UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2002
(Argued: May 22, 2003 Decided: March 24, 2004)
No. 02-4395
Y U S HENG Z HANG,
Petitioner,
— V.—
U NITED S TATES D EPARTMENT OF J USTICE,
A TTORNEY G ENERAL A SHCROFT,
Respondent.
Before:
S TRAUB, B.D. P ARKER, and R AGGI, Circuit Judges.
Petition for review of an order of the Board of Immigration Appeals summarily
affirming an Immigration Judge’s denial of Zhang’s application for asylum and withholding
of removal.
Petition for review DENIED.
BRUNO JOSEPH BEMBI, Hempstead, New York, for Petitioner.
MICHAEL M. KRAUSS, Assistant United States Attorney, Southern District
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of New York (James B. Comey, United States Attorney; Kathy S.
Marks and Jeffrey S. Oestericher, Assistant United States Attorneys, of
counsel), New York, New York, for Respondent.
P ER C URIAM.
Yu Sheng Zhang, a citizen of China, petitions for review of the July 22, 2002 decision
of the Board of Immigration Appeals (“BIA” or “Board”) summarily affirming an
Immigration Judge’s (“IJ”) denial of his application for asylum and withholding of removal.
Zhang claims he fled China in 1993, leaving his pregnant wife and child behind, to escape
persecution for violation of China’s oppressive birth control policies. After a full hearing,
the IJ denied Zhang’s application, finding him not credible because his testimony was
“neither consistent nor . . . plausible as to certain salient and core issues.” Decision Tr. at 6.
The BIA, using “streamlined” review procedures, see 8 C.F.R. § 3.1(a)(7)(ii) (2002)
(recodified at 8 C.F.R. § 1003.1(a)(7)(ii) (2003)), affirmed the IJ’s decision without opinion,
and this timely petition for review followed.
Zhang asserts that the BIA, by having a single Board member summarily affirm the
IJ’s decision in his case, abused its discretion and denied him due process. He further argues
that the IJ’s credibility findings were not grounded in the record and, in any event, he is
entitled to asylum as an individual subjected to a pattern and practice of persecution. We
here address Zhang’s due process challenge and conclude it to be without merit. By separate
summary order also filed today, we reject Zhang’s remaining arguments. Accordingly, the
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petition for review is denied.
I. The Streamlined Review Procedures
Until 1999, BIA practice was to review all appeals from IJ decisions in three-member
panels. See 8 C.F.R. § 3.1(a)(1) (1999). In response to statistics showing that appeals and
motions to the BIA had increased more than nine-fold between 1984 and 1999, to some
28,000 per year, the BIA promulgated streamlined review procedures. See Executive Office
for Immigration Review: Board of Immigration Appeals Streamlining, 64 Fed. Reg. 56,135,
56,135-36 (Oct. 18, 1999); see generally Dia v. Ashcroft, 353 F.3d 228, 235 (3d Cir. 2003)
(en banc) (detailing background to streamlining regulations); Denko v. INS, 351 F.3d 717,
727, 730 n.10 (6th Cir. 2003) (same). Under these regulations, appeals to the BIA can be
resolved by a single Board member who may summarily affirm an IJ’s decision if he
determines that the result reached by the IJ is correct and further concludes that: (1) any
errors in the IJ’s reasoning are either harmless or nonmaterial, and (2) the issue on appeal is
either squarely governed by controlling precedent or too insubstantial to warrant full review
by a three-member panel. See 8 C.F.R. § 3.1(a)(7)(ii) (2002). When the BIA summarily
affirms an IJ’s decision, the regulations provide for its order to state simply: “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).” Id. § 3.1(a)(7)(iii). That is, in fact,
the extent of the BIA’s decision in Zhang’s case. Notably, the regulations specify that
summary affirmance “does not necessarily imply approval of all of the [IJ’s] reasoning;” it
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signifies only that the BIA “approves the result reached in the decision below” and finds any
errors by the IJ “harmless or nonmaterial.” Id.
II. Due Process Challenge to Streamlining Procedures
Zhang asserts that the BIA’s failure to “address the record” in deciding his appeal
deprived him of “meaningful administrative review” in violation of due process. Zhang Br.
at 51. Our sister circuits, presented with similar due process challenges to the BIA
streamlining regulations, have uniformly rejected them. See Yuk v. Ashcroft, 355 F.3d 1222,
1229-32 (10th Cir. 2004); Loulou v. Ashcroft, 354 F.3d 706, 708-09 (8th Cir. 2003); Dia v.
Ashcroft, 353 F.3d at 238-45; Denko v. INS, 351 F.3d at 725-30; Falcon Carriche v.
Ashcroft, 350 F.3d 845, 849-52 (9th Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962, 966-67
(7th Cir. 2003); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1288-89 (11th Cir. 2003);
Soadjede v. Ashcroft, 324 F.3d 830, 831-33 (5th Cir. 2003); Albathani v. INS, 318 F.3d 365,
375-79 (1st Cir. 2003); see also Khattak v. Ashcroft, 332 F.3d 250, 252-53 (4th Cir. 2003)
(rejecting argument that streamlining regulations are “impermissibly retroactive”). We now
join these courts in holding that the streamlining regulations’ provision for summary
affirmance of IJ decisions by a single Board member does not deprive an asylum applicant
of due process.
Preliminarily, we observe that an alien’s right to an administrative appeal from an
adverse asylum decision derives from statute rather than from the Constitution. See Dia v.
Ashcroft, 353 F.3d at 242; Albathani v. INS, 318 F.3d at 376; see also Guentchev v. INS, 77
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F.3d 1036, 1037 (7th Cir. 1996) (“The Constitution does not entitle aliens to administrative
appeals. . . . The Attorney General could dispense with the Board and delegate her powers
to the immigration judges, or could give the Board discretion to choose which cases to
review . . . .”). Even a criminal defendant has no constitutional right to appeal: “[t]he
existence of his right to appeal and the parameters of that right find their roots in statutes and
rules.” Furman v. United States, 720 F.2d 263, 264 (2d Cir. 1983) (per curiam); see also
Abney v. United States, 431 U.S. 651, 656 (1977).
Various sections of the Immigration and Nationality Act indicate that Congress did
contemplate some form of appellate review of IJ decisions by the BIA. For example, 8
U.S.C. § 1101(a)(47) provides that an order of deportation is not “final” until either the BIA
has passed on it, or the time for seeking BIA review has expired. Further,
§ 1158(d)(5)(A)(iii) - (iv) provides time limits for filing and resolving administrative appeals,
and § 1229a(c)(4) provides for aliens to be informed of their right to appeal removal orders.
Otherwise, however, Congress was silent as to the manner and extent of any administrative
appeal, leaving that determination to the Attorney General, who, in turn, has delegated this
responsibility to the BIA. See Dia v. Ashcroft, 353 F.3d at 235-37 (outlining delegation of
administrative responsibilities). Where legislation is silent as to implementation, the
Supreme Court has stated that “administrative 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.” Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.
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Council, Inc., 435 U.S. 519, 543 (1978) (internal quotation marks omitted); see also Dia v.
Ashcroft, 353 F.3d at 236-38 (holding streamlining procedures a permissible construction
of immigration law pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842-43 (1984)).
Thus, because nothing in the immigration laws requires that administrative appeals
from IJ decisions be resolved by three-member panels of the BIA through formal opinions
that “address the record,” the BIA was free to adopt regulations permitting summary
affirmance by a single Board member without depriving an alien of due process. As the
Third Circuit noted in Dia v. Ashcroft, appellate courts issue summary affirmances of district
court opinions that do not detail the underlying record without raising due process concerns.
353 F.3d at 240 n.7 (citing Furman v. United States, 720 F.2d at 264 (“There is no
requirement in law that a federal appellate court’s decision be accompanied by a written
opinion.”)).
Our conclusion that streamlining does not violate due process is, in any event,
supported by the fact that the challenged procedures are followed by further appellate
process, namely, judicial review pursuant to 8 U.S.C. § 1252. Of course, when agency action
is subject to judicial review, the law requires that the agency provide reasoned bases for its
decision. See SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947); see also Vargas v. INS,
938 F.2d 358, 360 (2d Cir. 1991) (“[W]e must consider the statement of reasons justifying
the decision to determine whether the path which the agency followed can be discerned, and
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whether the decision was reached for an impermissible reason or for no reason at all.”
(internal quotation marks and brackets omitted)). The terse BIA summary affirmances
authorized by the streamlining regulations do not themselves satisfy this requirement. But
Chenery’s mandate pertains to the agency as a whole, not to each level of agency review.
See Albathani v. INS, 318 F.3d at 377. Because the BIA streamlining regulations expressly
provide for the summarily affirmed IJ decision to become the final agency order subject to
judicial review, we are satisfied that the regulations do not compromise the proper exercise
of our § 1252 jurisdiction.1 As the Eleventh Circuit observed in Mendoza v. U.S. Attorney
General, “meaningful review of the INS’s removability determination is not precluded by the
brevity of the BIA’s summary affirmance decision because an appellate court will continue
to have the IJ’s decision and the record upon which it is based available for review.” 327
F.3d at 1289 (internal quotation marks omitted); accord Dia v. Ashcroft, 353 F.3d at 244
(holding that BIA summary affirmances “do not force us to venture ‘through the looking
glass’ (like Alice in Wonderland), because we have the IJ’s reasoning and the record
necessary to exercise our function of review”); Falcon Carriche v. Ashcroft, 350 F.3d at 851
(holding that BIA’s failure to issue opinion does not compromise due process where court
of appeals can “review the IJ’s decision directly”); Georgis v. Ashcroft, 328 F.3d at 967
(“Since we review directly the decision of the IJ when a case comes to us from [a BIA
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We note that Zhang challenges only his opportunity for “meaningful administrative review”
and does not claim that due process or other considerations require us to apply a different standard
of review to cases where the BIA has summarily affirmed under the streamlining regulations. Zhang
Br. at 51.
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summary affirmance pursuant to the streamlining regulations], our ability to conduct a full
and fair appraisal of the petitioner’s case is not compromised, and the petitioner’s due
process rights are not violated.”). Like the Third Circuit, “[w]e are unaware of any
requirement, let alone any constitutional requirement, that an agency adjudicator must
commit to writing or otherwise verbalize his or her reasoning, where, as here, the agency has
directed us to an opinion for review.” Dia v. Ashcroft, 353 F.3d at 240.
We note that even before the streamlining regulations were adopted, it had been the
rule in this and other circuits that “summary affirmance by the BIA” is permissible “when
the immigration judge’s decision below contains sufficient reasoning and evidence” to permit
proper judicial review. Arango-Aradondo v. INS, 13 F.3d 610, 613 (2d Cir. 1994); see
Denko v. INS, 351 F.3d at 728; Soadjede v. Ashcroft, 324 F.3d at 832 (citing similar
holdings by the First, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Eleventh, and D.C.
Circuits). In the pre-streamlining summary affirmances, the BIA generally adopted the IJ’s
findings and rationale; by contrast, streamlining provides for the reviewing BIA member only
to uphold the IJ’s result. The latter procedure may impose a heavier burden on the courts of
appeals, which are consequently “forced to review a decision which may or may not contain
the [actual] reasoning of the BIA.” Albathani v. INS, 318 F.3d at 377. Specifically, in cases
where the IJ has committed some error, the BIA member who decides the administrative
appeal may quite correctly determine that the error is harmless, but where no explanation is
given for this conclusion, we will not speculate as to the nature of the member’s analysis;
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neither will we “search the record independently for a basis to affirm the BIA,” Secaida-
Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). Because we may not affirm the BIA on
grounds that it did not explicitly adopt, our review will necessarily “be confined to the
reasoning of the IJ.” Id.; see also Albathani v. INS, 318 F.3d at 378 (quoting Federal 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 the order by the agency itself.”)).2
Whether the streamlining regulations will or will not add to our burden, however, is
not the issue before us. Our concern is whether streamlining deprives an alien of the process
that he is due by law. Under applicable laws and regulations, even after streamlining, an
applicant for asylum or withholding of removal remains entitled to a full hearing on his
asylum claims, a reasoned opinion from the IJ, the opportunity for BIA review, and the right
to seek relief from the courts. This is the process Zhang received. As some circuit courts
have observed, such process passes the traditional three-part due process test articulated in
Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (providing for consideration of (1) the
private interest affected by the official action; (2) the risk of an erroneous deprivation of that
2
See generally Qiu v. Ashcroft, 329 F.3d 140, 149 (2d Cir. 2003) (noting that “BIA
errors of law are not excused by the fact that a hypothetical adjudicator, applying the law
correctly, might also have denied the petition for asylum” and that “factual findings
supporting such a denial [cannot] be assumed on the basis of record evidence not relied on
by the BIA”); El Moraghy v. Ashcroft, 331 F.3d 195, 202 (1st Cir. 2003) (explaining that a
court “‘should not supplant the agency’s findings merely by identifying alternative findings
that could be supported by substantial evidence’” (quoting Arkansas v. Oklahoma, 503 U.S.
91, 113 (1992))).
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interest through the procedures used and the value of additional or substitute procedural
safeguards; and (3) the government’s interest in employing the established procedures). See
Denko v. INS, 351 F.3d at 730 n.10 (evaluating Mathews factors and finding asylum
applicant had not shown that streamlining procedures increased risk of erroneous deprivation
of her interest); Falcon Carriche v. Ashcroft, 350 F.3d at 851-52 (holding that overall
regulatory structure within which streamlining procedures fit mitigates the risk of erroneous
deprivation of applicant’s substantial interest). We agree that the streamlining regulations,
when considered in light of the hearing process that precedes them and the judicial review
that follows, do not present the sort of heightened risk of error that would implicate due
process.
III. Conclusion
In sum, we conclude that Zhang has been afforded each step of the process due by law
on his application for asylum and withholding of removal, and we reject his claim that due
process additionally requires that his administrative appeal be decided by a full opinion of
a three-member BIA panel. Accordingly, Zhang’s petition for review is DENIED.
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