Guentchev v. I.N.S.

• Decision Date: 04 March 1996
• Docket Number: No. 95-2309,95-2309
• Citation: 77 F.3d 1036
• Parties: Ilko GUENTCHEV, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1036

77 F.3d 1036

33 Fed.R.Serv.3d 1124

Ilko GUENTCHEV, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-2309.

United States Court of Appeals Seventh Circuit.

Argued Jan. 24, 1996.

Decided March 4, 1996.

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

Royal F. Berg (argued), Chicago, IL, for Petitioner.

Janet Reno, Office of the United States Attorney General, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, James B. Burns, Office of the United States Attorney, Chicago, IL, William J. Howard, David M. McConnell, Marion E. Guyton, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, and Ernesto H. Molina, Jr. (argued), United States Department of Justice, Washington, DC, for Respondent.

Before COFFEY, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Ilko Guentchev wanted to be a policeman in his native Bulgaria. He was turned down--because, he says, he practiced the Eastern Orthodox faith, and because some ancestors had been police before the communists came to power in 1944, for which he was unwilling to atone by joining the Communist Party. So he took other, less satisfying, employment. In 1990 Guentchev arrived in the United States as a tourist and did not leave when his visa expired. Instead of approaching the INS to claim asylum as a refugee, he kept his head low. After the INS caught up with him, Guentchev argued that his religion and family history had been bases of persecution, supporting his demand for asylum under 8 U.S.C. § 1158(a) and withholding of deportation under 8 U.S.C. § 1253(h).

The immigration judge was not impressed by the idea that inability to work in Bulgaria as a policeman is a form of persecution allowing one to live permanently in the United States--especially not when the government of Todor Zhivkov fell in November 1989 and has been replaced by a democratic one. Guentchev observes that today's Bulgarian government includes persons who played roles in the repressive pre-1990 regime. Still, the State Department believes that Bulgaria has ceased to persecute people on grounds of religion and politics. The Immigration Judge held that Guentchev had not established either past persecution (he had a good job despite his disappointment at his inability to join the police, and his wife was employed as an accountant) or a probability of future persecution. Substantial evidence supports both aspects of this decision. See INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). If, as Guentchev contends, he is wanted by the Bulgarian military for additional service, this is a burden of civic life that cannot be traced to his religious or political beliefs--or so the immigration judge rationally could (and did) conclude.

What the immigration judge found is not necessarily dispositive, however. The Board of Immigration Appeals usually exercises the statutory power reposed in the Attorney General. Guentchev appealed to the Board, which sent him packing on a two-paragraph order that, beyond formal matters (and a grant of voluntary departure), says only: "As we find that the immigration judge adequately and correctly addressed the issues raised on appeal, his decision is affirmed based upon and for the reasons set forth in that decision." Guentchev argues at length that this summary affirmance violates the due process clause of the fifth amendment.

The Constitution does not entitle aliens to administrative appeals. Even litigants in the federal courts are not constitutionally entitled to multiple layers of review. The Attorney General could dispense with the Board and delegate her powers to the immigration judges, or could give the Board discretion to choose which cases to review (a la the Appeals Council of the Social Security Administration, or the Supreme Court exercising its certiorari power). The combination of a reasoned decision by an administrative law judge plus review in a United States Court of Appeals satisfies constitutional requirements. See also Taylor v. McKeithen, 407 U.S. 191, 194 n. 4, 92 S.Ct. 1980, 1982 n. 4, 32 L.Ed.2d 648 (1972). But the constitutional label is a distraction. Guentchev invokes the principle that agencies must consider claims made to them and give rational explanations for their decisions. E.g., Salameda v. INS, 70 F.3d 447 (7th Cir.1995); Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir.1991). The agency must "announce its decision in terms sufficient to enable a reviewing court to perceive it has heard and thought and not merely reacted." Vergara-Molina, v. INS, 956 F.2d 682, 685 (7th Cir.1992), quoting from Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir.1987). This is a norm of administrative law, which Guentchev insists a summary affirmance violates.

The premise of Guentchev's argument is that, by affirming on the opinion of the immigration judge, the Board has concealed from the reviewing court what the Board thinks of the case--if, indeed, the Board has thought about the case. Perhaps some summary dispositions obscure the Board's reasons, or hide the lack of reasons. What the Board's order says, however, is that the Board agrees with the immigration judge's reasons, and we have no greater reason to doubt that statement than we have to doubt that the explanation in an elaborate opinion is an honest recapitulation of the reasons for decision. To adopt someone else's reasoned explanation is to give reasons. The risk that adoption hides intellectual laziness, or intellectual dishonesty, is no greater than the risk that a judicial opinion drafted by a law clerk befogs the judge's thoughts. District judges regularly adopt the reports of magistrates; some appellate courts adopt the work of commissioners. Writing imposes mental discipline, but we lack any principled ground to declare that members of the Board must use words different from those the immigration judge selected. It is therefore no surprise that this court has repeatedly held that the Board fulfils its duty by summarily affirming an immigration judge's opinion. Urukov v. INS, 55 F.3d 222, 227-28 (7th Cir.1995); Cuevas v. INS, 43 F.3d 1167, 1170 (7th Cir.1995); Castaneda-Suarez v. INS, 993 F.2d 142, 146 (7th Cir.1993). Guentchev tells us that Cuevas is different because the Board mentioned the issues that the immigration judge had decided, but so what? The point is that an appellate tribunal is entitled to adopt the opinion of its predecessor; the form of words it chooses to do so is irrelevant. Following summary affirmance, we take the immigration judge's explanation as the Board's. Dobrican v. INS, 77 F.3d 164, 167 (7th Cir.1996). Cf. Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

Substantial evidence supporting the immigration judge's decision therefore is dispositive against Guentchev. He protests that developments in Bulgaria after the immigration judge's decision of 1993 call its analysis into question. But he did not make this argument to the Board, even though the Board could have received additional submissions after the 1994 Bulgarian elections, so it is foreclosed...