Haoud v. Ashcroft
| Decision Date | 25 November 2003 |
| Docket Number | No. 02-2395.,02-2395. |
| Parties | Lahouari HAOUD, Petitioner, v. John ASHCROFT, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Daniel F. Cashman, with whom Cashman & Lovely, P.C., and Susanna L. Shafer, were on brief for Petitioner.
Beth J. Werlin, with whom Mary A. Kenney, Nadine K. Wettstein, were on brief for American Immigration Law Foundation, Iris Gomez, was on brief for Massachusetts Law Reform Institute, and Harvey Kaplan, with whom Kaplan, O'Sullivan & Friedman, were on brief for American Immigration Lawyers Association, New England Chapter, amicus curiae.
Virginia M. Lum, Attorney, with whom Peter D. Keisler, Assistant Attorney General, and Terri J. Scadron, Assistant Director, were on brief for Respondent.
Before HOWARD, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Senior Circuit Judge.
Appellant Lahouari Haoud appeals from the Board of Immigration Appeals' (the "Board") affirmance without opinion of an Immigration Judge's order denying Haoud's claims for relief from removal under the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. As the Board's decision provides an inadequate basis for judicial review, we remand to the Board for further proceedings.
Haoud is a native and citizen of Algeria. He entered the United States on a six-month visa in 1995 and stayed unlawfully after the expiration of the visa. On December 30, 1999, the FBI and local police came to his home in East Boston, Massachusetts, and arrested him for carrying a fraudulent green card. Law enforcement also questioned him about terrorist activities. Although a criminal charge was never filed against Haoud, numerous newspaper articles and television broadcasts linked him to the general terrorist scare on the eve of the new millennium, specifically with regard to Algerians arrested in Boston who had been questioned about their connections with terrorist groups such as the Armed Islamic Group of Algeria ("GIA").
Because of the fraudulent green card and the fact that he had overstayed his visa, Haoud was held at an INS detention center throughout January 2000. On March 24, 2000, he submitted an application and supporting affidavit for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), withholding or deferral of removal under Article 3 of the United Nations Convention Against Torture, and voluntary departure under 8 U.S.C. § 1229a. He claimed that because his arrest for possessing a false green card had generated local and nationwide publicity implying that he was associated with an Algerian terrorist group, he feared persecution if he was returned to Algeria. At his asylum hearing, in addition to his own testimony, documentation of his arrest and the subsequent media coverage, Haoud produced Dr. John Entelis, an expert in Algerian politics from Fordham University, who testified that because of the paranoid climate pervading Algerian society and its government, Haoud would be in danger in Algeria as the government, knowing of the claims made against him in the United States, would consider him a terrorist or enemy of the state.
The Immigration Judge ("IJ") denied all four of Haoud's applications. He decided that Haoud's asylum application was untimely filed and that he failed to establish changed circumstances to excuse that untimeliness. See 8 U.S.C. §§ 1158(a)(2)(B) & (D). Alternatively, the IJ found that Haoud's application failed to demonstrate either past persecution or a well-founded fear of future persecution based on a reasonable possibility that he would suffer harm in Algeria. The IJ explained that Haoud could not use the media reports to "manufacture an asylum claim" and that Dr. Entelis's testimony was too speculative to support the claim.
Shortly after the IJ made these determinations, the Board decided a case, In re Amine Touarsi, A78-161-736 (BIA 12/28/2000), involving another Algerian man who was arrested in Boston the same night as Haoud on the same suspicion of terrorism. Although the IJ denied Touarsi's asylum application, the Board on appeal reversed upon concluding that Touarsi had "a well-founded fear of persecution in Algeria based on imputed political opinion."
Haoud timely appealed the IJ's decision to the Board. In his appeal, Haoud raised Touarsi. Notwithstanding that apparent precedent, the Board affirmed the IJ's decision without opinion under 9 C.F.R. § 1003.1(e)(4).
On appeal, the parties raise three primary issues: (1) whether we have jurisdiction to review the Board's decision; (2) whether the IJ's decision was in error; and (3) whether the Board's affirmance without opinion (AWO) violated the Board's own regulatory procedure. Because we decide this appeal on issue (3), we discuss issues (1) and (2) only as they bear on (3).
For a determination by the Board of Immigration Appeals of statutory eligibility for relief from deportation, we review questions of law de novo. See Civil v. INS, 140 F.3d 52, 54 (1st Cir.1998). While deference is given to an agency's interpretation of the underlying statute, such interpretation must be "in accordance with administrative law principles." Debab v. INS, 163 F.3d 21, 24 (1st Cir.1998).
The government contends that we lack jurisdiction to review the IJ's denial of Haoud's asylum application because Haoud failed to file his application within one year of his arrival in the United States.1 The government also argues that under 8 U.S.C. § 1158(a)(3), we are foreclosed from reviewing a determination that an alien failed to timely file an asylum application.2 Haoud concedes that his asylum application was untimely, but argues that he presented "extraordinary circumstances" that excuse the delay, pursuant to 8 U.S.C. § 1158(a)(2)(D).3
Our sister circuits agree that 8 U.S.C. § 1158(a)(3) bars judicial review of the Board's decision as to the timeliness of an asylum application.4 See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003); Tsevegmid v. Ashcroft, 318 F.3d 1226, 1230 (10th Cir.2003); Fahim v. U.S. Attorney General, 278 F.3d 1216, 1217 (11th Cir. 2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001). The Tenth Circuit in Tsevegmid explained:
This court generally has jurisdiction to review the denial of any asylum request. See 8 U.S.C. § 1252(a)(2)(B)(ii).... However, our jurisdiction to review a [Board] determination on the timeliness of an application for asylum is limited by statute. Section 1158(a)(3) expressly provides that the courts do not have "jurisdiction to review any determination" on whether the alien filed his application within a year of entry or whether "changed circumstances" exist "which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application."
Though we concur that 8 U.S.C. § 1158(a)(3) could bar our review of the IJ's determination of the timeliness of Haoud's asylum application, resolution of this issue does not dispose of this case. As discussed infra, we must determine on what grounds, whether it be untimeliness or the merits of Haoud's asylum claim, the Board affirmed the IJ's decision. If the Board affirmed the IJ's decision on the merits of Haoud's persecution claims, but rejected the IJ's conclusion as to the untimeliness and "changed circumstances" issue, then we have jurisdiction over this appeal.
Haoud challenges the IJ's decision on the merits, arguing that the IJ made erroneous conclusions of law that were neither harmless nor immaterial, and hence led to an incorrect result in denying him asylum. Here the Board's decision effectively prevents a reviewing court from knowing whether the affirmance of the IJ's decision is reviewable or non-reviewable. The AWO cannot be used to deny our legitimate review power if we are left without a proper basis to determine our own jurisdiction or to evaluate the Board's own critical analysis, see infra. Accordingly, we refrain at this time from discussing the merits of the IJ's decision.
The Board "has the duty to follow its own federal regulations." Nelson v. INS, 232 F.3d 258, 262 (1st Cir.2000); see also Saakian v. INS, 252 F.3d 21, 25-27 (1st Cir.2001). Failure to do so can result in the reversal of an agency order and a new hearing. Id.
Haoud argues that the Board failed to follow its own regulatory procedure when it issued the affirmance without opinion (AWO) in this case. The Attorney General adopted the AWO procedure at issue in 1999. Rather than the usual three-member review, an AWO allows for review of a case by a single member, who then affirms the IJ's decision with the statement, "The Board affirms, without opinion, the result of the decision below." 8 C.F.R. § 1003.1(a)(7)(iii). Unlike decisions rendered after review by a three-member panel, a single Board member acting under 8 C.F.R. § 1003.1(e)(4) is prohibited from explaining his decision on the merits in an AWO. Moreover, the regulation defines an AWO as a Board approval of only the "result reached in the decision below." 8 C.F.R. § 1003.1(e)(4). The AWO does not "necessarily imply approval of all the reasoning" of the IJ's decision, although it does signify the Board's conclusion that any errors were harmless or immaterial. Id. The Board member can issue an AWO only if he 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 fact 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.
The government...
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