Quinteros-Mendoza v. Holder

• Citation: 556 F.3d 159
• Decision Date: 11 February 2009
• Docket Number: No. 07-1544.,07-1544.
• Parties: Fernando QUINTEROS-MENDOZA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

556 F.3d 159

Fernando QUINTEROS-MENDOZA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 07-1544.

United States Court of Appeals, Fourth Circuit.

Argued: December 5, 2008.

Decided: February 11, 2009.

ARGUED: Jason Alexander Dzubow, Mensah, Shoemaker & Dzubow, P.L.L.C., Washington, D.C., for Petitioner. Eric Warren Marsteller, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant Director, Margaret Perry, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Petition for review denied by published opinion. Judge MOTZ wrote the opinion, in which Judge MICHAEL and Judge KING joined.

DIANA GRIBBON MOTZ, Circuit Judge:

OPINION

An Immigration Judge (IJ) denied Fernando Quinteros-Mendoza asylum and withholding of removal. In a brief written opinion, a single member of the Board of Immigration Appeals (BIA) affirmed. Quinteros-Mendoza petitions for review, asserting that the BIA erred in refusing to refer his case to a three-member panel and that the single member who did review his case erred in denying him relief. Although we disagree with the Government's contention that we lack jurisdiction to review the BIA's refusal to refer a case to a three-member panel, the BIA's subsequent precedential decision has eliminated the need for such three-judge review in the case at hand. Moreover, because the BIA's decision in this case accords with its subsequent precedential decision, we deny the petition for review.

I.

In April 2004, a gang known as The Maras began targeting Quinteros-Mendoza in El Salvador. The first incident occurred when three gang members attacked and beat him after he took his girlfriend home. This harassment continued on a regular basis, between three to five times per week. In each instance, the gang members sought to extort money from Quinteros-Mendoza.

After a number of attacks at various locations, the gang members confronted Quinteros-Mendoza three times at a Seventh Day Adventist Church in El Salvador, which Quinteros-Mendoza had attended regularly since 1987. The gang demanded money but also threatened to hurt Quinteros-Mendoza if he continued to attend church. Sometime after the third attack at his church, Quinteros-Mendoza capitulated and ceased attending services. The violence and threats did not stop. Although Quinteros-Mendoza called the police on many occasions throughout this ordeal, their response was uniformly ineffectual.

In the face of this harassment, Quinteros-Mendoza fled to the United States and in September 2004 entered without authorization. When the government placed him in removal proceedings, he filed for asylum, alleging that the gang members had persecuted him based on his religion and political opinion and that they would kill him if he returned to El Salvador. Family members confirmed continuing threats against his life.

The IJ found Quinteros-Mendoza's testimony credible and sufficiently corroborated. She further found that the level of harm he feared constituted persecution and that his fear of persecution upon return to El Salvador was well founded. Applying the recently enacted REAL ID Act of 2005, Pub.L. No. 109-13, § 101(a)(3), 119 Stat. 302, 303 (codified at 8 U.S.C. § 1158(b)(1)(B)(i) (2006)), the IJ nonetheless denied asylum and withholding of removal because she found that neither religion nor political opinion was a "central reason" for the persecution.

In a brief opinion pursuant to BIA "streamlining" regulations, see 8 C.F.R. § 1003.1(e)(5)-(6) (2008), a single member of the BIA affirmed, concurring that Quinteros-Mendoza's religion was not "at least one central reason" for the persecution. In this appeal, Quinteros-Mendoza argues that the BIA erred (1) in failing to refer his case to a three-member panel, and (2) in its interpretation and application of the REAL ID Act's "one central reason" standard.

II.

At the time the BIA reviewed Quinteros-Mendoza's claim, a three-member panel had not interpreted the "one central reason" provision of the REAL ID Act of 2005. Quinteros-Mendoza argues that the BIA violated its own regulations by refusing to refer his case to such a panel in order "to establish a precedent" construing that part of the REAL ID Act. 8 C.F.R. § 1003.1(e)(6)(ii) (2008). The Government sharply disagrees, contending that Congress has foreclosed judicial review of BIA "streamlining" decisions. Alternatively, the Government argues that the BIA's subsequent interpretation of this provision moots the need for three-member review in this case.

A.

We first address whether Congress has foreclosed our review of BIA streamlining decisions. Although the BIA has broad discretion to enact appropriate administrative regulations, like the streamlining provisions at issue here, see Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278-83 (4th Cir.2004), that broad discretion does not shield the BIA's implementation and execution of those regulations from judicial review.¹ Indeed, we recently exercised precisely this jurisdiction. See Li Fang Lin v. Mukasey, 517 F.3d 685, 693-94 (4th Cir.2008). There we noted that the "BIA [had] yet to provide a published, precedential opinion" (i.e., one issued by a three-member panel) addressing a particular legal question. Id. at 693. To avoid "violating fundamental separation-of-powers principles," in Li Fang Lin, we remanded the case to the BIA with instructions to have a three-person panel resolve that question. Id. at 694. Of course, if we lacked jurisdiction to review the BIA's initial decision to assign the case to a one-member panel, we would be powerless to order such a remand.

In Li Fang Lin we did not, however, explain our rationale for finding jurisdiction. We think it is worthwhile to do so now, in light of the division in the circuits on this question. Compare Purveegiin v. Gonzales, 448 F.3d 684, 691-92 (3d Cir. 2006) (finding jurisdiction to review BIA streamlining decisions), Chong Shin Chen v. Ashcroft, 378 F.3d 1081, 1087-88 (9th Cir.2004) (same), and Batalova v. Ashcroft, 355 F.3d 1246, 1252-53 (10th Cir.2004) (same), with Guyadin v. Gonzales, 449 F.3d 465, 469-70 (2d Cir.2006) (finding no jurisdiction over such decisions), and Bropleh v. Gonzales, 428 F.3d 772, 779 (8th Cir.2005) (same).

Our disposition in Li Fang Lin reflects the strong presumption favoring judicial review of agency action. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986). Congress may overcome this strong presumption in two limited ways: through an express jurisdiction-stripping provision, see 5 U.S.C. § 701(a)(1) (2006), or by committing agency action "to agency discretion by law," see id. § 701(a)(2). No express jurisdiction-stripping provision applies here; the Government contends, however, that Congress has implicitly stripped us of jurisdiction by committing streamlining decisions to agency discretion.

The Supreme Court has drawn the "committed to agency discretion" exception extremely narrowly, applying it only "in those rare circumstances where the relevant statute `is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.'" Lincoln v. Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)). Here, no statute evinces clear and convincing congressional intent to commit BIA streamlining decisions to that agency's discretion by law. See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 63-64, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (requiring a statute to evince clear and convincing evidence that Congress meant to foreclose review). Instead, Congress merely has given the agency the power to enact appropriate administrative regulations, mandating that the Secretary of Homeland Security "shall establish such regulations; ... issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of [the immigration laws]." 8 U.S.C. § 1103(a)(3) (2006).

Moreover, contrary to the Government's contention, the agency's own regulations do not provide the BIA with the claimed unreviewable discretion. The regulations do state that the BIA "may only" refer a case to a three-member panel if one of six factors is present. 8 C.F.R. § 1003.1(e)(6) (2008).² But the regulations also prescribe that "[u]nless a case meets the standards for assignment to a three-member panel under [§ 1003. 1(e)(6)], all cases shall be assigned to a single Board member for disposition." Id. § 1003.1(e) (emphasis added). This certainly suggests that if a case does meet the standard for adjudication by a three-member panel, a single member shall not decide it. See Purveegiin, 448 F.3d at 689. The regulations further direct a Board member to decide a case referred to him "unless the Board member designates the case for decision by a three-member panel" because it squarely implicates one of the six § 1003.1(e)(6) factors. 8 C.F.R. § 1003.1(e)(5) (emphasis added).³

Moreover, the six factors found in § 1003.1(e)(6) are not cast in such discretionary terms as to preclude meaningful review of them. See Batalova, 355 F.3d at 1253 (noting that the six factors "are the kinds of issues we routinely consider in reviewing cases, and they have nothing to do with the BIA's caseload or other internal circumstances"). For instance, under the abuse of discretion standard, we regularly review the presence or absence of "clearly erroneous factual determination[s]," 8 C.F.R. § 1003.1(e)(6)(v) (2008). See, e.g., Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.1999). Likewise, it lies within our purview to review whether an immigration judge's decision was ...