Tsegay v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 26 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

TESHAI HOGOS TSEGAY,

Petitioner,

v. No. 02-9577
JOHN ASHCROFT, United States
Attorney General,

Respondent.
_________________________

AMERICAN IMMIGRATION LAW
FOUNDATION,

Amicus Curiae.

APPEAL FROM THE UNITED STATES
OFFICE OF IMMIGRATION AND NATURALIZATION SERVICE
(NO. A76-939-926)

Emily Jeanellen Curray (Kenneth Stern and Lisa H. York on the briefs), Stern and
Elkind, LLP, Denver, Colorado, for Petitioner.

Jamie M. Dowd (Peter D. Keisler, Linda S. Wernery and John D. Williams on the
briefs) United States Department of Justice, Washington, D.C., for Respondent.

Beth Werlin, Nadine K. Wettstein, and Mary A. Kenney, American Immigration
Law Foundation, Washington, D.C., on brief for Amicus Curiae for Petitioner.
Before EBEL , TYMKOVICH , Circuit Judges, and HEATON, *
District Judge.

TYMKOVICH , Circuit Judge.

Petitioner Teshai Hogos Tsegay was born in 1954 in a region of Ethiopia

that later became part of the country of Eritrea. Though raised as an Orthodox

Christian, in 1986 she converted to the Jehovah’s Witnesses religion. After being

persecuted by government officials for her religious activities as a Jehovah’s

Witness, she fled Eritrea and legally entered the United States in 1996 on a six-

month temporary visa.

In 1997, her temporary visa expired. She lived without proper

documentation for two years, and then applied for asylum in 1999. An

immigration judge rejected her application after determining (a) that she had

failed to file her application within the one-year statutory deadline, and (b) that

she had also failed to show “changed circumstances” sufficient to extend the

statutory deadline. See 8 U.S.C. § 1158(a)(2)(D) (2000). The judge did,

however, grant her application for withholding of deportation on the ground that

she would likely suffer persecution if returned to Eritrea. Tsegay currently

resides in the United States.

*
Honorable Joe L. Heaton, District Judge, Western District of Oklahoma,
sitting by designation.

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 Tsegay appealed the denial of asylum to the Board of Immigration Appeals.

Under the regulations governing administrative review of immigration appeals, 1 a

single BIA member “streamlined” the case, and summarily affirmed the IJ’s

decision without an opinion. Tsegay now seeks judicial review of the BIA’s

decision to affirm her case without opinion.

Tsegay acknowledges that under Tsevegmid v. Ashcroft, 336 F.3d 1231,

1234 (10th Cir. 2003) (analyzing 8 U.S.C. § 1158(a)(3)), we do not have

jurisdiction to review the merits of the IJ’s decision. Instead, she raises this

jurisdictional question: May we review the BIA’s decision to affirm Tsegay’s

administrative appeal without opinion under 8 C.F.R. § 1003.1(e)(4), even though

we do not have jurisdiction to review the merits of her appeal?

Holding that we have no authority to hear Tsegay’s appeal, we DISMISS.

I. BACKGROUND

Tsegay is a native Ethiopian who converted to the Jehovah’s Witnesses

religion as a young adult. In the late 1980s, she actively practiced her religion

without persecution under the Ethiopian regime and was even able to convert

some of her relatives to her faith.

In 1991, after a brutal war that lasted decades, Eritrea achieved its

1
8 C.F.R. § 3.1(e)(4) (2003), now codified at 8 C.F.R. § 1003.1(e)(4), 68
Fed. Reg. 9824, 9831 (Feb. 28, 2003). We will refer throughout this opinion to
the more recent codification.

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independence from Ethiopia. Tens of thousands of Eritreans lost their lives in the

struggle for independence. In accordance with the tenets of their religion, many

Jehovah’s Witnesses refused to participate in the war for independence and also

refused to participate in the independence referendum that followed the war. This

aroused widespread resentment against them both by the Eritrean government and

among the general population, a resentment that soon developed into active

persecution. The Eritrean government subsequently outlawed the practice of the

Jehovah’s Witnesses faith in Eritrea, stripped all Jehovah’s Witnesses of their

citizenship rights, and imprisoned some of them for refusing to participate in

military service.

Despite these new government restrictions on the practices of Jehovah’s

Witnesses, Tsegay continued to meet with fellow Witnesses and to conduct her

door-to-door ministry. Eventually, Eritrean government forces discovered

Tsegay’s activities and arrested her for participating in a Jehovah’s Witnesses

women’s group. She was held in jail for three months, during which time her

captors verbally harassed her and attempted to convince her to forsake her faith.

She was only released after her nephew, a high-ranking official with the Eritrean

security services, intervened on her behalf. Her nephew then helped her to obtain

a visa to enter the United States.

Tsegay entered the United States on December 26, 1996, with a non-

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immigrant B-2 visa that entitled her to remain in the United States until June 25,

1997. In 1997, Congress amended the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 to provide that an alien must apply for asylum within

one year after either arriving in the United States or before April 1, 1997,

whichever is later. 8 U.S.C. § 1158(a)(2)(B). Accordingly, under the provisions

of the Act, Tsegay had one year from April 1, 1997, or until April 1, 1998, in

which to file her application for asylum. 8 C.F.R. § 208.4(a)(2)(ii) (2003).

Tsegay filed her application for asylum pro se on July 26, 1999—nearly

sixteen months after April 1, 1998. On October 13, 1999, the Immigration and

Naturalization Service 2 denied her asylum application and issued her a notice to

appear as a removable alien. At the ensuing hearing on January 5, 2000, Tsegay,

through counsel, admitted to the factual allegations in the notice to appear and

conceded her removeability, but she requested relief from removal in the form of

asylum and withholding of removal or, alternatively, voluntary departure. She

was granted a second hearing on her request for relief from removal, which took

place on August 4, 2000, in Denver, Colorado.

At the second hearing, Tsegay testified that she did not immediately apply

2
“The INS ceased to exist on March 1, 2003, and its functions were
transferred to the U.S. Citizenship and Immigration Services (‘USCIS’) within the
newly formed Department of Homeland Security [DHS].” Batalova v. Ashcroft,
355 F.3d 1246, 1248 n.1 (10th Cir. 2004). We refer to the INS.

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for asylum upon her entry into the United States because she expected to return to

Eritrea. She later decided to go to Ethiopia after several of her relatives who

were Jehovah’s Witnesses found refuge from persecution there. However, she

overstayed the expiration of her visa because she could not afford a plane ticket

to Ethiopia.

Unfortunately for Tsegay, around the same time her visa expired the

conflict between Ethiopia and Eritrea boiled over. Both Ethiopia and Eritrea

began deporting each other’s citizens en masse to their respective countries. By

September 1998, Ethiopia had deported Tsegay’s family members back to Eritrea,

where they again began to experience persecution because of their faith. About

nine months later, Tsegay, who had remained in the United States during this

time, filed her application for asylum.

Tsegay acknowledged the untimeliness of her application for asylum, but

she asked the IJ to excuse her lateness under the “changed circumstances”

exception of INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D) (providing that the

INS may consider an alien’s untimely application for asylum if the alien

demonstrates the existence of changed circumstances that materially affect her

eligibility for asylum). In particular, she argued that although conditions of

persecution in Eritrea had always existed, changes in conditions in Ethiopia

eliminated the safe haven that she had originally expected to find there.

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 The IJ denied Tsegay’s request at the close of the August 2000 hearing.

Although the IJ found that the Eritrean government had discriminated against

Jehovah’s Witnesses, he also found that Tsegay had failed to prove changed

circumstances under § 1158(a)(2)(D) because the conditions in Eritrea had been

the same since 1991. The IJ explained that “the statute and the intent of Congress

as far as change in country conditions are concerned relate to Eritrea, not

Ethiopia” and, accordingly, he did not consider the effect of the changed political

environment in Ethiopia.

Tsegay appealed to the BIA on the grounds that the IJ had erred by failing

to recognize that “changed circumstances” could include circumstances that took

place outside the United States, but not in her home country. The BIA judge

assigned to her case did not expressly address this argument. Instead, he

summarily affirmed the IJ’s decision under the agency’s affirmance without

opinion (“AWO”) regulation and issued an opinion that stated simply, “The Board

affirms, without opinion, the results of the decision below. The decision below

is, therefore, the final agency determination. See 8 C.F.R. § 3.1(e)(4).”

Tsegay now seeks to appeal the BIA’s decision to apply 8 C.F.R.

§ 1003.1(e)(4) and affirm her case without opinion rather than issue a written

opinion.

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 II. THE BIA REVIEW PROCESS

Prior to 1999, all appeals to the BIA were heard by a panel of three Board

members. In 1999, however, rapid growth in the BIA’s caseload “severely

challenged the Board’s ability to accomplish its mission [to fairly and timely

adjudicate immigration appeals] and require[d] the adoption of new case

management techniques.” Streamlining, 64 Fed. Reg. 56,135; 56,136 (BIA Oct.

18, 1999). In response, the Attorney General instituted BIA’s AWO procedure.

See id.

In adopting the new procedures, the Department of Justice explained that

they were a reasonable solution to the BIA’s backlog:

The number of appeals filed with the Board in recent years has
exceeded the Board’s capacity to give meaningful, three-Member
consideration to each appeal, and to issue written decisions in every
case. The summary affirmance process is a reasonable response to
the current situation, because it allows the Board to concentrate its
resources on cases where there is a reasonable possibility of reversal,
or where a significant issue is raised in the appeal, while still
providing assurances that correct results are achieved in all cases
under the Board’s appellate jurisdiction.

64 Fed. Reg. at 56,138; see also id. at 56,137 (“To operate effectively in an

environment where over 28,000 appeals and motions are filed yearly, the Board

must have discretion over the methods by which it handles its cases.”); Procedural

Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,885 (BIA Aug.

26, 2002) (“The Department has concluded that streamlining has proven to be an

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effective procedure for managing an ever-increasing caseload and will

significantly assist and promote fair and expeditious review of all pending and

incoming appeals while maintaining a respondent’s rights to a reasoned

administrative decision.”). 3

The current version of the AWO regulation is nearly identical to the version

adopted in 1999 and is codified at 8 C.F.R. § 1003.1(e)(4). It provides for

affirmance without opinion if the Board member believes the IJ decision (1) is

correct or contains harmless errors, and (2) does not present novel or substantial

factual or legal issues. In full, the current regulation provides:

(4) Affirmance without opinion.

(i) The Board member to whom a case is assigned shall 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 issues on appeal are squarely controlled by existing Board or
federal court precedent and do not involve the application of
precedent to a novel factual situation; or

(B) The factual and legal issues raised on appeal are not so
substantial that the case warrants the issuance of a written opinion in
the case.

3
If a case is not affirmed without opinion under 8 C.F.R. § 1003.1(e)(4)(i),
either a single BIA member may decide the case with a written opinion, see id.
subsection (e)(5), or the case may be referred to a three-member panel for
decision. See id. subsection (e)(6).

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 (emphasis added).

The decision to affirm without opinion “approves the result reached in the

decision below; it does not necessarily imply approval of all of the reasoning of

that decision, but does signify the Board’s conclusion that any errors in the

decision of the immigration judge or the Service were harmless or nonmaterial.”

8 C.F.R. § 1003.1(e)(4)(ii). A BIA member who chooses to apply the AWO

procedures may not give reasons for affirming without opinion, but must issue an

order that states, “The Board affirms, without opinion, the result of the decision

below. The decision below is, therefore, the final agency determination. See 8

CFR 1003.1(e)(4).” Id. Once the BIA affirms a decision without opinion, the

IJ’s decision becomes the final agency determination. See Yuk v. Ashcroft, 355

F.3d 1222, 1230 (10th Cir. 2004).

In challenging the BIA’s use of the AWO procedure in her case, Tsegay

argues that (1) affirmance without opinion violates her right to due process and

(2) the BIA member assigned to her case improperly applied the AWO regulation.

Accordingly, she requests that this court remand the case to the BIA for issuance

of a written opinion explaining why it applied the AWO procedure to her appeal.

III. THE BIA’S AFFIRMANCE WITHOUT OPINION
REGULATIONS DO NOT VIOLATE DUE PROCESS

Tsegay first asserts that affirmance without opinion violates her right to

due process by eliminating individualized, reasoned, and meaningful

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administrative decisions. We reject this argument based on our recent decision in

Yuk v. Ashcroft, 355 F.3d 1222, 1232 (10th Cir. 2004).

We held in Yuk that an alien does not have a constitutional right to appeal

the IJ’s decision to the BIA. Id. at 1229 (“An alien has no constitutional right to

any administrative appeal at all.”). Rather, the right to appeal is merely a

regulatory creation of the Attorney General. See id. (“[T]he INS had the power to

promulgate the summary affirmance regulations and include therein the

procedures it deemed appropriate.”). Although Tsegay was entitled to a reasoned

agency decision on the merits of her petition for asylum, the IJ’s decision

provides precisely that determination. Id. at 1231. Tsegay thus received all the

process the Constitution requires.

IV. THE BIA’S APPLICATION OF THE AWO PROVISION
IS NOT REVIEWABLE

Tsegay’s second argument is that the BIA improperly applied the AWO

regulation to her case. Before we may examine the merits of this contention, we

must assure ourselves that we have jurisdiction to do so.

As a court of limited subject matter jurisdiction, we review administrative

agency decisions only as provided by acts of Congress. Nicodemus v. Union

Pacific Corp., 318 F.3d 1231, 1235 (10th Cir. 2003) (“Federal courts are courts of

limited jurisdiction; they must have a statutory basis for their jurisdiction.”);

Xavier Univ. v. Nat’l Telecomm., 658 F.2d 306, 307 (5th Cir. 1981) (“[W]e are

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authorized to review decisions and orders of administrative agencies only as

provided by acts of Congress.”). Two statutes define our jurisdiction to review

immigration decisions—the Immigration and Nationality Act and the

Administrative Procedures Act.

A. The INA does not provide for appellate review since we are not asked to
review a final order of removal

The Immigration and Naturalization Act does not give us jurisdiction to

review this case. Although the INA grants us general jurisdiction to review a

“final order of removal,” 8 U.S.C. § 1252(a)(1), Tsegay does not ask us to review

the final order of removal, which in this case is the IJ’s decision on the merits of

her claim. Conceding that the IJ’s order is not reviewable, see Yuk, 355 F.3d at

1230, she asks us to review only the BIA’s procedural decision to affirm without

opinion the IJ’s denial of her asylum petition.

We agree with Tsegay that the BIA’s decision is not a final order of

removal under the INA. Instead, it is the agency action that makes the IJ’s

decision the final order of removal. The INA, however, does not give us any

authority to review procedural decisions such as the BIA’s affirmance decision.

Accordingly, we must look to the Administrative Procedure Act for jurisdiction to

adjudicate this case.

B. The APA does not provide for appellate review of the decision to affirm
without opinion

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 Since we have no “final order of removal” jurisdiction under the INA, we

now must decide whether we have jurisdiction under the APA. To be subject to

review under the APA, the action at issue must be a “final agency action.” 5

U.S.C. § 704. The BIA’s decision to affirm Tsegay’s case without opinion was

the final agency action here because it marked “the consummation of the agency

decision-making process” and was an action “from which legal consequences

flow,” in that the affirmance without opinion establishes the IJ’s asylum decision

as the final order of removal. See Bennett v. Spear, 520 U.S. 154, 177–78 (1997).

Once finality is established, we ordinarily have jurisdiction to review agency

action. 5 U.S.C. § 702 (“A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action within the meaning of

a relevant statute, is entitled to judicial review thereof.”).

This general grant of jurisdiction is nonetheless subject to two exceptions—

we may not review an agency decision if either (1) a “statute[] preclude[s]

judicial review” or (2) the “agency action is committed to agency discretion by

law.” 5 U.S.C. § 701(a). We address each of these exceptions in turn.

1. No statute expressly precludes judicial review

We first determine whether any statute precludes judicial review of the

BIA’s decision to affirm without opinion. The IJ rejected Tsegay’s asylum

application because he found that the changed circumstances exception did not

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apply. The INA prohibits us from reviewing any decision regarding the

application of the changed circumstances exception. 8 U.S.C. § 1158(a)(3); see

also Tsevegmid, 836 F.3d at 1234. Had the Attorney General decided not to

create any administrative review procedure at all, therefore, we would have had

no jurisdiction to review the IJ’s decision.

As Tsegay points out, however, § 1158(a)(3) does not entirely preclude

judicial review of a BIA streamlining decision. The regulation explaining the

AWO process, § 1003.1(e)(4), instructs the BIA to affirm without opinion only if

three conditions are met: (1) “the result reached in the decision under review was

correct,” (2) “any errors in the decision under review were harmless or

nonmaterial,” and (3)(a) the issues on appeal “are squarely controlled by existing

Board or federal court precedent and do not involve the application of precedent

to a novel factual situation” or (b) the factual and legal issues “are not so

substantial that the case warrants the issuance of a written opinion in the case.”

While it is difficult to imagine that we could determine whether prongs (1) and

(2) were met without engaging in some prohibited merits review, we could

theoretically consider prong (3)(a)—namely, whether Tsegay’s case raises novel

factual and legal issues—without reaching the merits of the IJ’s decision.

Accordingly, we cannot say that § 1158(a)(3) precludes all judicial review of the

BIA’s decision to affirm without opinion.

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 One panel of the Ninth Circuit, by contrast, has held that review of a

decision to affirm without opinion in a cancellation of removal case will

necessarily involve a prohibited merits review. Falcon Carriche v. Ashcroft, 350

F.3d 845, 854 (9th Cir. 2003) (“Because we lack jurisdiction to review the merits

of the IJ’s discretionary decision . . . we are also without jurisdiction to evaluate

whether streamlining was appropriate.”). Another Ninth Circuit panel, however,

has recently distinguished Falcon Carriche and held that it could review the

AWO decision under the third prong of the regulation. Chong Shin Chen v.

Ashcroft, 378 F.3d 1081 (9th Cir. 2004).

In our view, whether a case presents questions unanswered by existing

precedents, as required by 8 C.F.R. § 1003.1(e)(4)(i)(A), has nothing to do with

whether those precedents are wrong. However awkward and pedantic it would be

to determine whether Tsegay’s case is novel without at the same time looking into

the merits of any similar IJ decision, it would not be impossible.

The question of whether judicial review of the “substantiality” prong of 8

C.F.R. § 1003.1(e)(4)(i)(B) would require a prohibited assessment of the merits

presents a closer call. It is not enough, as Tsegay argues, that the issue be

substantial to her individual appeal. Rather, the issue must be “so substantial that

it warrants the issuance of a written opinion.” 8 C.F.R. § 1003.1(e)(4)(i)(B). To

determine whether a case warrants a written opinion, however, we would struggle

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to avoid looking at the merits of the IJ’s opinion, for one of the factors that

appellate tribunals such as the BIA typically rely upon in deciding whether to

issue a written opinion is whether the opinion below contains any significant

errors. See id.

In any case, we need not answer definitively if examination of either part of

the third prong would require a merits determination because, as we discuss next,

the decision to issue a written opinion in a particular case is committed to agency

discretion by law.

2. The BIA’s decision is committed to agency discretion by law

The APA’s second exception to judicial review is narrow. Heckler v.

Chaney, 470 U.S. 821, 830 (1985). Under our precedents, whether a decision is

committed to agency discretion by law “is determined not only from [the

statute’s] express language, but also from the structure of the statutory scheme, its

objectives, its legislative history and the nature of the administrative action

involved.” Colo. Envtl. Coalition v. Wenker, 353 F.3d 1221, 1228 (10th Cir.

2004) (per curiam) (quoting American Bank, N.A. v. Clarke, 933 F.2d 899, 902

(10th Cir. 1991) (emphasis added)). 4 In particular, absent a showing of

4
Although this exception most often applies when the enabling legislation
is “drawn so that a court would have no meaningful standard against which to
judge the agency’s exercise of discretion,” Heckler, 470 U.S. at 830, Colorado
Environmental Coalition makes clear that this is not the only circumstance in
(continued...)

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“substantial prejudice to the complaining party,” our review of an agency decision

is always circumscribed when “a procedural rule is designed primarily to benefit

the agency carrying out its functions,” rather than “intended primarily to confer

important procedural benefits upon individuals.” Am. Farm Lines v. Black Ball

Freight Serv., 397 U.S. 532, 538–39 (1970). Hence, it is well-settled that

agencies have discretion to develop case management techniques that make the

best use of their limited resources. See id. at 539 (“[The agency] is entitled to a

measure of discretion in administering its own procedural rules in such a manner

as it deems necessary to resolve quickly and correctly urgent [] problems.”); Vt.

Yankee Nuclear Power Corp v. Natural Resources Defense Council, Inc., 435

U.S. 519, 544 (1978) (“[A] very basic tenet of administrative law [is] that

agencies should be free to fashion their own rules of procedure.”).

Applying these principles, the Sixth Circuit has held that a BIA decision to

affirm without opinion is committed to agency discretion by law. Ngure v.

Ashcroft, 367 F.3d 975 (6th Cir. 2004). Observing (a) that the application of

§ 1003.1(e)(4) involves the complex allocation of agency resources, (b) that it

was not intended to create substantive rights for aliens, and (c) that judicial

review would have disruptive practical consequences and would be unworkable in

4
(...continued)
which the exception may apply.

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any case, the Ngure court concluded that it did not have jurisdiction under the

Administrative Procedure Act. Id. at 983–85. Just as courts lack jurisdiction to

review an agency’s refusal to rehear a case, ICC v. Bhd. of Locomotive Eng’rs,

482 U.S. 270, 280 (1987), or bring an enforcement action, Heckler v. Chaney, 470

U.S. 821 (1985), they also, according to Ngure, lack jurisdiction to review the

BIA’s refusal to issue a written opinion.

We agree with the Sixth Circuit’s assessment of the immigration regulatory

scheme before us. Based on our own analysis of the nature of the AWO

regulations, the practicality of allowing such review, and the prejudice to

petitioners, we conclude that the AWO decision is not reviewable.

a. Review of the AWO decision would disrupt the agency’s management
of immigration appeals

We first look to whether the regulation and the nature of the administrative

action are for the benefit of the BIA’s orderly management of its immigration

docket. There can be little doubt that is the case here. As we explained in Yuk,

“a BIA summary affirmance is not unlike the summary affirmance or summary

disposition procedures employed by courts, which are workload management

devices that acknowledge the reality of high caseloads.” 355 F.3d at 1232. The

DOJ underscored this point when it explained the rationale behind the

implementation of the AWO procedure:

[It] represents a careful balancing of the need to ensure correct

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 results in individual cases with the efficiencies necessary to maintain
a viable appellate organization that handles an extraordinarily large
caseload. The streamlining system will allow the Board to manage its
caseload in a more timely manner while permitting it to continue
providing nationwide guidance through published precedents in
complex cases involving significant legal issues.

64 Fed. Reg. at 56,138. Indeed, the DOJ, in modifying 8 C.F.R. § 1003.1 in 2002,

explained that it did not think judicial review of its case management decisions

would be appropriate. See 67 Fed. Reg. at 54,888 (“[A]n agency must have

discretion to innovate and establish new procedures for administrative appeals. . .

. The criteria used in the final rule are similar to those used by the federal courts

of appeals in deciding whether to hold oral argument or to publish an opinion.”).

As a case management technique designed primarily to benefit the agency rather

than to confer special rights upon asylum petitioners, the decision to affirm

without opinion falls squarely into the category of decisions committed to the

agency’s discretion and beyond our jurisdiction to review. See Am. Farm Lines,

397 U.S. at 538–39; see also Belay-Gebru v. INS, 327 F.3d 998 (10th Cir. 2003)

(holding that we may not review a BIA’s refusal to reopen a case sua sponte).

b. Review of the AWO decision would be impractical

A second consideration is that, as the Supreme Court has emphasized, an

agency decision made without statement of reasons creates practical difficulties

for judicial review. See Bhd. of Locomotive Eng’rs, 482 U.S. at 283 (emphasizing

the impracticality of allowing judicial review of denials of reconsideration

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because “[t]he vast majority . . . are made without statement of reasons”)

(emphasis added); see also Yu Sheng Zhang v. DOJ, 362 F.3d 155, 159 (2d Cir.

2003) (noting that because the BIA member gives no explanation for the decision

to affirm without opinion, the court cannot “speculate as to the nature of the

member’s analysis” and must instead review the IJ’s decision). The reason for

this is that it is practically impossible for a court to defer to an agency’s

interpretation of its own regulations, unless the agency gives some explanation for

its decision. See Bhd. of Locomotive Eng’rs, 482 U.S. at 283 (noting how

unworkable it would be to review for abuse of discretion when a decision is made

without statement of reasons); cf. Auer v. Robbins, 519 U.S. 452, 461 (1997)

(“[A]n agency’s interpretation of [its own regulations] is . . . controlling unless

plainly erroneous or inconsistent with the regulation.”). Section 1003.1(e)(4)

explicitly prohibits the BIA from providing an explanation for its decision to

affirm without opinion. Thus, we have no practical way to review the BIA’s

decision under a deferential standard without first remanding the case for an

expanded explanation of why the BIA chose to apply the AWO regulation. This

would require the BIA to do exactly what it is prohibited from doing when it

affirms without opinion. See 8 C.F.R. § 1003.1(e)(4)(ii). In essence, we would

be rewriting the Attorney General’s own regulation.

c. Review of the AWO decision is not necessary to eliminate
substantial prejudice

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 The final consideration is whether Tsegay was “substantially prejudiced” by

the BIA’s decision to affirm her case without opinion. Am. Farm Lines, 397 U.S.

at 538; Colo. Envtl. Coalition, 353 F.3d at 1230. As we have already explained,

the IJ’s opinion has provided Tsegay with a reasoned and written decision on the

merits of her asylum application. Yuk, 355 F.3d at 1231–32. We therefore do not

believe that she was substantially prejudiced by the BIA’s AWO decision.

d. Other authority

We recognize that the Ninth Circuit recently rejected the view that a

decision to affirm without opinion is committed to agency discretion by law.

Chong Shin Chen v. Aschcroft, 378 F.3d 1081 (9th Cir. 2004). The court in

Chong Shin Chen concluded that it had jurisdiction to review the AWO decision

because whether to apply the AWO regulation is not a “subjective question that

depends on the value judgment of the person or entity examining the issue.” Id.

at 1087. This misstates the inquiry. In a sense, every agency decision regarding

how best to use limited resources is “objective,” in that some uses will always be

more “objectively” efficient than others. The reason we avoid second-guessing an

agency’s case management decisions, however, is not that we are unable,

objectively speaking, to manage agency resources better than the agency itself.

Instead, we recognize that any attempt to do so through the device of judicial

review would infringe upon the “agency’s independent discretion.” See Am. Farm

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Lines, 397 U.S. at 539. Indeed, as the dissent in Chong Shin Chen pointed out,

the majority “[n]ot only fail[ed] to analyze and decide what standard [of review]

to adopt, but . . . also neglect[ed] to state explicitly what standard it [was]

applying.” Id. at 1090 (Wallace, J. dissenting). Had they done so, they would

have discovered, as we have, that they could not apply the usual deferential

standard of review without asking the BIA to violate the Attorney General’s own

regulations.

We also recognize that in a recent case from this circuit, Batalova v.

Aschcroft, 355 F.3d 1246 (10th Cir. 2004), we stated that we could review a BIA

member’s failure to refer an asylum appeal to a three-member panel under the

administrative regulations. Batalova, however, is not on point for two reasons.

First, it involved the BIA’s application of 8 C.F.R. § 1003.1(e)(6), which, unlike

(e)(4), does not specifically prohibit a BIA member from issuing a statement of

reasons for its decisions. 5 Reviewing an agency application of (e)(6) therefore

does not present the same practical difficulties we have here. Secondly, and even

more important, in Batalova we had jurisdiction to review the merits of the

underlying appeal, which is not the case here under (e)(4). As the court admitted,

5
Section 1003.1(e)(6) provides that “[c]ases may only be assigned for
review by a three-member panel if the case presents one of [six] circumstances.”
Unlike section (e)(4), it does not forbid the BIA from explaining how in a
particular case none of those circumstances is met.

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“it makes little difference whether . . . the BIA acted through a single member or

a three-member panel, because we directly review the IJ’s decision.” Id. at 1253

n.8.

V. CONCLUSION

In sum, we cannot accept jurisdiction to review the BIA’s decision to apply

the AWO regulation to Tsegay’s agency appeal without either engaging in an

impermissible review of the merits of her appeal or interfering with the BIA’s

inherent discretion to manage its cases.

Accordingly, we DISMISS.

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02-9577, Tsegay v. Ashcroft
HEATON, District Judge, concurring in the result.

I fully concur with the majority’s conclusion that we do not have

jurisdiction to hear this appeal and that it must be dismissed. However, I believe

that result is compelled by the plain language of 8 U.S.C. §1158(a)(3), making it

unnecessary to consider the impact of the agency discretion exception in the

Administrative Procedures Act.

The issue in this case arises in a very narrow factual and procedural

context. Unlike many of the cases addressing the “streamlining” procedure, this

case does not involve a denied request for withholding of removal or a denied

request for relief under the Convention Against Torture — requests where judicial

review is generally available. 1 This case involves only a denied request for

asylum. Further, this case involves an untimely request for asylum, outside the

one year time limit applicable to such requests. 8 U.S.C. §1158(a)(2)(B).

While asylum determinations are generally subject to judicial review, the

rule is different in the case of untimely requests. Section 1158(a)(3) states: “No

court shall have jurisdiction to review any determination of the Attorney General

under paragraph (2).” Paragraph 2 of §1158(a) includes both the one-year time

limit and the exception — changed circumstances — upon which petitioner relies

1
See Ngure v. Ashcroft, 367 F.3d 975 (8th Cir. 2004); Sviridov v.
Ashcroft, 358 F.3d 722 (10th Cir. 2004); Georgis v. Ashcroft, 328 F.3d 962 (7th
Cir. 2003).
here. Further, the limitation on judicial review included in §1158(a)(3) extends

not only to substantive decisions or judgments but to “any determination” by the

Attorney General under paragraph 2. As I can discern no reason why “any

determination” does not also include the Attorney General’s decision to

streamline a case within the scope of that subsection, I conclude the statute

precludes judicial review of the streamlining decision at issue in this case.

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