Falcon Carriche v. Ashcroft

• Decision Date: 14 July 2003
• Docket Number: No. 02-71143.,02-71143.
• Parties: Gerardo Bibiano FALCON CARRICHE; Theresa V. De Falcon Carriche; and Christina Pamela Falcon Bibiano, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

350 F.3d 845

Gerardo Bibiano FALCON CARRICHE; Theresa V. De Falcon Carriche; and Christina Pamela Falcon Bibiano, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 02-71143.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2003.

Filed July 14, 2003.

Amended November 24, 2003.

COPYRIGHT MATERIAL OMITTED

Susan E. Hill, Law Offices of Susan E. Hill, Los Angeles, California, for the Petitioners.

Robert D. McCallum, Jr., Julia K. Doig, and Audrey B. Hemesath, United States Department of Justice, Washington, D.C., for the Respondent.

Mary K. Kenney, Nadine K. Wettstein, and Beth Werlin, American Immigration Law Foundation, Washington, D.C., for amicus curiae American Immigration Law Foundation.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before THOMAS G. NELSON, BARRY G. SILVERMAN, and M. MARGARET McKEOWN, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

The Majority Opinion filed July 14, 2003, slip op. 9435, and appearing at 335 F.3d 1009, is amended as follows:

1. Change Heading III from "III. CHALLENGE TO APPLICABILITY OF STREAMLINING REGULATIONS" to "III. REGULATORY CHALLENGE" and insert at slip op. 9446 before paragraph beginning "We now turn to the Carriches' regulatory challenge."

2. Move the following paragraph from slip op. 9445 and insert as last paragraph of section II at slip op. 9446: "Accordingly, we conclude that the BIA did not violate the Carriches' due process rights by streamlining their appeal."

3. Insert the following paragraph at slip op. 9450 before the paragraph beginning "The Carriches' situation...."

"Although we conclude that we do not have jurisdiction to review the streamlining decision here, we express no opinion on whether the BIA may use streamlining procedures for cancellation of removal cases involving hardship decisions. Our opinion should not be read as an endorsement of streamlining in those cases. We also express no opinion on whether, although rare, a truly novel case could arise for which a decision to streamline could be found erroneous as a matter of law under the third prong of the BIA regulations. See 8 C.F.R. § 1003.1(a)(7)(ii)(A)."

4. Amend the second sentence in the last paragraph at slip op. 9452 to read as follows:

"Accordingly, we conclude that we are without jurisdiction to review whether the BIA improperly streamlined this appeal of a cancellation of removal decision in which only the discretionary `exceptional and extremely unusual hardship' factor is in dispute."

With these amendments, the panel has voted to deny the petition for panel rehearing. Judges Silverman and McKeown vote to deny the petition for rehearing en banc and Judge T.G.

Nelson so recommends. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed.R.App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are denied.

OPINION

McKEOWN, Circuit Judge:

In this case of first impression in the Ninth Circuit, we are presented with constitutional and regulatory challenges to the Board of Immigration Appeals' ("BIA") recently-adopted streamlining procedures. Under those procedures, a single member of the BIA may affirm the decision of the Immigration Judge ("IJ"), thus bypassing the traditional three-judge review. In such a case, the Board affirms without opinion and the IJ's opinion becomes the final agency action.

The streamlining process was invoked in the case of Gerardo Bibiano Falcon Carriche and Theresa Vianna De Falcon Carriche ("the Carriches"), who now appeal the Immigration and Naturalization Service's ("INS")¹ denial of their request for cancellation of removal. The Carriches argue that they met the statutory requirements for cancellation of removal, including the requirement that a qualifying United States citizen or lawfully admitted alien relative would suffer "exceptional and extremely unusual hardship" if the Carriches were removed. 8 U.S.C. § 1229b(b)(1)(A)-(D)(2002). Specifically, they believe that their youngest daughter, a United States citizen, would suffer exceptional and extremely unusual hardship if the family were removed because she would have difficulty adapting to the Mexican educational system and, due to economic conditions in Mexico, the family would be hard-pressed to provide for her basic care. The IJ rejected this argument, concluding that the economic detriment and educational difficulties the daughter would face after removal were neither exceptional nor unusual. The BIA affirmed the IJ's decision pursuant to 8 C.F.R. § 3.1(a)(7) (amended by 67 Fed. Reg. 54,878 (Aug. 26, 2002)),² its streamlining procedures.

The Carriches argue that the BIA's streamlining procedures violated their Fifth Amendment right to due process and that, even if streamlining is constitutional, the discretionary nature of the hardship inquiry precludes streamlining in cancellation of removal cases. We join our sister circuits in holding that streamlining does not violate an alien's due process rights. See Albathani v. INS, 318 F.3d 365, 376-79 (1st Cir.2003); Soadjede v. Ashcroft, 324 F.3d 830, 832-33 (5th Cir.2003); Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.2003); Mendoza v. U.S. Attorney General, 327 F.3d 1283, 1289-90 (11th Cir.2003). We also conclude that we lack jurisdiction to review the specific decision to streamline the Carriches' case because their claim is based on an alleged error in a discretionary hardship determination that we lack jurisdiction to review in the first instance. See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003).

I. THE STREAMLINING REGULATIONS

A dramatic increase in caseload prompted the INS to establish the streamlining procedures in 1999. In considering changes to its adjudication process, the INS documented the exploding caseload — from fewer than 3,000 new appeals in 1984 to in excess of 28,000 appeals in 1998. See Executive Office for Immigration Review; Board of Immigration Appeals: Streamlining, 64 Fed.Reg. 56,135, 56,136 (Oct. 18, 1999) (to be codified at 8 C.F.R. pt. 3) ("Streamlining Final Rule"). That number now exceeds 34,000. See Executive Office for Immigration Review, Statistical Year Book: 2002, at 49 fig. 23, available at http://www.usdoj.gov/eoir/statspub/fy02syb.pdf. This increase, coupled with "[f]requent and significant changes in the complex immigration laws," resulted in a heightened "need for the Board's authoritative guidance in the immigration area...." Streamlining Final Rule, 64 Fed.Reg. 56,136. In an effort to meet its "overriding objective of providing fairness in adjudicating appeals," the BIA decided to limit the use of three-judge appellate panels to cases with "a reasonable possibility of reversible error in the result below." Id.³

Although an IJ's decision is ordinarily reviewed by a three-member panel, the streamlining regulation authorizes a single BIA member to affirm the IJ's decision without opinion in specified circumstances: if "the [BIA] Member determines that the result ... was correct; that any errors... were harmless or nonmaterial; and that (A) the issue on appeal is squarely controlled by existing [BIA] 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 ... are so insubstantial that three-Member review is not warranted." 8 C.F.R. § 3.1(a)(7)(ii).

If an individual BIA member streamlines a case, the Board issues a form order containing the following language: "The Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination." 8 C.F.R. § 3.1(a)(7)(iii). Streamlining thus elevates the IJ's decision to the final agency action that is reviewed by the court of appeal, but it does not mean that the BIA has adopted, or entirely approves of, the IJ's determinations; it only means that the BIA deemed any errors by the IJ to be harmless. Id.; see also Fajardo v. INS, 300 F.3d 1018, 1019 n. 1 (9th Cir.2002) ("The BIA summarily affirmed the IJ's order, which therefore constitutes the final agency decision under review.").

II. DUE PROCESS CHALLENGE

The Carriches claim that the streamlining procedure is unconstitutional because it deprives aliens of due process as guaranteed by the Fifth Amendment. See U.S. Const. Amend. V. Notwithstanding any statutory limitations on judicial review, we retain jurisdiction to review this due process challenge to the INS's procedures. See Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 377 (9th Cir.2003).

Alien petitioners like the Carriches have understandable concerns about the streamlining process, particularly in light of the congressional limitations on federal court review.⁴ See Romero-Torres, 327 F.3d at 892 (holding court lacks jurisdiction to review discretionary decisions regarding cancellation of removal). Their misgivings center around the lack of transparency in the process, the increasing frequency in which the process is invoked, the speed with which appeals are decided, and a belief that the BIA may be abdicating its statutorily-mandated role of appellate review. Although we are not unsympathetic to these concerns, we join the four other circuits that have considered the same constitutional challenge and conclude that streamlining does not violate an alien's due process rights. See Albathani, 318 F.3d at 379; Soadjede, 324 F.3d at 833; Georgis, 328 F.3d at 967; Mendoza, 327 F.3d at 1289.

The First Circuit's opinion in Albathani was the first to address this issue. Its careful reasoning is persuasive and, like the other courts of appeal that followed, we embrace its rationale. As the First Circuit held, any difficulty engendered by the court of appeals reviewing a "BIA decision without knowing its basis" does "not render the scheme a violation of due process or render judicial review...