Ngure v. Ashcroft

• Citation: 367 F.3d 975
• Decision Date: 17 May 2004
• Docket Number: No. 02-3879.,02-3879.
• Parties: Joseph NGURE, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

367 F.3d 975

Joseph NGURE, Petitioner, v. John D. ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3879.

United States Court of Appeals, Eighth Circuit.

Submitted: December 15, 2003.

Filed: May 17, 2004.

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Counsel who presented argument on behalf of the petitioner was Timothy E. Wichmer of St. Louis, MO.

Counsel who presented argument on behalf of the respondent was Jennifer Paisner, USDOJ, Office of Immigration Litigation, Washington, DC. Michael T. Dougherty of the Office of Immigration Litigation submitted respondent's brief.

Before MELLOY, BEAM, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Joseph Ngure petitions for review of the decision of the Board of Immigration Appeals ("BIA") denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture. We hold that the determination whether the BIA properly employed its streamlined "affirmance without opinion" procedure with respect to Ngure's claims is committed to agency discretion by law. Reviewing the decision of the immigration judge ("IJ"), which was affirmed without opinion by the BIA, we conclude that this court lacks jurisdiction to review the IJ's determination that Ngure's application for asylum was untimely. As to those claims over which we have jurisdiction, we deny the petition for review.

I.

On August 30, 1995, Joseph Ngure, a native and citizen of Kenya, entered the United States as a nonimmigrant student to attend Principia College in Elsah, Illinois. The terms of his J-1 visa permitted him to stay in the United States until June 15, 1996. On January 25, 2000, the INS issued a Notice to Appear charging that Ngure was removable for failing to maintain his nonimmigrant status. Ngure admitted that he was removable, and on May 17, 2000, he applied for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture.

Ngure is a member of the Kikuyu tribe, which is the largest tribe in Kenya. While Ngure was a student at the University of Nairobi in 1987, he participated in a week-long pro-democracy demonstration protesting, among other things, the detention of various political prisoners and the marginalization of tribes such as the Kikuyu. Due to violence that erupted at the demonstration, the university closed. At that time, Ngure was arrested while he was in his room. Soon after he arrived at the police station, he secured his release because he knew the superintendent of police. Ngure claims that his friend Charles Kirigua was arrested and tortured for his involvement in the demonstration, but Mr. Kirigua actually told Ngure that he was injured during a robbery.

Again, in 1990, Ngure participated in a pro-democracy demonstration that became riotous, and government forces arrested hundreds of participants, including Ngure. When he was arrested, he was hit with batons and truncheons. He was detained at a police station for one week, during which time he was interrogated, "roughed up," and subjected to cold and crowded conditions. The interrogations focused on whether he was affiliated with any dissident Kenyan groups. Ngure told the officials that while he was not a member of the groups, he sympathized with their causes. The following week Ngure was questioned in more "tranquil" settings at the Directorate of Intelligence. He was then returned to the police station for another week, at which time Ngure's brother-in-law bailed him out of jail, and the government dropped the charges against him.

Ngure is a follower of the Christian Science faith. In 1993, his Christian Science group met in the park, but police officials advised them that they needed to have a permit to meet in the park and ordered them to disperse. The police took names, but none of the meeting attendees were harmed or arrested.

When Ngure was working in Nairobi in 1994, he was arrested as he passed by a demonstration-turned-riot at a park. He was charged with participating in illegal demonstrations, and was released the next morning on a recognizance bond. The bond required Ngure to report to the police station on a monthly basis until the riots were resolved.

After Ngure left Kenya for the United States in 1995, the Kenyan police went to the home of Ngure's family because he failed to report as scheduled pursuant to the bond. When Ngure was not found, an arrest warrant was issued on February 5, 1996, commanding the arrest of Ngure and ordering him to be brought before the court to answer the charge that he "participated in illegal demonstrations at Uhuru Park's Freedom Corner and defaulting on his own recognizance to appear."

In November 2000, an IJ conducted an evidentiary hearing concerning Ngure's removal from the United States. The IJ concluded that Ngure was ineligible for asylum because he did not file his application within one year of arriving in the United States and did not demonstrate any "changed" or "extraordinary circumstances" that caused his failure to apply within that time period. See 8 U.S.C. § 1158(a)(2)(B) & (D). Alternatively, the IJ found that although Ngure's testimony was credible, he did not suffer past persecution or have a well-founded fear of future persecution on account of his membership in the Kikuyu tribe, political opinions, or religious beliefs. Based on the same evidence, the IJ denied his requests for withholding of removal and relief under the Convention Against Torture. The BIA subsequently affirmed the IJ's decision without opinion, pursuant to 8 C.F.R. § 3.1(e)(4) (2003).¹ Pursuant to agency regulations, the IJ's decision became the final agency determination. 8 C.F.R. § 3.1(e)(4)(ii).

II.

Prior to 1999, a panel of three BIA members reviewed the decisions of immigration judges. After concluding that the rapidly growing caseload of the Board of Immigration Appeals was impeding its ability to provide fair, timely, and uniform adjudications, Attorney General Reno instituted the BIA's affirmance without opinion ("AWO") procedure in 1999. Executive Office for Immigration Review; Board of Immigration Appeals: Streamlining, 64 Fed.Reg. 56,135 (Oct. 18, 1999). Attorney General Ashcroft amended the AWO regulations in 2002 in an effort to strengthen and enhance the review process. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed.Reg. 54,878 (Aug. 26, 2002).

The streamlining regulations provide that a single board member shall "affirm without opinion" an IJ's decision in certain circumstances. The BIA member is required to employ the AWO procedure if the member finds that the result reached by the IJ was correct, that any errors by the IJ were harmless or nonmaterial, and that either "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 "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." 8 C.F.R. § 3.1(e)(4)(i). The decision to affirm without opinion does not necessarily approve the reasoning of the IJ, but it does signify that the BIA agrees that the result was correct because any errors were harmless or nonmaterial. 8 C.F.R. § 3.1(e)(4)(ii). Once the BIA affirms a decision without opinion, the IJ's decision becomes the final agency determination. Id.; Palomino v. Ashcroft, 354 F.3d 942, 943 (8th Cir.2004).

Our court, like every court of appeals to consider the question, has held that the AWO procedure comports with the Due Process Clause of the Fifth Amendment. Loulou v. Ashcroft, 354 F.3d 706, 708-09 (8th Cir.2003), amended by, No. 02-3004, slip op. (8th Cir. April 28, 2004); Belbruno v. Ashcroft, 362 F.3d 272, 282-83 (4th Cir.2004); Yuk v. Ashcroft, 355 F.3d 1222, 1229-32 (10th Cir.2004); Dia v. Ashcroft, 353 F.3d 228, 238-45 (3d Cir.2003) (en banc); Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.2003); Mendoza v. U.S. Att'y Gen., 327 F.3d 1283, 1288-89 (11th Cir.2003); Albathani v. INS, 318 F.3d 365, 377 (1st Cir.2003). In Loulou, we explained that an alien has no constitutional or statutory right to an administrative appeal from the decision of an IJ. 354 F.3d at 708. Any such right, we observed, is created by regulations issued by the Attorney General, and the current regulations do not entitle an alien to a full opinion by the BIA. Id. As a matter of constitutional law, the alien is entitled only to a reasoned decision from the agency, not from a particular component of the agency. Yuk, 355 F.3d at 1230; Dia, 353 F.3d at 241; Albathani, 318 F.3d at 377. We concluded in Loulou that streamlined review did not compromise our ability to review the decision of the Attorney General, because we can review directly the decision of the IJ. 354 F.3d at 708. Accordingly, we rejected the constitutional challenge to the AWO procedure. Id. at 708-09.

Ngure raises a nonconstitutional challenge to the use of the streamlining procedure in his case.² He argues that the BIA's decision to affirm without opinion does not comply with the governing regulations, and that this court should remand the case to the BIA for issuance of a written opinion by a three-member panel. The government implicitly concedes that as a general matter, the Justice Department's failure to follow its own regulations can be challenged under the Administrative Procedure Act ("APA"). See Webster v. Doe, 486 U.S. 592, 602 n. 7, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988); Vitarelli v. Seaton, 359 U.S. 535, 539-40, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 372, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). The government contends, however, that the decision to employ the AWO procedure in a given case is "committed to agency discretion by law," within the meaning of the APA, 5 U.S.C. § 701(a)(2), and that we have no jurisdiction to review it. Our jurisdiction,...