Soadjede v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 28, 2003

Charles R. Fulbruge III
Clerk
No. 02-60314
Summary Calendar

KOSSI THOMAS SOADJEDE

Petitioner

v.

JOHN ASHCROFT, ATTORNEY GENERAL

Respondent

--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
--------------------

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.

PER CURIAM:

Kossi Thomas Soadjede challenges a final order of removal

issued by the Board of Immigration Appeals (BIA) on April 2,

2002. Soadjede applied for political asylum under § 208 of the

Immigration and Nationality Act (INA), withholding of removal

under § 241(b) of the INA, withholding of removal under the

Convention Against Torture (CAT), and in the alternative,

voluntary departure. On November 17, 2000, an immigration judge

denied Soadjede’s applications for asylum, withholding of

removal, and protection pursuant to the CAT. The immigration

judge found Soadjede statutorily ineligible for asylum because he

failed to file his asylum application within one year after his
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arrival in the United States. With respect to Soadjede’s

applications for withholding of removal and CAT protection, the

immigration judge found that Soadjede failed to meet his burden

of proof. The immigration judge granted Soadjede’s request for

voluntary departure from the United States. The BIA summarily

affirmed the immigration judge’s decision pursuant to 8 C.F.R.

§ 3.1(a)(7).

Soadjede argues that the BIA’s issuance of an order

summarily affirming the decision of the immigration judge

provides an inadequate basis for judicial review by this court.

In arguing that he received less than a “full and fair trial,”

his argument implicates his rights under the Due Process Clause

of the Fifth Amendment. Thus, we construe Soadjede’s argument as

a claim that the BIA’s affirmance without opinion procedure is

unconstitutional because it violates due process. This Court

reviews constitutional challenges de novo. Anwar v. INS, 116

F.3d 140, 144 (5th Cir. 1997).

At issue in this case is the “streamlining” regulation,

8 C.F.R. § 3.1(a)(7), which authorizes a single Board member to:

affirm the decision of the Service or the Immigration
Judge, without opinion, if the Board Member determines
that the result reached in the decision under review was
correct; that any errors in the decision under review
were harmless or nonmaterial; and that

(A) the issue on appeal is squarely controlled by
existing Board or federal court precedent and does
not involve the application of precedent to a novel
fact situation; or
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(B) the factual and legal questions raised on appeal
are so insubstantial that three-Member review is
not warranted.

8 C.F.R. § 3.1(a)(7)(ii) (2002). Once the Board Member has made

the determination that a case satisfies these requirements, the

Board issues the following order: “The Board affirms, without

opinion, the result of the decision below. The decision is,

therefore, the final agency determination. See 8 C.F.R.

3.1(a)(7).” Id. § 3.1(a)(7)(iii).

The regulation provides that an affirmance without opinion

“does not necessarily imply approval of all of the reasoning of”

the decision below. Id. The regulation explicitly prohibits

Board Members from including in their orders their own

explanation or reasoning. Id. Consequently, the regulation

designates the decision of the immigration judge, and not the

Board’s summary affirmance, as the proper subject of judicial

review. See Streamlining, 64 Fed. Reg. 56,135, 56,137 (Oct. 18,

1999) (“The decision rendered below will be the final agency

decision for judicial review purposes”). This court has

previously joined the majority of circuits in approving the

authority of the BIA to affirm the immigration judge’s decision

without giving additional reasons. Mikhael v. INS, 115 F.3d 299,

302 (5th Cir. 1997) (noting that, where the BIA affirmed without

additional explanation, this court would review the immigration

judge’s decision); see also Abdulai v. Ashcroft, 239 F.3d 542,

549 n.2 (3d. Cir. 2001); Giday v. INS, 113 F.3d 230, 234 (D.C.
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Cir. 1997); Chen v. INS, 87 F.3d 5, 7 (1st Cir. 1996); Prado-

Gonzalez v. INS, 75 F.3d 631, 632 (11th Cir. 1996); Urukov v.

INS, 55 F.3d 222, 227-28 (7th Cir. 1995); Alaelua v. INS, 45 F.3d

1379, 1382-83 (9th Cir. 1995); Maashio v. INS, 45 F.3d 1235, 1238

(8th Cir. 1995); Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255

(4th Cir. 1995); Arango-Aradondo v. INS, 13 F.3d 610, 613 (2d.

Cir. 1994).

The First Circuit recently rejected a due process challenge

to the BIA’s summary affirmance procedures. In Albathani v. INS,

___ F.3d ___, 2003 WL 257276 (1st Cir. Feb. 6, 2003), that court

found that the summary affirmance procedures do not deprive the

courts of appeal of a reasoned basis for review because the

immigration judge’s opinion provides the basis for review. Id.

at *11-*12. The court noted 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.” Id. at *11 (quoting Vt. Yankee Nuclear

Power Corp. v. Natural Res. Def. Council Inc., 435 U.S. 519, 543-

44 (1978)). The First Circuit reasoned that they could not infer,

in the absence of evidence, that the BIA did not conduct the

required review of the immigration judge’s decision merely

because it used a streamlined summary affirmance procedure in

order to manage its caseload. Id. at *13 (“[Summary affirmance

procedures] are workload management devices that acknowledge the

reality of high caseloads. They do not, either alone or in
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combination with caseload statistics, establish that the required

review is not taking place.”).

We agree with the reasoning set forth by our sister circuit

in Albathani. As that court pointed out, the summary affirmance

procedures employed by the BIA are similar in nature to the

summary disposition procedures used by this and other courts.

See 5TH CIR. R. 47.6 (providing for affirmance without opinion

under enumerated circumstances). In addition, in adopting the

regulation, the Department of Justice (DOJ) specifically

considered the potential due process concerns about summary

affirmance. 64 Fed. Reg. at 56,138. The DOJ reasoned that the

“risk of erroneous decisions resulting from the streamlining of

[BIA] procedures is minimal” because “most appellants will

already have had a full evidentiary hearing before an Immigration

Judge.” Id. The DOJ also noted that the government has a

significant interest in concentrating the resources of the BIA on

“cases where there is a reasonable possibility of reversal, or

where a significant issue is raised in the appeal.” Id.

Ultimately, the DOJ concluded that “an endorsement of the result

reached by the decision-maker below satisfies any conceivable due

process requirement concerning justifications for the decisions

made in any appellate process that the government decides to

provide.” Id. at 56,139.

We hold that the summary affirmance procedures provided for

in 8 C.F.R. § 3.1(a)(7) do not deprive this court of a basis for
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judicial review and that the procedures do not violate due

process. Soadjede has raised and briefed the procedural issues

only. He does not argue that the decision in his case is not

supported by substantial evidence. We will thus treat the issues

concerning the merits of his immigration appeal as abandoned.

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987).

Soadjede’s petition for review of the BIA’s decision is

DENIED.