concurring.
I concur in the judgment. I agree that this court lacks jurisdiction to review Petitioner Begna’s denial of asylum for failure to prove, by clear and convincing evidence, that Begna applied for asylum within one year of entering the country. See 8 U.S.C. § 1158(a)(3). Further, the record does not contain evidence sufficient to demonstrate that Begna is “more likely than not” to suffer persecution or torture were he to be removed to Ethiopia. Thus, he is not eligi*305ble for withholding of deportation pursuant to the Immigration and Nationality Act, 8 C.F.R. § 1208.16(b)(l)(B)(iii), or for protection under the Convention Against Torture, see id. at § (c)(2).
I also agree that Begna’s due process claims are without merit. It is settled that when a single Board of Immigration Appeals (BIA) member affirms, without opinion, an immigration judge’s (IJ) decision, this does not, per se, violate an asylum petitioner’s due process rights. See, e.g., Loulou v. Ashcroft, 354 F.3d 706, 708 (8th Cir.2003) (stating that the Eighth Circuit joins other “circuits in concluding the streamlined review procedure does not violate an alien’s due process rights” because an alien “has no constitutional or statutory right to an administrative appeal”), amended by 2004 U.S.App. LEXIS 8347 (8th Cir.2004). The BIA possesses authority to “streamline” its duties of review in this manner, rather than submitting every appeal to a three-member review and opinion process. See 8 C.F.R. § 1003.1(e)(4). Accordingly, the bare assertion that streamlined review violates the Due Process Clause because it “frustrates” the review process is without merit.
This does not mean, however, that streamlined review is always appropriate. The BIA’s authority to implement streamlined review is limited to cases that meet the following criteria:
(1) the individual BIA member must decide that the result reached by the IJ was correct; and
(2) the individual BIA member must decide that any errors made by the IJ, if any, were “harmless or nonmaterial”; and
(3)the issues on appeal must either be (A) “squarely controlled by existing [BIA] or federal court precedent” and must “not involve the application of precedent to a novel factual situation,” or (B) “the factual and legal issues raised on appeal” must not be “so substantial” as to warrant a written opinion.
See id. If the BIA applies streamlined review to cases falling outside of these three scenarios, then its decision to do so is subject to judicial review, and can be vacated as “arbitrary and capricious” or as an abuse of discretion pursuant to the Administrative Procedure Act (APA).2 See Smriko v. Ashcroft, 387 F.3d 279, 295 (3d Cir.2004) (citing the APA, 5 U.S.C. § 706(A)(2), and INS v. Yueh-Shaio Yang, 519 U.S. 26, 32, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996)); see also Yueh-Shaio Yang, 519 U.S. at 32, 117 S.Ct. 350 (holding that a decision by the BIA can be overturned as arbitrary and capricious, or as an abuse of discretion, where that decision makes an irrational departure from its own rules or policies).
Eighth Circuit precedent holding to the contrary is ill-reasoned and should be overturned. See Ngure v. Ashcroft, 367 F.3d 975, 983 (8th Cir.2004) (holding that the BIA’s decision to employ the streamlining procedure “is committed to agency discretion and not subject to judicial review” as a matter of law); see also Wolde v. Ashcroft, 107 Fed.Appx. 13, 2004 WL 1759141 (8th Cir.2004) (unpublished) (same); but cf. Smriko, 387 F.3d 279 (explaining why judicial review is available and rebutting the reasoning in Ngure at length).3 “All but one of the other Circuit Courts [i.e., the Eighth Circuit] that have *306addressed the issue have agreed or suggested that the affirmance without opinion regulations” are not committed to agency discretion because the application regulations “contain sufficient ‘law’ to provide a ‘meaningful standard against which to judge the agency’s exercise of discretion.’ ” Smriko, 387 F.3d at 292 (citations omitted).4
Petitioner Begna’s case presents no novel or substantial legal issues, and although he asserts that the BIA’s summary affir-mance violated his due process rights, his brief fails to identify any grounds justifying judicial review of the BIA’s summary affirmance. Accordingly, such review is not warranted in this case.
Nonetheless, I concur in order to highlight a perceived error in our jurisdiction’s precedent, and to echo the Third Circuit’s concern that it is highly “foreseeable that there will be a number of situations ... in which an arbitrary and capricious decision to streamline will hold the potential for distorting the judicial review that both the regulations and Congress contemplated.” Smriko, 387 F.3d at 296. The precedent in our jurisdiction should be modified in accordance with the majority of circuit courts.
. However, a challenge mounted against the BIA’s summary affirmance on these grounds does not, as a technical matter, implicate a petitioner’s due process rights.
. Although I joined in the Wolde decision, the Smriko case has since persuaded me that my decision was in error. See Smriko, 387 F.3d 279, passim; see also id. at 297 (concurrence by J. Lay).
. Our opinion in Ngure stated that the Fifth Circuit has, like us, “held” that the BIA’s application of streamlined procedures is not subject to judicial review as a matter of law. See Ngure, 367 F.3d at 988 n. 6 (citing Garcia-Melendez v. Ashcroft, 351 F.3d 657, 662-63 (5th Cir.2003)). However, Garcia-Melendez contains no such holding. If anything, the wording of Garcia-Melendez seems to actually obscure the difference between a challenge to streamlining procedures based on due process grounds, and a challenge to streamlining procedures based on arbitrariness or an abuse of discretion under the APA. See Garcia-Melendez, 351 F.3d at 662-63. Thus, Judge Stapleton's characterization of Ngure as an outlier was correct.