In re E-L-H- et al., Respondents
Board of Immigration Appeals
August 18, 2005
23 I&N Dec. 814 (BIA 2005)
Interim Decision #3518; Decided by Board August 18, 2005; Decided by Attorney General December 1, 2004; Decided by Board January 30, 1998; U.S. Department of Justice, Executive Office for Immigration Review
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Theresa A. Repede, Appellate Counsel
BEFORE: Board En Banc: OSUNA, Acting Vice Chairman; HOLMES, HURWITZ, FILPPU, COLE, GRANT, MOSCATO, MILLER, HESS, and PAULEY, Board Members.3
HOLMES, Board Member:
In Matter of E-L-H-, 22 I&N Dec. 21 (BIA 1998), we denied a motion to reconsider by the former Immigration and Naturalization Service, now the Department of Homeland Security (DHS), holding that in finding the respondent eligible for asylum, we had appropriately relied on a Board precedent decision that had been referred to Attorney General Reno and was pending her review. The Commissioner of the Immigration and Naturalization Service referred our decision in Matter of E-L-H- to the Attorney General for review. On December 21, 2004, in Matter of E-L-H-, 23 I&N Dec. 700 (A.G. 2004), Attorney General Ashcroft vacated our decision and remanded for further consideration in light of an intervening unpublished decision of Attorney General Reno in Matter of A-H-, A.G. Order No. 2380-2001 (A.G. Jan. 19, 2001), included as an attachment to the Attorney General‘s decision in Matter of E-L-H-, supra, at 701.4
After considering the Attorney General‘s decision in Matter of A-H-, we reaffirm our decision in Matter of E-L-H-. The issue in Matter of A-H- was whether an unpublished Board decision could be executed pending Attorney General review. Matter of A-H- did not address the precedential effect of a published Board decision referred for Attorney General review, which is the issue now before us. As discussed below, we find that under the plain language of the regulatory provision addressing the controlling effect of Board precedent decisions, and the recently promulgated case management regulations requiring prompt and timely adjudication of Board decisions, a Board precedent decision applies to all proceedings involving the same issue unless and until it is modified or overruled by the Attorney General, the Board, Congress, or a Federal court.
I. FACTUAL AND PROCEDURAL HISTORY
The issue in this case arose in the context of the respondent‘s application for asylum, which was based on a claim that he had been persecuted in China for having violated the Government‘s family planning restrictions on the permissible number of children. In deportation proceedings in 1996, the respondent testified that he and his wife married in 1975 and that after the birth of their two children, the authorities learned of his wife‘s third pregnancy and forcibly aborted the child. The respondent and his wife were subsequently fined for having two more children in violation of the family planning laws. When the respondent‘s wife became pregnant again, the authorities again sought to abort the pregnancy, but she was able to evade them. The authorities forcibly sterilized the respondent in December 1984. The respondent and his family then left China in order to avoid further problems related to family planning.
In a decision issued on September 4, 1996, the Immigration Judge indicated that she accepted the respondent‘s account as credible but denied asylum based on the Board‘s decision in Matter of Chang, 20 I&N Dec. 38 (BIA 1989), that the Chinese Government‘s enforcement of the family planning law did not constitute persecution within the meaning of the Act. The respondent appealed to the Board.
On September 30, 1996, a few weeks after the Immigration Judge‘s decision, Congress amended the term refugee in
In a motion to reconsider, the Service argued that the Board should not have relied on Matter of C-Y-Z- because that case had been referred to the Attorney General for review. The Service based its argument on
On January 30, 1998, we denied the Service‘s motion to reconsider, finding that our decision in Matter of C-Y-Z- remained controlling unless modified or overruled by the Attorney General. In so holding, we relied on
Except as they may be modified or overruled by the Board or the Attorney General, decisions of the Board shall be binding on all officers and employees of the Service or Immigration Judges in the administration of the Act, and selected decisions
designated by the Board shall serve as precedents in all proceedings involving the same issue or issues.
(Emphasis added.) We relied on this language to find that a published Board decision retains precedential effect unless modified or overruled by the Board or the Attorney General. Matter of E-L-H-, 22 I&N Dec. at 22. We therefore concluded that we had not erred in applying Matter of C-Y-Z- as controlling authority.
In April 1998, the Service referred our decision denying reconsideration in Matter of E-L-H- to the Attorney General for review. As indicated above, the Attorney General, on December 21, 2004, remanded our decision for further consideration.
On the same day that the Attorney General remanded Matter of E-L-H-, he denied the Service‘s request for review of the Board‘s decision in Matter of C-Y-Z-.8 Now that the Attorney General has declined to review Matter of C-Y-Z-, the issue as to whether the Board properly relied on Matter of C-Y-Z- as a precedent decision in deciding Matter of E-L-H- is moot. Although we generally limit our review to issues affecting the outcome of the case before us, we understand the Attorney General‘s remand order in this case as a mandate that we further consider the question whether a published Board decision retains precedential force upon referral to the Attorney General.
II. ISSUE
The question before us is whether the legal principles established in Matter of C-Y-Z- were applicable to other cases involving the same issue during the period between the Service‘s referral of Matter of C-Y-Z- to the Attorney General in April 1998 and the Attorney General‘s decision in December 2004 declining to review the case. Stated more broadly, the question is whether a Board precedent decision applies to cases involving the same issue when our precedent decision has been referred to the Attorney General for review. We find that a published Board decision has precedential effect unless and until modified or overruled by the Attorney General, the Board, Congress, or a Federal court.
III. ANALYSIS
As discussed below, Matter of A-H-, supra, does not address the controlling effect of Board precedent decisions referred to the Attorney General for review. The long-accepted understanding based on the plain language of
A. Regulatory Framework
For over 50 years, the Attorney General has delegated to the Board the responsibility for interpreting and applying the immigration laws and regulations. The current regulatory framework for publishing Board precedent decisions and referral of Board decisions to the Attorney General has been in place since 1952, when the regulation provided, as it does today, that [e]xcept as they may be modified or overruled by the Board or the Attorney General, . . . selected decisions designated by the Board shall serve as precedents in all proceedings involving the same issue or issues.
Since we last addressed the issue presented in this case in Matter of E-L-H- in 1998, the relevant provisions have been amended in some respects to reflect statutory and regulatory developments. First, the Board‘s responsibilities for publishing precedent decisions and for timely managing its caseload were clarified by regulations promulgated in 2002. Second, in 2003, the Immigration and Naturalization Service was eliminated and its functions transferred to the newly created Department of Homeland Security. The regulations have been reorganized and renumbered to reflect these changes in responsibility for interpretation and enforcement of the immigration laws. The amendments to the relevant regulatory provisions since our 1998 decision in Matter of E-L-H- are discussed below.
We begin with the provision directly addressing the effect of Board precedent decisions. In 1998,
Decisions of the Board as precedents. Except as they may be modified or overruled by the Board or the Attorney General, decisions of the Board shall be
binding on all officers and employees of the Service or Immigration Judges in the administration of the Act, and selected decisions designated by the Board shall serve as precedents in all proceedings involving the same issue or issues.
This provision was amended in 2003 to reflect the transfer of Service responsibilities and authority to the newly created Department of Homeland Security. Renumbered as
Decisions as precedents. Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board, and decisions of the Attorney General, shall be binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States. By majority vote of the permanent Board members, selected decisions of the Board rendered by a three-member panel or by the Board en banc may be designated to serve as precedents in all proceedings involving the same issue or issues. Selected decisions designated by the Board, decisions of the Attorney General, and decisions of the Secretary of Homeland Security to the extent authorized in paragraph (i) of this section, shall serve as precedents in all proceedings involving the same issue or issues.
Pursuant to
Any Board decision, published or unpublished, may be referred to the Attorney General for review pursuant to
Referral of cases to the Attorney General. (1) The Board shall refer to the Attorney General for review of its decision all cases that:
(i) The Attorney General directs the Board to refer to him.
(ii) The Chairman or a majority of the Board believes should be referred to the Attorney General for review.
(iii) The Secretary of Homeland Security, or specific officials of the Department of Homeland Security designated by the Secretary with the concurrence of the Attorney General, refers to the Attorney General for review.
(2) In any case the Attorney General decides, the Attorney General‘s decision shall be stated in writing and shall be transmitted to the Board or Secretary, as appropriate, for transmittal and service as provided in paragraph (f) of this section.10
The provision addressing finality of Board decisions, former
Finality of decision. The decision of the Board shall be final except in those cases reviewed by the Attorney General in accordance with paragraph (h) of this section. The Board may return a case to the Service [DHS] or an immigration judge for such further action as may be appropriate, without entering a final decision on the merits of the case.
Background and Security Investigations in Proceedings Before Immigration Judges and the Board of Immigration Appeals, 70 Fed. Reg. 4743, 4752 (Jan. 31, 2005) (interim, effective Apr. 1, 2005) (to be codified at
Other relevant amendments, newly promulgated in 2002 to address timely adjudication of Board decisions, are discussed in Part E, below.
B. Issue in Matter of A-H-
In Matter of A-H-, 23 I&N Dec. at 701 (attachment to the Attorney General‘s decision in Matter of E-L-H-), the issue before the Attorney General was whether an unpublished Board decision granting asylum to the respondent should be given effect by the Service pending review of the merits of the asylum claim by the Attorney General. The Attorney General issued an interim order and decision finding that the Board‘s grant of asylum was not final within the meaning of
In so holding, the Attorney General observed in Matter of A-H-, 23 I&N Dec. at 701, that the reference to final decisions in
possible to understand this language to indicate that Board decisions, unless stayed by the specific, affirmative act of the Attorney General or the Board itself, become effective immediately upon issuance and, unless they are so stayed, must be executed by the Service and by Immigration Judges even after being certified to the Attorney General and while pending review.
Id. at 701-02 (emphasis added). The Attorney General expressed concern that the uncertainty engendered by the interplay of sections 3.1(d)(3) and 3.1(g) required decisions on whether to order a stay on very short notice, thereby preventing orderly and efficient Attorney General review of Board decisions. Id. at 702. She then concluded as follows:
In my judgment, sections 3.1(d)(3) and 3.1(g) can and ought to be harmonized in a manner that avoids such administrative difficulties. I conclude, therefore, that, in accordance with its plain terms, section 3.1(d)(3) renders a Board decision that has been referred to the Attorney General non-final and without effect. Thus, a referral operates as an automatic stay without a need for any further action of the Attorney General. Section 3.1(g) gives binding effect to a final decision of the Board, and thus does not apply to a decision that is pending on a referral. In accordance with the terms of section 3.1(d)(3), therefore, if a Board decision has been certified to the Attorney General, it is neither final nor effective during the pendency of the Attorney General‘s review (or for a later period, if the Attorney General so decides). A Board decision may not be executed while it is not final (unless the Attorney General specifically orders otherwise).
Id. (footnote omitted). Applying this reasoning, the Attorney General concluded that the decision of the Board, having been certified to me by the Commissioner, is to be stayed pending completion of the Attorney General‘s review of the merits of the Board‘s decision. Id. at 702-03.
The Attorney General‘s statement in Matter of A-H- that
By way of contrast, a published Board decision need not be final within the meaning of
Under recently promulgated regulations, when the Board grants an application for relief from removal, the Board is directed to remand the case to the Immigration Judge with instructions to allow the DHS to complete the necessary background investigations and report the results to the Immigration Judge. See 70 Fed. Reg. at 4748, 4752 (to be codified at
In addressing
Decisions of the Board as precedents. Except as they may be modified or overruled by the Board or the Attorney General, decisions of the Board shall be binding on all officers and employees of the Service or Immigration Judges in the administration of the Act, and selected decisions designated by the Board shall serve as precedents in all proceedings involving the same issue or issues.
(Emphasis added.) She did not quote or refer to the portions of the regulation that are specifically addressed to precedent decisions, i.e., the caption and the final clause. Nor does Matter of A-H- mention precedent decisions at any point in the analysis.
When the issue is the effect of a precedent decision, there is no need for harmonization of
C. Case Law Regarding the Effect of Board Precedent Decisions
The long-accepted understanding of the precedential effect of Board decisions has been that published Board decisions remain binding unless modified by the Board, the Attorney General, Congress, or a Federal court. In Matter of G-, 20 I&N Dec. 764 (BIA 1993), the Board addressed the question whether its decision in Matter of Chang, supra, that enforcement of China‘s one child policy was not persecution, retained precedential force. Following the Board‘s decision in Chang, the Attorney General issued policy guidelines and an interim regulation indicating that aliens fleeing their country‘s family planning policies of forced abortions or sterilizations may be considered to have a well-founded fear of persecution on account of political opinion. See Refugee Status, Withholding of Deportation, Asylum; Burden of Proof, 55 Fed. Reg. 2803, 2805 (Jan. 29, 1990) (interim rule). Although the Board‘s decision in Matter of Chang was not referred to the Attorney General, the Board subsequently referred two decisions involving the Chang family planning issue to the Attorney General for review under the provisions of
In Matter of G-, supra, at 777, we addressed the effect of these referrals as follows:
Pending the decision of the Attorney General on these referred cases, we will continue to follow Matter of Chang, supra, as precedent in all proceedings involving the same issues, including the case now before us. See
8 C.F.R. § 3.1(g) (1993) . Accordingly, we will deny the applicant‘s request for a stay of these appellate proceedings pending the Attorney General‘s review of the two referred cases.
Thus, although we had referred cases involving the issue in Chang to the Attorney General for review and the Attorney General had submitted a final regulation which would have explicitly overruled Matter of Chang, we held that Chang retained precedential force unless and until overruled by the Attorney General. Id.
Unless modified or overruled by the Board or the Attorney General, decisions of the Board are binding on all Immigration Law Judges.
8 C.F.R. § 3.1(g) (1994) . The Attorney General may modify or overrule a Board decision through the referral process prescribed in8 C.F.R. § 3.1(h) (1994) or through issuance of an effective regulation. As discussed above, none of the regulations addressing the issues in Chang were effective at the time of the IJ‘s decision in this case. Furthermore, the Attorney General has neither modified nor overruled Chang. Thus, Chang remains in force and was valid, binding precedent for the IJ and Board‘s decisions.
Chen v. Carroll, supra, at 287 (footnote omitted); see also Wang v. Slattery, 877 F. Supp. 133 (S.D.N.Y. 1995); Gao v. Waters, 869 F. Supp. 1474 (N.D. Cal. 1994) (and cases cited therein).
In the 7 years between the Service‘s referral and the Attorney General‘s denial of the Service‘s request for review of Matter of C-Y-Z-, we issued additional precedent decisions further developing the legal principles established in Matter of C-Y-Z-. See, e.g., Matter of G-C-L-, 23 I&N Dec. 359 (BIA 2002) (granting reopening to an applicant who qualified for asylum under the Board‘s holding in Matter of C-Y-Z-); see also Matter of Y-T-L-, 23 I&N Dec. 601 (BIA 2003) (reaffirming our analysis and holding in Matter of C-Y-Z- and finding that where an alien has established past persecution based on the forced sterilization of his spouse, the fact that the alien and his spouse face no further threat of forced sterilization is not a fundamental change in circumstances sufficient to meet the standards for a discretionary denial of asylum). Significantly, neither the Service nor DHS argued in these cases that Matter of C-Y-Z- lacked precedential effect because it had been referred to the Attorney General. Nor has the Service or the DHS, to our knowledge, raised this issue in any of the thousands of unpublished decisions of the Immigration Judges or the Board applying the holding in Matter of C-Y-Z- during this period.
Federal circuit court decisions have also recognized the precedential effect of Matter of C-Y-Z- after its referral to the Attorney General. See Lin v. Ashcroft, 385 F.3d 748, 753 (7th Cir. 2004) (recognizing Matter of C-Y-Z-‘s extension of asylum protections to the spouse of an individual subjected to forced sterilization); Ge v. Ashcroft, 367 F.3d 1121 (9th Cir. 2004) (finding that the alien was eligible for asylum under Matter of C-Y-Z- where he showed that his wife was forced to undergo an abortion under China‘s one-child policy); Ma v. Ashcroft, 361 F.3d 553, 559 (9th Cir. 2004) (recognizing Matter of C-Y-Z- and noting that [t]he BIA and the courts have uniformly applied the statute‘s protections to husbands whose wives have undergone abortions or
As discussed below, had mere referral of the Board‘s decision in Matter of C-Y-Z- nullified its effect as controlling authority, the critical legal issues decided in Matter of C-Y-Z- would have remained unresolved and thousands of cases would have lingered for years pending before Immigration Judges and the Board until the Attorney General either declined review or addressed the issues referred.
D. The Board Speaks for the Attorney General in Issuing Precedent Decisions
The Board functions as the agent of the Attorney General charged with the review of those administrative adjudications under the Act that the Attorney General may by regulation assign to it.
The mere referral of a published Board decision for Attorney General review does not negate the controlling effect of the Board‘s interpretation of the immigration law. In some respects, the provision for Attorney General review
In some cases, such as Matter of E-L-H-, the Attorney General has explicitly vacated a referred Board decision and remanded for further consideration based on subsequent developments. See also Matter of R-A-, 22 I&N Dec. 906 (A.G. 2001; BIA 1999) (vacating the Board‘s decision that a woman who had been abused by her husband was not a member of a particular social group for purposes of protection under the asylum law, and remanding for reconsideration after publication of a proposed regulation on gender-based persecution). In Matter of N-J-B-, 21 I&N Dec. 812, 841 (A.G., BIA 1997), the Attorney General directed the Board to refer the decision for review and specifically vacated the Board‘s decision pending [the Attorney General‘s] further determination.
Were mere referral to the Attorney General sufficient to nullify the precedential effect of a Board decision, there would have been no need for the Attorney General to order that the Board‘s decision be vacated. Rather, on a case-by-case basis, the Attorney General decides whether to nullify the precedential effect of a published Board decision before rendering a decision on review. Until the Attorney General indicates otherwise, the Board‘s precedent decisions on the meaning of the immigration laws or regulations should be applied by the Board, Immigration Judges, and officials of the Department of Homeland Security to pending cases involving the same issue or issues. This has been the clear directive in the controlling regulations for over 50 years. The DHS has not presented convincing arguments that Matter of A-H-, which does not address the issue of precedent decisions, was intended to overturn this long-accepted understanding of the effect of Board precedent decisions.
Under the DHS view, a referral of any Board decision would immediately negate the precedential force of that decision. Notably, there is no time limit on when a Board decision may be referred to the Attorney General under
E. Timely Adjudication of Immigration Cases
Under the 2002 case management regulations, the Board is required to resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations.
rare circumstances, when an impending decision by the United States Supreme Court or a United States Court of Appeals, or impending Department regulatory amendments, or an impending en banc Board decision may substantially determine the outcome of a case or group of cases pending before the Board.
Under these circumstances, the Chairman may hold cases, temporarily suspending the time limits described above, until the anticipated decision is rendered, the statute is enacted, or the regulation promulgated.14 Notably, the list of exceptions to the case completion time limits does not include a reference to decisions referred to the Attorney General. Even were this list of rare circumstances understood as exemplary, so that an anticipated Attorney General decision in a case on referral might justify suspending the applicable time completion deadlines, the regulations delegate such discretion to the Chairman of the Board, i.e., the Chairman may hold the case or cases.
Were published Board decisions automatically stripped of precedential effect upon referral to the Attorney General, the Board would have to hold, administratively close, or otherwise delay adjudication in significant numbers of cases for what could be many years. Immigration Judges, likewise, would have to grant continuances in cases involving the issue on referral until addressed by the Attorney General or the Board. Some of these cases will involve detained aliens whose detention will be prolonged until the issue on referral is resolved by the Attorney General.
Under the 2002 case management regulations, the Board has eliminated its backlog of cases and has issued timely decisions under the 90-day and 180-day deadlines. Under the DHS‘s proposed interpretation of
IV. CONCLUSION
Based on the plain language of
ORDER: The motion for reconsideration of the Department of Homeland Security is denied.