dissenting:
In concluding that the INS was required to provide appellant with an asylum hearing before an immigration judge, the majority misinterprets the statute in force at the time of appellant’s asylum application. That statute read:
The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum. ...
8 U.S.C. § 1158(a) (1994) (emphases added). The majority interprets the statutory phrase “a procedure” to mean “one and the same procedure,” and the phrase “an alien ... irrespective of such alien’s status” to mean “all aliens ... irrespective of their statuses.” The majority thus holds that, under the statute, the Attorney General was required to provide the same procedure for all aliens, and that, by allowing only aliens entitled to an exclusion or deportation hearing to have their asylum claims heard before an immigration judge, see 8 C.F.R. § 208.2(b) (1994), and all other aliens to have their claims heard only before an asylum officer, see id. § 208.9(a), the Attorney General violated her statutory obligation.
The majority offers no explanation for this interpretation; instead,it simply asserts, in ipse dixit, that the “proper interpretation” of this provision requires a “single procedure” for “all applicants.” Ante at 343. From its “note” and emphases, see id. at 343, the majority appears to believe that its interpretation is compelled because Congress employed in the statute the singular “procedure,” rather than the plural “procedures,” although the majority’s thinking is less than clear because it ultimately directs our attention not so much to Congress’ usage of the singular (as its emphases forecast that it would do) but instead to the definition of “procedure”—a definition which (like the also-recited definition of “status”) has no evident bearing on the question of whether multiple procedures are permissible under the statute. If this were the majority’s belief, then it would seem fairly obviously incorrect. That Congress directed the Attorney Gen*347eral to establish “procedure” rather than “procedures” for aliens to apply for asylum is no evidence at all that Congress intended that the identical procedure be established for all aliens — as the majority’s dictionary definition of “procedure,” which is utterly neutral as to the word’s singularity or plurality, confirms. If Congress had instructed the Attorney General to “establish procedures for an alien ... to apply for asylum,” I am confident that the majority would not, because of that pluralization, interpret the statute differently so as to permit different procedures for different classes of aliens.
Presumably, then, the majority actually believes that its interpretation is compelled not because Congress. used the singular word “procedure,” but rather because Congress required the Attorney General to establish “a procedure,” rather than “procedures.” See ante at 343 (apparently drawing inference from use of the singular phrase “a procedure” that Congress obligated the Attorney General to establish “a single procediere for asylum claims that apply to all applicants without distinction.”); id. at 344 (asserting that section 1158(a) “directs the Attorney General to establish a ‘procedure’ for asylum claims”(emphasis added)). If one were, as the majority almost certainly has done, to read the phrase “a procedure” in isolation from the remainder of the provision (and in contrast to the plural “procedures”), it would not be wholly implausible to conclude that a single procedure is mandated. However, if one parses the entire statute as finely as the majority unsuccessfully attempts to parse only the one phrase “a procedure,” it is apparent that Congress did not mandate the same procedure for all aliens applying for asylum, but rather that it mandated only “a procedure” — that is, some unspecified type of procedure — ■ for “an alien[,] ... irrespective of suck alien’s status” — that is, for each alien. In other words, because Congress used both the indefinite, singular phrase “a procedure” and the indefinite, singular phrase “an alien,” it necessarily required only that some procedure be available for each alien; it did not require that the identical procedure be available for all aliens (as would arguably be the case if Congress used the singular “procedure” and the plural “aliens”), or that several procedures be available for each alien (as would arguably be the case if Congress used the plural “procedures” and the singular “alien”), or that several and the same procedures be available for all aliens (as would arguably be the case if Congress used the plural “procedures” and the plural “aliens”). If the majority had parsed the entire provision, and in particular had considered Congress’ use of the indefinite singular phrase “an alien” (not to mention the related singular phrase “such alien’s status”), I have to think the majority would have agreed that Congress never intended to require the Attorney General to establish the identical procedure for all aliens seeking asylum. But at the very least it would have realized that it could not possibly reach the conclusion that it does by invoking the reasoning that it does herein.
That the majority has fundamentally erred in its interpretation of the statute need not be the subject of conjecture: in the very passage in which it summarizes its understanding of the statute, the majority states, in obvious but mistaken belief that it is simply reciting the language of the statute, that section 1158(a) “mandate[s] that the Attorney General establish an asylum procedure applicable to all aliens irrespective of status.” Ante at 344 (emphases added); see also id. at 345 (stating, again in error, that section 1158(a) “allows aliens, irrespective of ‘status,’ to apply for asylum”). Of course, the statute does not require the Attorney General to establish “an asylum procedure” for “all aliens,” but rather “an asylum procedure” for “an alien” — and not even this, “irrespective of status,” but rather “irrespective of such alien’s status.” The majority’s misreading of the statute could hardly be plainer.
*348Having been offered no reason to do otherwise by the majority, I would simply read the statute, as it is written, to require only that the INS make some type of procedure — not necessarily the same procedure — available to each alien in order that his asylum claim might be heard. Not only is this the plain-language interpretation of section 1158(a), but it is the interpretation that common sense tells one that Congress intended in this statute. Congress’ intent was manifestly to ensure that no alien was without a procedure for applying for asylum, not that every alien be provided the same procedure.
The majority’s reading of section 1158(a) has few implications beyond the instant case, because a provision of IIRIRA, not applicable to this case but now in effect, requires the INS to provide all asylum applicants with a hearing before an immigration judge. See 8 U.S.C. § 1225(b)(l)(B)(iii)(III). Of greater concern, however, is the majority’s unwillingness to distinguish between two entirely unrelated inquiries: whether the INS was required to provide appellant with an immigration judge as a matter of statutory interpretation, and whether the INS was required to do so as a matter of constitutional due process. The majority confuses and thus conflates these two separate inquiries, as the following sequential sentences of the majority’s opinion amply demonstrate:
[The dual-track procedure] violates section 1158(a), which allows aliens, irrespective of “status,” to apply for asylum and directs the Attorney General to establish a “procedure” for asylum claims.
The government maintains, however, that Selgeka waived his constitutional claim.
Ante at 344 (emphases added).
I am confident that the INS’ decision not to afford appellant an asylum hearing before an immigration judge did not deprive appellant of any constitutional rights. For its contrary conclusion, the majority provides no serious constitutional analysis, but instead simply makes a series of bald assertions: first, that appellant’s failure to exhaust his constitutional claims before the BIA was excused because he did not knowingly and voluntarily waive those claims (on the ground that there was no affirmative evidence of such a waiver in the record, beyond his failure to raise the claim despite his representation by experienced counsel); second, that appellant’s failure to exhaust was excused because it would have been futile to raise such claims before the BIA (on the ground that the BIA “consistently” rejects the claims of stowaways); and third, that appellant’s due process rights were violated (on the ground that “[a]n interview is hardly the forum to adjudicate human rights”). It seems to me that, in this circumstance, to recite the majority’s constitutional analysis is sufficient to expose it for its inadequacy.
I respectfully dissent.