*1 1081 past persecution to victims of whose fear IV rebutted, persecution of future has been a second provision provides The new 1208.13(b)(l)(i)(A), (B), § if see 8 C.F.R. past persecu- for victims of avenue of relief (1) asylum seeker “compel- establishes persecution of future on tion whose fear ling being unwilling reasons for or unable has been protected ground of a account country arising to return to the out of the country by changed evidence of rebutted severity past persecution,” 8 C.F.R. harbors within his or conditions or safe (2) 1208.13(b)(l)(iii)(A), § “a reasonable country. her home See 8 C.F.R. possibility may that he or she suffer other (B). 1208.13(l)(i)(A), reg- § Under the old upon serious harm removal to that coun- ulations, persecution of past a victim 1208.13(b)(l)(iii)(B). § try,” 8 C.F.R. had persecution fear of future been whose if eligible asylum only rebutted was V to create past persecution was so severe as express We no as to whether why applicant reason compelling qualifies for relief under C.F.R. Belishta unwilling to return to his or her would be 1208.13(b)(l)(iii)(B).2 Instead, stay § country. home See C.F.R. permit reopen our mandate to the BIA to 1208.13(b)(l)(iii)(A); Fed.Reg. Belishta’s case to determine the first (June 1998). Recognizing that asylum instance she is entitled to whether overly restric- “represented] this rule provision. under the new See 8 U.S.C. pro- approach,” tive General Ortiz, 1252(d)(2); 1208.13(b)(l)(iii)(B): at 1152. F.3d mulgated Section Department believes it is [Justice] The in part, Petition for Review DENIED appropriate to broaden the standards in part; and DISMISSED Mandate for the exercise of discretion days for 120 from the date of STAYED example, may For there be cases cases. filing of this Order. to offer appropriate protec-
where per- applicants tion to who have suffered past secution and who are risk to a of future harm that is not related Therefore, the rule protected ground. includes, as a factor relevant to the exer- Petitioner, CHEN, CHONG SHIN discretion, applicant cise of whether the may possibility a reasonable face ASHCROFT, Attorney John upon harm” return to the “other serious General, Respondent. country origin or last habitual resi- of an dence. As with other element No. 02-73473. claim, appli- on the
asylum burden is Appeals, States Court of United grounds cant to establish that such exist Ninth Circuit. grant a humanitarian and warrant 15, 2004. Argued April and Submitted past persecution alone. asylum based Fed.Reg. at 31947. Aug. 2004. Filed Therefore, it is now within the dis grant asylum BIA to
cretion of the IJ and 1208.13(b)(l)(iii)(A). We past persecution 8 C.F.R. IJ concluded that the under compelled disagree. Belishta was "not ... severe” and suffered are not qualify for relief that she therefore does *2 WALLACE, KOZINSKI,
Before *3 THOMAS, Judges. Circuit THOMAS, Judge: Circuit review, petition In this for we consider summary affirmance of an whether (“IJ”) Judge’s by the Immigration decision (“BIA”) Immigration Appeals Board of vi- streamlining regulations. olated the BIA’s conclude that because the issue We presented squarely by controlled was BIA existing precedent, or federal court BIA in summarily affirming erred grant petition IJ’s decision: We for petition review and remand the BIA.
I Chen,
Chong a native and citizen of Shin China, People’s Republic of entered without on inspection the United States later, dayA he was December 1989. custody by Immigration taken into (“INS”), served Naturalization Service charging with an Order to Show Cause deportable was from the United he States, and released on bond. His case did administratively closed when he hearing. up not show for a scheduled Slattery, Dis- August William S. INS, informed Chen trict Director of the Attorney had by letter that General depar- enforced granted Chen “deferred to Executive Order pursuant ture” status 12,711 January commu- until that: “You apprised nication also Chen immigra- apply for right have the you may you for which believe tion benefit CA, Francisco, Alan Sampson, San in though you are this eligible even be petitioner. program.” Byrd, Regina Ethan B. Kanter and 12,711, Justice, which under Department of Executive Order
United States de- DC, granted deferred enforced respondent. for the Chen was Washington, (c) order; status, of this authorization was issued President date parture 11, 1990, employment of PRC nationals April Bush such H.W. George (d) 1, 1994; through Square upris- January notice of the Tiananmen the wake (if expiration nonimmigrant of of status provided: It Beijing, China. ing institution applicable) rather than the authority me as Presi- By the vested explana- deportation proceedings, by the Constitution and laws dent options tion of available for PRC America, United States eligible nationals for deferral enforced Secretary of and the State are General departure nonimmigrant whose status hereby their authori- ordered exercise expired. has Immigration including that under the ty, *4 4. (8 Secretary Sec. The of State and the 1101— Nationality Act U.S.C. and Attorney to pro General are directed 1557), as follows: for vide enhanced consideration under Attorney The is di- 1. General Section immigration the laws for individuals steps necessary any to take to rected any country express from who fear of 1, 1994, January until the enforced defer persecution upon country to their return People’s of all of the departure nationals country’s policy related to that of forced (PRC) and their de- Republic of China sterilization, or as im abortion- coerced in pendents who were the United States plemented Attorney the General’s 1989, up after June to and on or 29,1990. regulation January effective (herein- including the date of this order Attorney 5. Sec. The General is direct- nationals”). after “such PRC Immigration to ensure ed that the and Secretary 2. of State and Sec. The Naturalization finalizes Service and Attorney to take all General are directed public makes on the position its issue of steps necessary respect to such with F-l training for in visa individuals sta- (a) through nationals waive Jan- PRC to tus and the issue of reinstatement 1, 1994, the of a uary requirement valid nonimmigrant into lawful status of such (b) provide and passport process and have PRC nationals who withdrawn documents, necessary both within the applications asylum. their for States at U.S. consulates United and Sec. 6. The of Departments Justice and overseas, to facilitate travel across the are State directed to consider other reentry of other nations and borders steps to assist such PRC nationals into the United States in the same sta- them protections efforts to utilize the upon depar- tus such PRC had nationals that I have pursuant extended to this ture. order. Secretary 3. The of Sec. State 7. This Sec. order shall be effective
Attorney pro- General are directed to immediately. (a) following protections: vide the irre- of 2-year was, vocable waiver home coun- The effect of the Executive Order try requirement may President, authority residence be under the 1, 1994, January until for suspend exercised such until departure enforced Jan- nationals; (b) uary maintenance of law- 1994 of any People’s Republic PRC of adjustment purposes ful status for national China who was the United change nonimmigrant status or In policy status States. furtherance con- Order, for PRC who underlying nationals were in cerns the Executive lawful status at Congress time on after enacted Chinese Student 5, 1989, (“CSPA”), up including Act June to and the Protection of 1992 8 U.S.C. contended, Therefore, they could the INS permanently altered which for process admitted to the United States be- adjustment of status not be standard statute’s inspection. met the they nationals who cause had entered without Chinese September In Chen requirements. Id. for with the INS timely application
filed claims, reviewing the BIA con- His of status under CSPA. adjustment statutory analysis a careful ducted ground denied on the application was only legal authority concluded in- States without he entered the United stay in the allowing the aliens United inadmissible and was therefore spection, parole authority was the advance States 245(a). deporta- In his section under INA 212(d) Immigra- contained section in fact argued that he was hearing, tion he (“INA”), tion and Naturalization Act which 245(a) he because under section admissible provides: into the coun- effectively paroled had been departure his enforced try by having had may in his discre- General disagreed preter- The IJ deferred. parole tion into the United States tem- adjustment of application for mitted his under such conditions as he porarily voluntary status, depar- him granted but emergent reasons or may prescribe *5 BIA, he renewed appeal to the ture. On strictly public in the reasons deemed that he argued and also argument, this for any applying interest alien admission adjustment of for eligible apply to States, parole to the but such of United 245(1). BIA under section status an regarded alien shall not be as summarily pursuant affirmed 8 C.F.R. of the alien and when the admission 3.1(a)(7) (now located at 8 C.F.R. shall, in parole of such the purposes 1003.1(a)(7)). timely pe- filed this Chen General, have for review. tition served, shall forthwith been the alien custody or be returned to the return II paroled he was and thereaf- from which has question a novel that Chen raises continue to dealt ter his case shall be BIA this by the not been addressed any as that of in the same manner with argues He source Court. admission to the applicant other for power to issue Executive Or- President’s United States. 12,711 only pow- could derive from der legal basis for the determining In reasons, Thus, a grant parole. Chen er States, the presence in the United aliens’ sta- departure enforced grant of deferred BIA noted: grant parole, a of must be construed as tus ad- eligible make
which would Chen of, had Service th,e are unaware We under the CSPA. justment of status us, authority making provided not BIA support argument bring has for the Government lawful O, N. 16 I. & precedent. Matter other aliens into the United States these of (1977), BIA considered authority granted Dec. 344 parole than the brought 212(d) 126 aliens who were status of Attorney General under section of the evacuation part States as United the Act. sought admission of Vietnam O, at 16 I. & N. 348. Matter of The INS con- States. Id. United ap- BIA held that the Accordingly, the pa- had not been the aliens tended into the United States, rather, paroled had been plicants but roled into the United liens treated as and could not be States inspection had been deferred. their review is not that three-Member in- stantial country without entered who had warranted. spection. 1003.1(a)(7)(h). 8 C.F.R. situation is indis- that his argues Chen BIA’s decision does Because the Executive Order because tinguishable subsection not indicate which harborage in the temporary provided it found to author streamlining regulation States, only source possible and the United affirmance, consider summary ize provisions authority parole is the of such It is applies. whether either subsection on that his release argues He the INA. (A) pro in this case that subsection clear United States entry into the upon bond authority the BIA to stream no vided as considerations the same
was based There appeal.1 line Chen’s administrative that the Execu- those in Matter precedent no BIA or federal court parole the advance confirmed tive Order legal issue precise controls the squarely reasons, Therefore, the IJ he status. has raised a novel by Chen. He presented solely on application his denying erred legal and factual issue. in the United States that he was the basis in affirming the BIA erred illegally, and (B), the deter As for subsection summarily. review is mination that three-Member appeals limited to those
warranted is legal questions 'factual and which “the Ill are insubstantial.” raised on a caseload and burgeoning To address agency great deal of defer We afford delay, pro the INS adjudicatory growing regulations. its own interprets ence when it in 1999 to “stream regulations mulgated INS, 998, 1004 La l *6 Execu appeals. See administrative line” Cir.2001). “However, to we need not defer Review; Immigration tive Office for if reading regulation BIA’s of an INS Appeals: Stream Immigration Board of compelled by the reading an alternative is 56,135-36 56,135 at Fed.Reg. lining, 64 language.” (quoting Id. regulation’s plain 1999). (Oct. 18, adoption of the Prior to Shalala, v. 512 Thomas Univ. Jefferson judge a three streamlining regulations, 504, 512, 2381, 114 129 L.Ed.2d U.S. S.Ct. decision. an IJ’s panel BIA would review (alterations (1994)) quota 405 internal a regulations authorized streamlining The omitted). raised questions tion marks The deci single BIA to affirm the IJ’s member as appeal in cannot be described sion without if: legal of the “insubstantial.” Resolution by factual issues raised Chen affects that the the Board Member determines correct; any every People’s Republic of China national ... that errors result was nonmaterial; illegally who entered the United States but were harmless or (A) squarely granted depar was then deferred enforced appeal is the issue 12,711, a or federal ture status Executive Order by existing controlled Board every to Peo sweeping applied not involve the Order that precedent court and does national ple’s Republic a novel fact of China who application precedent to (B) in at the time. Ma situation; factual and the United States or Cf. Ashcroft, 559 are so v. 361 F.3d Cir. questions appeal raised on insub- (9th Cir.2003), croft, application F.3d 845 in which argues of the 350 1. Chen also streamlining procedures to him violated his pro- rejected similar due we considered and However, right process. this conten to due challenges. cess Id. at 850-52. by Falcon Carriche v. Ash- tion is foreclosed
1087 (1985); 5 84 L.Ed.2d U.S.C. 2004) to inappropriate it is (holding that 701(a)(2). interpretation of its agency’s to the defer interpretation when that statute governing However, jurisdic do not lack we results).2 to absurd
leads nondiscretionary agency tion over determi See, INS, 133 F.3d e.g., nations. Kalaw v. (A) nor sub- subsection neither Because (9th Cir.1997) (holding under (B) streamlining regulation section rules that “[a]s IIRIRA’s transitional affirmance, BIA summary permits statutory eligibility those elements case, and we streamlining in this erred which do not involve the exercise of discre BIA its reconsider- must remand remains.”). tion, judicial direct review ation. discretionary where it is a inquiry is “[A]n ‘subjective depends on the question’ IV entity judgment person ‘of the value ” the issue.’ Romero-Torres examining that we government argues (9th Cir.2003) Ashcroft, F.3d deci to review the BIA’s jurisdiction lack 1151). Kalaw, at (quoting 133 F.3d underlying to streamline. When sion discretionary is based on IJ decision Indeed, clearly quite Falcon Carriche factor, correct because government position in this rejected government’s jurisdiction. Falcon limits our IIRIRA juris- no federal court case—that there is (“[W]e Carriche, are with F.3d at 855 any aspect streamlining diction over the BIA review whether jurisdiction out “Al- noted that case: decision. We this streamlined improperly government’s though agree with the decision which conclusion, of removal cancellation we do not embrace the ultimate and ex discretionary ‘exceptional only argument that the streamlin- government’s inis dis tremely hardship’ inherently discretionary. unusual factor decision is ing Additionally, Indeed, streamlining under the venerable deci- pute.”). portions of the proce discretionary administrative determinations principle of federal sion are non ordinarily jurisdiction have dure, jurisdiction over admin we lack that we would at See also 852-53. decision that comes within to review.” istrative (“[This] stands con- situation of decisions “committed id. “narrow” class *7 jurisdiction have v. to cases where we by law.” Heckler trast discretion agency In those cases 838, the merits.... 105 S.Ct. to review 470 Chaney, U.S. was insub appeal was so meritless it intraagency Chen's argues con- dissent that 2. The finding may a that agree have motivated that frivolous claims cerns While we stantial. to warrant insubstantial, was too insubstantial Chen's claim O indicates Matter could be agree that While we three-member review. argument than colorable. is more that Chen's may de- influence the Board's such concerns appears Finally, the dissent supra II. See Part case, they trump a cannot to streamline cision the BIA reached argue we can assume that language limiting regulation’s clear However, rejected it. argument and Chen's streamlining "squarely controlled” to cases when the BIA regulations indicate that arguably by precedent at "insubstan- least case, only "approves the re a streamlines that the extent the dissent assumes tial.” To IJ, "reasoning.” by the not the sult” reached dispositive, we have concerns can be l(a)(7)(iii). Tokatly § See also 8 C.F.R. rejected argument already (9th Ashcroft, n. 7 Cir. 371 F.3d 621 v. wholly streamlining a discretion- decision is ("That modify 2004) did not intend the BIA juris- we would lack ary decision over which any precedential create otherwise its rule or 701(a)(2). See diction under 5 U.S.C. infra from the fact that case is evident Carriche, law in this (citing F.3d at Falcon 350 Part IV "). 852-53, 855). appeal 'streamlined.' argues dissent further matter, opinion no as to jurisdic- express have sideration. We would, as a technical streamlining petition. deci- the merits of the the BIA’s to review tion ”). .... sion AND PETITION GRANTED CASE (A) of the of subsection Application REMANDED. clearly non-dis- regulation is streamlining only it can be invoked when cretionary, as WALLACE, dissenting: Judge, Circuit squarely is controlled appeal “the issue on to decide the issues Chen Not content prece- or federal court by existing Board review, petition in his presents application not involve the dent and does majority argument bring his strains fact to a novel situation.” precedent bigger game. within its cross hairs No- (B) not of subsection is also Application petition where in his for review does Chen discretionary. only It can be invoked Immigration contend that the Board of present- issues when the factual (Board) comply failed to with its Appeals agency’s While the ed are “insubstantial.” streamlining regulations affirming, with- presented the issues determination (IJ) Immigration Judge’s opinion, out will often warrant def- are “insubstantial” ruling perma- that he was inadmissible for erence, would at times that determination Immigration nent under and Na- residence absurd, as in this case. be (INA) (a), tionality Act section 245 course, pointed as we out Of 1255(a). challenge does U.S.C. Chen cases, Carriche, in most review of Falcon decision, streamlining the Board’s but he decision on the merits and the the IJ’s clearly limits attack to the Board’s his streamlining “collapse decision into one (or, alleges, determination as he lack 7;n. analysis.” F.3d at 853 see also thereof) (i), regarding INA section 245 Ashcroft, 371 F.3d Garcia-Martinez 1255(i). Moreover, claim U.S.C. Cir.2004). However, constitutional, regulatory. The IJ despite presence decision to streamline 245(i) had no occasion to address section complex a factual legal questions, of novel order, her first broached the Chen scenario, applicability to numerous matter on to the Board. For the a situation. other aliens is not such See opinion, Board to then affirm without Chen (“We Carriche,
Falcon maintains, “any him deprived explana- whether, express although no tion of agency’s partic- decision on the rare, truly a novel case could arise for ular consequently issue” and “violate[d his] which a decision to streamline could be contrast, process rights.” due Chen law....”). found erroneous as matter of 245(a) acknowledges that the IJ’s section ruling agency now final stands as the deci- confronted with novel le When *8 sion, thereby implicitly conceding that the issue, gal we could decide the case based it. properly Board streamlined application of law to the facts. Howev er, we the better course in this believe Logically, General Ashcroft’s discussion agency case is to remand to the for its streamlining mir- the Board’s decision in the in consideration of the issue first rors Chen’s. The General con- where, particularly stance. This is true as response fines his to the constitutional is- hand, question central is the case sue, rightly as he understands Chen to application precedent. of the BIA’s own ... assert “that the Board’s decision vio- petition grant process We therefore for re- lates due because the Board failed 245(i) BIA argument, argu- view and remand to the for its recon- to address his affirms, immi- opinion, ment that was not raised before the without the result of the gration judge.” decision is, below. The decision below therefore, agency the final determination. parties Given have neither 1003.1(a)(7).’” See 8 CFR 8 C.F.R. raised nor briefed the issue of 1003.1(a)(7)(iii). Any explana- “further regulatory compliance, prac Board’s our tion or reasoning” prohibited. Id. Such tice dictates that we not consider it here. compelled administrative succinctness See, e.g., Grigas, Koerner v. 328 F.3d leaves little of substance to review. Cf. (9th Cir.2003) (“In 1039, general, we (8th 975, Ngure Ashcroft, 367 F.3d ordinarily will not consider matters on Cir.2004) (concluding that the Board’s specifically are not and dis streamlining determinations “are not ame- tinctly argued appellant’s opening consideration”). judicial nable to (internal marks, quotation brief.” brack omitted)). ets, if and citations adhere Even the Board’s streamlining We deci approach prudential to this for sound sion were more transparent, rea our review of See, e.g., Indep. always prove “unnecessary sons. Towers Wash. v. will almost (9th Washington, duplicative.” 350 F.3d Cir. and Falcon Carriche v. Ash 2003) (“Our (9th Cir.2003). system croft, adversarial relies on 350 F.3d We recognized to inform the have advocates discussion court.”); and raise the issues to the Abo nature of streamlining proce- [t]he INS, vian v. 219 F.3d Cir. [appellate] dures makes review ... 2000) (“There (Wallace, J., dissenting) is a impractical unnecessary.... both In court, lacking analysis risk that case, deciding whether to streamline a ordinarily provided by parties, adversarial analyzes individual member [Board] wrong will reach the conclusion on the the merits of the IJ’s decision to deter- ”). poor precedent merits and create .... correct, if mine the decision was if the majority ignores nonetheless these novel, factual situation is or if errors principles proceeds, unguided by Similarly, in were harmless. order to parties, precedenWsetting to issue a deci streamlining determine whether these significant sion on a issue. Since I dis we, too, properly applied, factors were charts, agree majority with the course the required would be to examine the merits I dissent. decision; of the IJ’s otherwise we could
not assess whether the decision cor- I. rect or whether it met other streamlin- ing criteria. yet adjudicate petition We have (internal omitted). solely
review based on the merits of a Id. at citation 853-54 matter, then, Board decision to practical streamline —and for As a decision “[t]he See, good e.g., Tokatly reason. indistinguishable v. Ash- to streamline becomes (9th Cir.2004) croft, 371 F.3d 615 n. 1 from the merits. Were we to find an error, (declining petitioner’s to reach the claim if grant per- we would either relief regula- “that the violated its own mitted or simply [Board] remand to the [Board] tions in deciding ap- proceed streamline this in a manner consistent with our short, peal”); Ashcroft, Vukmirovic v. decision.” Id. at “where *9 (9th Cir.2004) (declining by to de- can reach the merits of the decision the claim). [Board], affirming cide a similar or the an additional review of When IJ opinion, streamlining without the Board’s order must decision itself would be “ follow a script: superfluous.” standard ‘The Board Id. conclusively; regardless open question left Falcon Carriche true that It is standard, the Board’s decision novel case truly applicable that “a possibility only that upheld. I mention a decision to stream- should be which arise for could clearly is in or- standard as a matter some deferential erroneous could be found line interpretation Board’s here since the prong [Board] third der of law under great day, peti- regulations a own “is entitled at 854. One of its Id. regulations.” Zurich Am. Ins. Co. judicial claim to the deference.” will stake tioner no doubt Inc., Props., At that moment we v. Whittier case.” “truly novel (9th Cir.2004); Auer v. Rob- from the see also point argument will have an bins, 452, 461, 117 the benefit of the 519 U.S. S.Ct. well as petitioner as (1997) (stating agency’s that an But L.Ed.2d 79 defense. Attorney General’s “con- regulation of its own is interpretation no claim. More- petition presents hereafter, incon- erroneous or over, trolling plainly shown unless as will be (internal quo- regulation” sec- sistent with the to streamline the IJ’s Board’s decision omitted)). 245(a) and citations ruling certainly is not “errone- tation marks tion law under the third a matter of ous as regulations.”
prong of the [Board] B. majori- willing I am to concur with the A that there is ty’s empirical observation clearly specify Falcon Carriche does dealing scant case law with the relation- prong “the third clause constitutes which 245(a) ship section and deferred between but it does cite regulations,” of the [Board] consequently that departure, enforced 1003.1(a)(7)(ii)(A),which is to 8 C.F.R. no or federal court [Board] is “[t]here (A) (B)) (A)) (i.e., (i.e., one of two precedent squarely pre- that controls the (a)(7)(ii)’s third subclauses of subsection by presented cise issue Chen.” See 8 majority assumes general criterion. 1003.1(a)(7)(ii)(A). However, C.F.R. prong” third includes both sub- “the contrary majority at to what the times logical, interpretation seems clauses. This suggests, this far from resolves the matter in the dis- phrased as the subclauses are at hand. The more critical subclause (A) junctive; an error under subclause suspect typical pe- Chen’s case—and I the Board’s decision to would not doom (B). titioner’s—is subclause Under this correctly applied if Board streamline may the Board affirm without provision, (B). sake, then, I arguments At least legal questions if “the factual and majority’s will follow the lead and consider raised on are so insubstantial both subclauses. not warranted.” three-Member review is 1003.1(a)(7)(ii)(B). however, so, According I doing flag Before here an Id. majority, question qualifies as by majority: gov- issue overlooked whether only “so three-Member re- erning standard of review. Not does insubstantial majority analyze depends and decide view is not warranted” on how fail to Thus, majority many impacts. it adopt, which standard to but the individuals neglects explicitly questions which stan- raised this case are not insub- also to state Although they every standards of stantial because Peo- applying. “affect[ ] dard ple’s national who en- Republic review are critical to our function as China court, illegally appellate particularly when we have tered the United States but agency granted departure then deferred enforced the decision of an administrative 12,711, us, sweep- before I not endeavor to answer the status Executive Order do *10 1003.1(a)(7)(ii)(B), must be mindful § People’s every to applied that ing Order may be intraagency that considerations was in the national who of China Republic decision, lest we inter- majori- driving the Board’s The at the time.” States United in internal affairs. quickly full too its give mean- fere fails ty’s interpretation The number text. regulation’s ing Second, legal question would a factual or might be rele- touches an issue petitions if is a fore- “insubstantial” its resolution be determinative; vant, certainly is not but is, conclusion. That whereas sub- gone play. at factors are two other at least (A) whether an issue “is clause considers by existing Board or squarely controlled First, authorize regulations id. precedent,” court federal con- of institutional take account Board to (B) 1003.1(a)(7)(ii)(A), oper- § subclause the issue inquiry full is whether cerns—the con- “squarely a catchall for issues ates as re- that three-Member insubstantial is “so authority, binding legal trolled” other (emphasis Id. is not warranted.” view an- legal question example, whose added). deci- Eighth Circuit The recent face of a statute. is evident on the swer Ashcroft, 367 F.3d Ngure in sion it is example governs here: since This (8th Cir.2004), regard. in this is instructive statutory that relevant sections clear streamlining regu- analyzed the The court Immigration and Naturaliza- precluded the criterion of the other formulation lations’ (INS) adjusting and from tion IJ Service (B), phrasing the stan- in one subclause status, legal ques- “factual and factual and as whether “[t]he dard in- so appeal [were] tions raised on [his] are not so substan- raised on issues review three-Member substantial the issuance of that the case warrants tial Id. not warranted.” [was] in case.” 8 C.F.R. opinion a written 1003.1(a)(7)(ii)(B). § 1003.1(e)(4)(i)(B). Eighth Circuit § explained C.
[wjhether “warrants case particular opinion” is of a written the issuance 245(a) provides that “[t]he section INA [Boardj’s necessarily a function of the inspected an who was status of alien particular point resources at a limited into the United paroled or admitted time, the views of members other condi- meets certain and who States” those limited re- as to whether [Board] adjusted by the “may be tions writing be dedicated sources should 1255(a) (emphasis General.” U.S.C. case. That deci- given in a an 1245.1(b)(3) added); also 8 C.F.R. see turns allocation of resources sion about not admitted “[a]ny alien who was (listing mem- by the [Board] on a determination im- inspection by an following paroled or bers, in the field given expertise their “ineligible among those officer” migration reviewing thou- experience their that of adjustment of status to apply whether appeals, of administrative sands under alien permanent resident a lawful immigration the administration [INA]”). The Chinese 245 of section by publishing would be enhanced laws (CSPA) Act of 1992 Protection Student opinion. re- many section 1255’s with dispensed CSPA, 102- Pub.L. No. words, quirements, see In other 367 F.3d Ngure, 1969-71, did but 106 Stat. factual and “the determining whether (a)’s prerequisite not affect subsection appeal are so raised on legal questions and admitted “inspected the alien be review that three-Member insubstantial Reno, Tang v. see warranted,” paroled,” C.F.R. *11 1092 Cir.1996) stated, sources, must set enforcement (“Simply Con- INS
1197 though that a it aware that millions requirement priorities: waive the did not gress attempting to take advan- in the Unit- present national of unknown aliens are Chinese have entered the must tage unlawfully, possibly of the CSPA ed it cannot States through inspection and ad- country legally simultaneously them all and with pursue Because Chen was parole.”)- 12,711 mittance or rec- equal vigor. Executive Order paroled,” “inspected and admitted never reality this and formalized a tem- ognized to the statutes’ ineligible, pursuant ishe whereby mat- porary arrangement other Nev- meaning, adjust to his status. plain precedence locating over ters would take major- ertheless, maintains' —and Chen deporting Chinese nationals. being granted de- ity plausible holds —that sense, In that it is an overstatement being released on departure and ferred the Executive Order “sanc- assert equivalent” of was the “functional bond presence in the tioned” Chen’s United only paroled parole because is the being fact, any In attained States. he never “temporary harbor-age is sanc- way his level of lawful status. The INS’s letter plague defects this tioned.” Numerous deferring it en- informing Chen that was reasoning. departure clearly of his states forcement starters, majority ignores For program give you that “this does not 12,711. Executive Order See scope of you lawful status the United States and 13,- 12,711, Fed.Reg. 55 Exec. Order No. may eligible adjustment not be for of sta- 1990). 11, Although the Execu- (Apr. 897 tus or certain other benefits under the the “maintenance provided tive Order for Being on released bond likewise [INA].” adjustment purposes for of of lawful status had no effect Chen’s status. See 8 ... for such nationals [Chinese] status (d) (1989). Moreover, 242.2(c), § C.F.R. any at who were in status time on lawful the record indicates that the INS denied 5, 1989,” 3(b), § id. 55 Fed. or after June application parole. for advanced added), 13,897 at it did not Reg. (emphasis Lastly, it is not “that the true source of grant any of lawful status to those type power the President’s to issue Executive possess who did not Chinese nationals 12,711 only Order could derive from the Meissner, Qi-Zhuo already. See power grant parole.” Executive Order (D.C.Cir.1995) 136, (observing F.3d 12,711 Attorney all of tapped General’s the Executive Order “calls for the ’ Secretary “authority, of State’s includ- ... only ‘maintenance of lawful status ing that under the Immigration and Na- ‘such- nationals who were law- [Chinese] (8 1101-1557).” tionality Act Exec. U.S.C. ful any status at time on or after June ” 12,711, 13,897. Fed.Reg. Order No. at added)). Instead, (emphasis 1989’ parole provision, 8 U.S.C.
Order instructed the General “to 1182(d)(5), § is located within that statuto- necessary take to defer until steps ry range, but so are a number of other January departure the enforced example, relevant sections. For at People’s Republic all nationals of promul- time of the Executive Order’s China ... who were the United States gation, charged 8 U.S.C. At- “[t]he on or after June 1989.” Exec. Order torney 12,711 1, 13,897. General with the administration Fed.Reg. No. terms, chapter and enforcement of this and all practical the Executive Order sim- ply stay relating immigration hand in other laws directed the INS its enforcing departures illegal of certain naturalization aliens.” 8 U.S.C. (1989). 1103(a) Chinese its limited re- nationals. Given One of the enforcement being way granted equiva- him the “functional deport no be to Chen powers would *12 which him to parole States lent” of would enable “entered the United an alien who 1251(a)(2) (1989), adjustment of seek status under INA sec- §id. inspection,” without 245(a). can deny of the We and should his “upon the order tion would occur which 1251(a) (1989). General,” petition argument for review as § id. to this Attorney If, though, conduct “the order the merits. we must conditioning deportation on By General,” per- majority’s “superfluous” the “additional re- Attorney section of the itself,” of the Attorney streamlining to exercise view decision mits the General Carriche, of over Falcon 350 F.3d at the dis- discretion the commencement some deported-dis- position stays the same. Since relevant proceedings to order Chen Attorney provisions clearly use to of law foreclose the re- the General could cretion seeks, “the priorities. lief Chen factual set enforcement raised on so questions insub- [were] O, N. Dec. 344 Citing Matter 16 I. & [was] stantial three-Member review (1977), majority the that “Chen’s opines not warranted.” C.F.R. prece support has argument in[Board] 1003.1(a)(7)(ii)(B). § enough to (although apparently not dent” Board by existing controlled “squarely be II. precedent,” C.F.R. 1003.1(a)(7)(ii)(A)). majority’s remaining reli are with The Chen’s contentions argument eligi In that His that he is misplaced. 0 is out merit. ance on Matter of adjust his status INA section ease, Board that the status ble to under the determined 245(i), 1255(i), light fails in from 8 U.S.C. of 126 aliens evacuated Vietnam Reno, 113 Cir. officials to that F.3d 1068 was identical Chan United States 1997). 130,000 of his disposes who Falcon Carriche nearly other evacuees Board’s Although challenge of the process advanced due granted parole. were streamlining decision. Falcon Car acknowledged being “unaware See the Board riche, it (holding at 851 authority it lawful for any making of .. the process aliens to “a due violation bring these the Government without to affirm the decision parole than the IJ’s [Board] States other the United opinion”). granted issuing General authority 212(d)(5) Act,” Matter under section
which, just that these points” that the decision Rather, exclusive evacuees Notably absent O, like the 16 I. & N. Dec. at taken the Board is the did parole to the United States. See authority [126] not rest together, persuade[d them] other Board’s statute from applicants relied 130,000. this list on this earlier might bringing the on “several were the Board’s provide proposition. Id. at 351. speculation of “several paroled” points id. its consideration refuses majority overlooks parole] streamlining has chose this considered the majority thinks case is to remand to the to take in the first instance.” argument adopt Chen’s of the issue Board’s word that the Board III. that he secured IJ’s decision issue, appeal, “the or better course Either the agency for [of for it. rejecting majority already Chen’s Board In equivalent” parole. See “functional D. 1003.1(a)(7)(iii) (“An af- order C.F.R. approves deferring firming en- without releasing Chen below; in the reached decision deportation, of his the INS result forcement of all of the rea- imply approval does not decision, signify but does
soning of that error Board’s conclusion or the were [IJ] [INS] the decision of nonmaterial.”). Since the IJ’s harmless correct, there is no reason to analysis is subsequent decision to the Board’s review let disturb it. opinion, alone affirm without *13 accordingly I dissent. Petitioner, ALVAREZ-GARCIA, Zoila ASHCROFT, Attorney John General,* Respondent.
No. 02-73951. Appeals, Court of United States Ninth Circuit. April Argued and Submitted 2004. Aug. Filed * caption We amend the to reflect that John The Clerk shall amend the docket to reflect Ashcroft, General, proper is the re- caption. the above App. 43(c)(2). spondent pursuant to Fed. R. P.