an
procedures specified by the APA do not
agency’s absolute discretion”). Heckler
apply to hearings under the [INA], see
involved the Food and Dru g
Marcello[], the judicial review provisions
Administration’s (“FDA”) decision to
do, see Shaughnessy v. Pedreiro, 349 U.S.
refrain from instituting enforcement
48, 75 S.Ct. 591, 99 L.Ed. 868 (1955).”
proceedings with respect to drugs used in
I.N.S. v. Doherty, 502 U.S. 314, 330
administering lethal injections. The
(1992) (Scalia, J., concurring and
Supreme Court determined that there was
dissenting). As Yueh-Shaio Yang holds,
“no law to apply” in the Federal Food,
the judicial review provisions of the APA,
5 U.S.C. § 706(2)(A), apply to decisions of
the BIA on issues not committed to agency
discretion. Yueh-Shaio Yang, 519 U.S. at 32.

16
Drug, and Cosmetic Act against which a These criteria are clearly intended
court could review the FDA’s decision not to require the single BIA member to
to bring enforcement proceedings. Id. at determine whether the correct outcome
830-31. was reached and, if so, whether a Board
opinion would have significant value in
Under the streamlining regulations, the context of an appeal of the matter or in
in contrast, in order to affirm without an the context of other matters yet to be
opinion, several specific criteria must be adjudicated. We agree with the Tenth
met: (1) the “result reached in the decision Circuit Court of Appeals that “they have
under review [must be] correct;” (2) any nothing to do with the BIA’s caseload or
“errors in the decision under review [must other internal circumstances.” Batalova v.
be] harmless or nonmaterial; and (3) “(A) Ashcroft, 355 F.3d 1246, 1253 (10th Cir.
[t]he issues on appeal [must be] squarely 2004); see also Denko v. I.N.S., 351 F.3d
controlled by existing Board or federal 717, 732 (6th Cir. 2003) (“the size of the
court precedent and . . . not involve the BIA’s caseload–a factor which the Board
application of precedent to a novel factual may be better equipped to assess–has no
situation” or “(B) [t]he factual and legal relevance in deciding which cases are
issues raised on appeal [must be] not so appropriate for summary affirmance”).
substantial that the case warrants the Rather, these criteria present “the kinds of
issuance of a written opinion in the case.” issues [courts] routinely consider in
8 C.F.R. § 1003.1(e)(4)(i). All three of reviewing cases,” Batalova, 355 F.3d at
these criteria must be met in order for a 1253, and provide amply sufficient “law”
case properly to be streamlined.8 for courts to apply. The fact that they may
require the exercise of some discretion on
the part of the single BIA member that
8 may be deserving of some deference is, of
Heckler also noted that at issue there
course, not relevant; the APA expressly
was the reviewability of an agency’s
authorizes review of the exercise of
refusal to exercise its powers, as opposed
discretion for abuse.
to where, as here, an agency has exercised
its coercive power over an individual. See
The government’s insistence that §
Heckler, 470 U.S. at 832 (“[W]e note that
1003.1(e)(4)(i) requires a single BIA
when an agency refuses to act it generally
member to assess the availability of
does not exercise its coercive power over
agency resources is based upon subsection
an individual’s liberty or property rights,
B and its reference to whether the “issues
and thus does not infringe upon areas that
raised upon appeal are not so substantial
courts often are called upon to protect.
that the case warrants the issuance of a
Similarly, when an agency does act to
enforce, that action itself provides a focus
for judicial review, inasmuch as the
agency must have exercised its power in some manner.”) (emphasis in original).

17
written opinion,” id. § 1003.1(e)(4)(i)(B). will be assigned to a three member panel
However, this language focuses upon the for disposition. If the case is more
lack of importance of the issues, not significant than an (e)(4) case and less
backlog and the availability of resources to significant than an (e)(6) case, the single
produce an opinion. Moreover, the BIA member will decide the merits of the
government’s argument ignores the fact appeal by himself and issue “a brief order,
that § 1003.1(e)(4)(i) is only one part of an affirming, modifying or remanding” under
overall case management system that is § 1003.1(e)(5). In short, the regulations do
based solely on the correctness of the not call upon single BIA members to
result and the institutional value that an evaluate the resources available at a
opinion would have. Under subsection particular time. Rather, the regulations
1003.1(e), a single BIA member who is themselves allocate whatever decision-
assigned a case “shall” do one of three making resources the agency has, calling
things. If the result is correct and the upon single BIA members to follow the
institutional value of an opinion would be criteria contained in the regulations for
so low that the criteria of (e)(4) are met, he allocating those resources.
must affirm without opinion. On the other
hand, if the case presents one of the Nor are we impressed with the
c i r c u m s ta n c e s e n u m e r a t e d in § gove r n m e nt’ s sugg estion th at §
1003.1(e)(6), all relating to the
institutional value of an opinion,9 the case
immigration judge or the
Service that is not in
9
Subsection (e)(6) provides: conformity with the law or
Panel Decisions. Cases may with applicable precedents;
only be assigned for review (iv) The need to
by a three-member panel if r e s o lv e a c a s e or
the case presents one of c o n t r o v e r s y of m ajo r
these circumstances: national import;
(i) The need to settle (v) The need to
inconsistencies among the review a clearly erroneous
r u li n g s o f di f f e r en t factual determination by an
immigration judges; immigration judge; or
(ii) The need to (vi) The need to
establis h a p r e c e d e nt reverse the decision of an
construing the meaning of immigration judge or the
l a w s , r e g u l a t i o n s, o r Service, other than a
procedures; reversal under §
(iii) The need to 1003.1(e)(5).
review a decision by an 8 C.F.R. § 1003.1(e)(6).

18
1003.1(e)(4)(ii) precludes a single BIA standard against which to judge the
member from explaining his or her agency’s exercise of discretion.” Heckler,
decision to streamline and that this 470 U.S. at 830.10
somehow deprives a reviewing court of
law to apply. First, reading this section in
context, we understand it to preclude any 10
See Haoud v. Ashcroft, 350 F.3d 201,
explanation of the member’s reason for
206 (1st Cir. 2003) (“the Board’s own
affirming the IJ’s decision so that the IJ’s
regulation provides more than enough
decision will stand alone as the final
‘law’ by which a court could review the
agency decision. We do not read it as
Board’s decision to streamline”); Denko,
precluding comment regarding the
351 F.3d 717 at 731 (“this argument for
decision to streamline, and there may be
committing this decision [to streamline] to
rare situations in which the member might
the agency’s discretion is doubtful because
find it helpful to file brief comments on
there are judicially manageable standards
this subject. More importantly, however,
available to a reviewing court”); Chen v.
the law to be applied is provided by the
Ashcroft, 378 F.3d 1081, 1086-87 (9th Cir.
criteria of the regulations, and it will be the
2004) (review ing “w hethe r either
rare case, indeed, where the reviewing
subsection” of the streamlining regulations
court, having received the administrative
applied to alien’s administrative appeal,
record and the briefs of the parties, will
a nd r e ma nding bec a use “ ne ith er
have any difficulty, without more, reaching
subsection (A) nor subsection (B) of the
a decision as to whether the member was
streamlining regulation permit[ted]
so wide of the mark in applying those
summary affirmance” where alien raised
criteria that his action can be characterized
“a novel legal and factual issue”);
as arbitrary and capricious.
Batalova, 355 F.3d at 1252-53 (10th Cir.
2004) (criteria in streamlining regulations
We hold that the issues addressed
address “the kinds of issues we routinely
by single BIA members under §
consider in reviewing cases, and they have
1003.1(e)(4)(i) of the streamlining
nothing to do with the BIA’s caseload or
regulations are not committed to agency
other internal circumstances”). But see
discretion and that the resolutions of those
Ngure v. Ashcroft, 367 F.3d 975, 987 (8th
issues are judicially reviewable.
Cir. 2004) (concluding that “[l]ike other
decisions committed to agency discretion
C. The Approach of Other Courts
by law, th e BIA ’s stream lining
determination involves a complicated
All but one of the other Circuit
balancing of a number of factors which are
Courts that have addressed the issue have
peculiarly within its expertise, including
agreed or suggested that the affirmance
the size of the BIA’s caseload and the
without opinion regulations contain
limited resources available to the BIA”)
sufficient “law” to provide a “meaningful
(internal quotation marks and citations

19
 The Eighth Circuit in Ngure parted In support of this view, Ngure
company from the majority approach quoted from the D.C. Circuit’s decision in
largely based upon its interpretation of the Pad ula . The r e , f ac e d w ith a
“not substantial” third factor found in the pronouncement from the Director of the
affirmance without opinion regulations. Federal Bureau of Investigation (“FBI”)
Ngure determined that “[w]hether a regarding the FBI’s hiring policy with
particular case ‘warrants the issuance of a respect to homosexuals and other letters
written opinion’ is necessarily a function written by FBI personnel to law schools
of the BIA’s limited resources at a regarding that policy, the D.C. Circuit set
particular point in time, and the views of forth the above maxim that these types of
members of the BIA as to whether those “agency statements” would only be
limited resources should be dedicated to “transformed into a binding norm if so
writing an opinion in a given case.” intended by the agency.” Padula, 822
Ngure, 367 F.3d at 986. As we have F.2d at 100. While Padula understandably
indicated, we respectfully disagree with looked to agency intent only to determine
this view. whether an informal statement by an
agency constituted a “binding norm” such
Ngure also gave considerable that departure from that statement could
weight to the legal proposition that an “an amount to arbitrary and capricious action,
agency pronouncement is transformed into Ngure extended its use of agency intent to
a binding norm if so intended by the also look at whether an agency intended
agency, and agency intent, in turn, is for a formal regulation to be binding upon
ascertained by an examination of the its officers. This use of agency “intent” in
statement’s language, the context, and any promulgating regulations would seem to
available extrinsic evidence.” Ngure, 367 turn on its head the “basic presumption of
F.3d at 982 (quoting Padula v. Webster, judicial review” embodied in the APA,
822 F.2d 97, 100 (D.C. Cir. 1987)) Lincoln, 508 U .S. at 190, the maxim that
(internal quotation marks, citations, and agency regulations “have the force of
alterations omitted; emphasis added). That law,” Marshall v. Lansing, 839 F.2d 933,
is, Ngure suggested that whether an 943 (3d Cir. 1988), and the requirement
agency intended for its own compliance that “regulations validly prescribed by a
with its regulation to be judicially government administrator are binding
reviewable is relevant to whether an upon him as well as the citizen,” Service v.
agency’s action in applying that regulation Dulles, 354 U.S. 363, 372 (1957). See
is committed to agency discretion under Vitarelli v. Seaton, 359 U.S. 535, 539-40
the APA. (1959) (applying Dulles); see also Webster
v. Doe, 486 U.S. 592, 602 n.7 (1988)
(“[an] Agency’s failure to follow its own
regulations can be challenged under the
APA”). If we routinely begin to look to an
omitted).

20
agency’s intent (with respect to whether its timely dispositions, but do not affect the
own compliance with its regulations validity of any decision issued by the
should be subject to judicial review) in Board and do not, and shall not be
promulgating regulations, as Ngure would interpreted to, create any substantive or
have us do, we may well find that agencies procedural rights enforceable before any
never desire judicial review, and would immigration judge or the Board, or in any
rather be left unchecked in the exercise of court of law or equity.” 8 C.F.R. §
their powers. 1003.1(e)(8)(vi) (emphasis added). Thus,
the regulations specifically contemplate
Contrary to Ngure’s suggestion, we that the Board’s compliance with
do not read American Farm Lines v. Black provisions establishing time limits for the
Ball Freight Service, 397 U.S. 532 (1970), adjudication of appeals will not be subject
as abandoning the Supreme Court’s long- to judicial review. No similar statement is
standing requirement–evidenced in Dulles, made with respect to an individual Board
Vitarelli, and Webster–that an agency member’s application of the affirmance
comply with its own regulations. We note, without opinion regulations under 8 C.F.R.
however, that even assuming arguendo § 1003.1(e)(4), thus undermining the
that courts should look to an agency’s notion that the agency did not “intend” for
“intent” to allow for judicial review in judicial review of the affirmance without
promulgating a regulation, it is doubtful opinion procedure.
that the agency here sought to preclude a
Board member’s application of the D. Review of the Decision To Affirm
streamlining regulations from judicial Without Opinion
review. A careful review of the
streamlining regulations indicates that they Having concluded that the decision
specifically contemplate Board members to streamline is judicially reviewable, the
being governed by the ag en cy’s correct disposition of the merits of the
regulations. See 8 C.F.R. § 1003.1(d)(1)(i) petition to review is clear. The issue
(“The Board shall be governed by the Smriko presents is not “squarely controlled
provisions and limitations prescribed by by existing Board or federal court
applic able law , regulations, a nd precedent.” Nor, we conclude, can that
procedures. . . .”). The regulations then issue be disregarded as legall y
indicate that with respect to, for example, insubstantial. As the Government
one aspect of the case management system acknow ledges, “Smirko’s [proposed
involving the time limits within which a statutory constructions], if accepted as a
Board member is expected to adjudicate an correct interpretation of the statutory
administrative appeal, “[t]he provisions [of scheme, could upset final removal orders
the regulations] establishing time limits for that have been entered against thousands
the adjudication of appeals reflect an of criminal aliens . . . ,” as well as affect
internal management directive in favor of the outcome of thousands of proceedings

21
yet to come. Given this fact, together with of substantial importance. It is foreseeable
the fact that Smriko’s argument is both that there will be a number of situations
plausible and not directly contradicted by like the one before us in which an arbitrary
statutory text, regulations, or relevant and capricious decision to streamline will
precedent, we have no choice but to hold the potential for distorting the judicial
conclude that this decision to streamline review that both the regulations and
was arbitrary and capricious. Congress contemplated. When that is the
case, a remand for further BIA
VI. proceedings is appropriate.

In many situations where a petition In Haoud, for example, the First
for review challenges a streamlining Circuit granted a petition for review
decision, that decision will have no because the affirmance without opinion
material impact on a court’s exercise of its process had been used “to deny [the
judicial review function. In most, it will Court’s] legitimate review power [because
be readily apparent that the decision is not the Court was] left without a proper basis
arbitrary or capricious. In many, the to . . . evaluate the Board’s own critical
reviewing court may simply choose to analysis,” Haoud, 350 F.3d at 205. Haoud
address the merits of the IJ’s decision had presented to the Board a recent BIA
without resolving the procedu ral case that was seemingly indistinguishable
challenge.11 Nevertheless, we believe the from his own wherein the IJ had reached a
decision we here make on reviewability is contrary result, yet the Board affirmed the
IJ’s determination in his case without
opinion. The First Circuit remanded
11 because the affirmance without opinion
The Seventh Circuit Court of Appeals
prevented the BIA from “fully explain[ing
has suggested, correctly it would seem,
why it] reasonably depart[ed] from its own
that, with respect to many cases that are
precedent,” id. at 207, in violation of the
improperly streamlined, “it makes no
settled maxim that “[a]dministrative
practical difference whether the BIA
agencies must apply the same basic rules
properly or improperly streamlined
to all similarly situated supplicants,” id. at
review.” Georgis v. Ashcroft, 328 F.3d
207 (citation omitted).
962, 967 & n.4 (7th Cir. 2003); see also
Denko, 351 F.3d 717, 732 (6th Cir. 2003)
Similarly, the Fifth Circuit recently
(agreeing with the Seventh Circuit that
remanded a streamlined case to the BIA
“for many streamlined cases” it makes “no
where the IJ had suggested multiple
practical difference” whether the BIA
grounds for denying relief, one of which,
improperly streamlined review). If the IJ’s
if selected as the reason for affirmance by
decision is incorrect, the Court of Appeals
the BIA, would have denied an alien’s
can simply reach the merits of that
asylum application as untimely and would
decision and reverse.

22
have prevented the Court of Appeals from having provided its Chevron deference-
exercising jurisdiction. Zhu v. Ashcroft, entitled “concrete meaning” to an
___ F.3d ___, ___, 2004 WL 1854553, *5- ambiguous statute.12 The present case
*6 (5th Cir. Aug. 19, 2004). The Court demonstrates that arbitrary and capricious
determined that the BIA’s use of the application of the streamlining regulations
affirmance without opinion procedure can result in building case law that is
under such circumstances created a fashioned without the benefit of agency
“jurisdictional conundrum” in that it expertise.
prevented the Court from “knowing
whether the BIA affirmed the IJ’s decision Here, Smriko presented a plausible
on a non-reviewable basis, e.g., reading of the INA to the Board, raising a
untimeliness, or a reviewable basis, e.g., substantial and important issue of refugee
the merits of Zhu’s asylum claim.” Id. law. Despite the absence of precedent
The Court remanded so that the BIA could “squarely controlling” Smriko’s argument,
indicate whether relief was denied based Smriko’s case was erroneously affirmed
upon untimeliness (which would destroy without opinion. That error then prevented
the court’s jurisdiction under an applicable the Board from offering its expert opinion
statute) or on the merits of the asylum on the novel statutory construction issue
application (which would allow the court now before us. Rather than usurping the
to exercise jurisdiction and reach the role of the BIA and establishing a
merits of the alien’s claim). precedent that the Board’s expertise might
counsel against, we now grant the petition
Where, as here, an important for review in light of the streamlining
portion of the statutory scheme can be read error. The Board’s decision will be
to produce materially different results, vacated, and, given the “need to establish
proper application of the streamlining
regulations is essential. We are required
to “accord[] Chevron deference [to the 12
One might argue, we suppose, that the
BIA] as it gives ambiguous statutory terms
individual Board member’s decision to
‘concrete meaning through a process of
issue an affirmance without opinion was
case-by-case adjudicatio n.’”
an “implicit” rejection of Smriko’s
Aguirre-Aguirre, 526 U.S. at 425 (quoting
proposed statutory construction in favor of
Cardoza-Fonseca, 480 U.S. at 448-49). If,
another construction. However, the Board
as happened here, an individual Board
member’s decision to issue an affirmance
member arbitrarily and capriciously
without opinion, in and of itself, is not a
streamlines a case where no Board or
substitute for the kind of analysis of the
binding precedent accepts or rejects an
relevant statutes, regulations, or legislative
alien’s plausible interpretation of an
history, that would be required in order to
ambiguous statute, we are then left to
afford Chevron deference. See Berishaj,
interpret the statute without the BIA
378 F.3d at 327.

23
a precedent construing the meaning of,” 8
C.F.R. § 1003.1(e)(6)(ii), the INA in this
context, we will remand the matter for
further proceedings before a three member
panel of the Board.

SMRIKO V. ASHCROFT - NO. 03-1085

LAY, Circuit Judge, concurring.
I fully concur in Judge Stapleton’s
well-reasoned opinion. I write separately
to point out that I have participated in two
Eighth Circuit cases, i.e., Wolde v.
Ashcroft, 2004 WL 1759141 (8th Cir.
2004) (non-published), and Loulou v.
Ashcroft, 354 F.3d 706 (8th Cir. 2003),
which follow the Eighth Circuit’s opinion
of Ngure v. Ashcroft, 367 F.3d 975 (8th
Cir. 2004). In Ngure, the Eighth Circuit
has stated that the Board of Immigration
Appeals’ decision to issue an affirmance
without opinion was not subject to judicial
review. I believe that the analysis by
Judge Stapleton in the instant case is the
correct analysis and I write solely to
explain my reason for joining his opinion
rather than adhering to the opinion in
Ngure.

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