353 F.3d 228 (3rd Cir. 2003), 02-2460, Dia v. Ashcroft

Docket Nº:02-2460
Citation:353 F.3d 228
Party Name:Dia v. Ashcroft
Case Date:December 22, 2003
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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353 F.3d 228 (3rd Cir. 2003)

Saidou DIA, Petitioner


John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-2460.

United States Court of Appeals, Third Circuit

December 22, 2003

Argued Feb. 3, 2003.

Reargued En Banc May 28, 2003.

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Brett S. Deutsch [Argued], Cindy Warner, Orrick, Herrington & Sutcliffe, New York City, for Petitioner.

Christopher C. Fuller, Allen W. Hausman, John M. McAdams, Jr., Greg D. Mack [Argued], U.S. Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, DC, for Respondent.

Nadine K. Wettstein [Argued], American Immigration Law Foundation, Washington, DC, for Amicus-appellant, American Immigration Law Foundation.

Steven J. Kolleeny, New York City, for Amicus-appellant, The Lawyers Committee for Human Rights ("Lawyers Committee").



RENDELL, Circuit Judge.


I. THE STREAMLINING REGULATIONS ...................................... 234

A. Background ................................................. 234

B. Statutory and Regulatory Scheme ............................ 236

C. Constitutional Challenges .................................. 238

II. THE AGENCY'S DENIAL OF RELIEF ..................................... 245

A. Dia's Testimony ............................................ 245

B. Burden and Standard of Review .............................. 247

C. The Immigration Judge's Decision ........................... 250

1. Past Persecution ...................................... 251

2. Procurement of a Passport and Visa .................... 256

3. Future Persecution .................................... 259

III. CONCLUSION ........................................................ 260

Judge Rendell filed the opinion of the Court in which Chief Judge Scirica and Judges Nygaard, Barry, Fuentes, and Smith joined amd Judges McKee, Ambro and Becker joined as to Part II. Judge Alito, joined by Judges Solviter and Roth, filed an opinion concurring as to Part I and dissenting as to Part II. Judge Stapleton filed an opinion dissenting, in which Judges McKee, Ambro and Becker joined. Judge McKee filed an opinion concurring as to Part II.

In 2001, the Immigration and Naturalization Service (INS) charged Saidou Dia, a native of the Republic of Guinea, with removability for illegal entry into the United States. Dia conceded removability but applied for relief, seeking asylum, withholding of removal, and relief under the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment. 1 Dia alleged that he had been, and would be, persecuted in Guinea due to his

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actual and imputed political opinions. The Immigration Judge (IJ) rejected Dia's allegations, finding that she was "not convinced that [Dia] has suffered past persecution" or that Dia would be persecuted and/or killed if he returned to Guinea. The IJ based her conclusion solely on her determination that Dia was not credible. Dia appealed to the Board of Immigration Appeals (BIA), which summarily affirmed the IJ's decision under its streamlining regulations. This petition for review followed. Our jurisdiction arises under 8 U.S.C. § 1252.

Two issues are before the court for consideration en banc:

First, we will review whether the streamlining regulations promulgated by the Attorney General are either inconsistent with the INA, or violative of Dia's due process rights under the Fifth Amendment. See U.S. Const. amend. V.

Second, we will review the adverse credibility determination made by the Immigration Judge and summarily affirmed by the BIA.

As to the first issue, we determine that the streamlining regulations are valid.

As to the second issue, however, we conclude that the IJ's analysis of Dia's credibility was based on reasoning that was at best unexplained and at worst speculative. Accordingly, it was not supported by substantial evidence.

We will grant the petition for review, vacate the order, and remand to the BIA to give the IJ the opportunity to explain or bolster her analysis.


In upholding the IJ's determination denying Dia relief from removal, the BIA did not issue an opinion, but, instead, issued an "affirmance without opinion" (AWO) under its streamlining regulations. See 8 C.F.R. § 3.1(a)(7) (2002). The streamlining regulations have recently been the subject of many unsuccessful attacks. See, e.g., Khattak v. Ashcroft, 332 F.3d 250, 253 (4th Cir. 2003) (rejecting the argument that the regulations are "impermissibly retroactive"); Albathani v. INS, 318 F.3d 365, 377 (1st Cir. 2003) (rejecting a due process challenge); Capital Area Immigrants' Rights Coalition v. United States Dep't of Justice, 264 F.Supp.2d 14, 39 (D.D.C.2003) (rejecting a challenge under the Administrative Procedure Act). Dia, with able support of amici, broadly attacks the streamlining regulations on two grounds: (1) as inconsistent with the INA; and (2) as violative of his due process rights.

A. Background

The Supreme Court has " 'long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.' " Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed. 956 (1953)). With limited exceptions, Congress, in the INA, charges the Attorney General "with the administration and enforcement of [the INA] and other laws

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relating to the immigration and naturalization of aliens." 8 U.S.C. § 1103(a)(1) (2002). Pursuant to this power, Congress has mandated that the Attorney General "shall establish such regulations; ... issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under [the INA]." 8 U.S.C. § 1103(a)(3) (2002). Congress has further authorized that "[t]he Attorney General may provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with this Act." 8 U.S.C. § 1158(d)(5)(B) (2002).

The Attorney General has delegated to the BIA many of his responsibilities under the immigration laws, see 1 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure § 3.02[1] (rev. ed. 2003) (stating that the BIA "exercises so much of the Attorney General's authority under the immigration and nationality laws as the Attorney General may delegate to it"), and has further delegated supervision of the BIA to the Department of Justice's Executive Office of Immigration Review. Id. The BIA, established by regulation, has existed in various guises and has held various responsibilities since 1922. Id. at § 3.05[1]. Initially, immigration laws were enforced by the Secretary of Labor, under whose supervision the administrative immigration appellate body was known as the "Board of Review." Id. After Congress transferred the responsibility for immigration enforcement to the Attorney General in 1940, the Board of Review was renamed the Board of Immigration Appeals. In its present form, the BIA has been described as "a quasi-judicial body with exclusively appellate functions." Id.

The Attorney General promulgated the streamlining regulations in 1999 when the Board was faced with a crushing caseload, the number of cases having increased exponentially in a little over a decade. See Executive Office of 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). See generally Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878, 54,878-79 (Aug. 26, 2002) (to be codified at 8 C.F.R. pt. 3). Under the regulations, "the Chairman [of the BIA] may designate certain categories of cases as suitable for review" by designated Board members "who are authorized to affirm decisions of Immigration Judges ... without opinion." 8 C.F.R. § 3.1(a)(7)(i) (2002). The single BIA member to whom the case is assigned may affirm an IJ's decision in a single sentence without an opinion if he or she determines that the result was correct, 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). 2 Each AWO is exactly the same. It reads: "The Board affirms, without opinion, the results of the decision below. The decision is, therefore, the final agency determination." See 8 C.F.R. § 3.1(a)(7)(iii) (2002); see also Executive Office of Immigration Review: Board of Immigration Appeals Streamlining, 64 Fed. Reg. at 56,137-38 ("The decision rendered below will be the final agency decision for judicial review purposes....

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[T]he Immigration Judge's decision becomes the decision reviewed."). Such an order does not necessarily imply approval of all of the reasoning of the IJ's decision, but does signify that the reviewing Board member considered that any errors by the IJ were harmless or immaterial. Id. If the single BIA member decides that the decision is inappropriate for affirmance without an opinion, the case is assigned to a three-member panel for review and decision. 8 C.F.R. § 3.1(a)(7)(iv) (2002). That panel, however, is also authorized to determine that a case should be affirmed without an opinion. Id.


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