Soadjede v. Ashcroft, 02-60314 Summary Calendar.

• Decision Date: 28 March 2003
• Docket Number: No. 02-60314 Summary Calendar.,02-60314 Summary Calendar.
• Citation: 324 F.3d 830
• Parties: Kossi Thomas SOADJEDE, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

324 F.3d 830

Kossi Thomas SOADJEDE, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-60314 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 28, 2003.

Catherine Lampard-Naccari, New Orleans, LA, for Petitioner.

William Clark Minick, Thomas Ward Hussey, Director, Terri Jane Scadron, U.S. Dept. of Justice, Civ. Div., Imm. Lit., Washington, DC, Caryl G. Thompson, U.S. INS, Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for 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 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

(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.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, 318 F.3d 365 (1st Cir.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 376-78. 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 at 376 (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council Inc., 435 U.S. 519, 543-44, 98 S.Ct. 1197, 55 L.Ed.2d 460 (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 379 ("[Summary affirmance procedures]...