*2 THOMPSON, Before DAVID R. TASHIMA, RAWLINSON, Judges.
THOMPSON, Judge. Senior Circuit Petitioner Erlinda peti- Gerardo Zara tions for review of the Immigra- Board of (“BIA”) tion Appeals’ affirmance without (“IJ”) immigration judge’s denial of applications asylum, with- holding voluntary departure and relief under the Convention (“CAT”). Torture issue Zara raised was her challenge to the IJ’s finding Aqui- Party was no longer when she left Philipрines impact alleged error had on applications her other for relief. Zara did not present to the critical issue she now to us concerning the IJ’s credibility adverse finding, nor did challenge the IJ’s de- termination presented that she insufficient evidence of CAT, torture as defined nor did she contend the IJ abused his merits, vol- After a denying request hearing on the discretion IJ applications denied Zara’s un- untary departure. Immigration Nationality der Act Zara did not exhaust her ad- Because *3 (“INA”) 208(a)(1), 1158(a)(1), § § 8 U.S.C. remedies, ju- we do not have ministrative and withholding of removal under INA the claims she risdiction to consider 1231(b)(3). 241(b)(3), 8 U.S.C. With Ac- presents petition in her for review. claim, respect asylum to the the IJ found cordingly, petition that is dismissed. Zara was not a credible witness. That determination vague was based on Zara’s BACKGROUND and nonresponsive testimony, material in- application consistencies between her ma- Zara, Philip- a native and citizen of the testimony terials and her at the hearing, July pines, entered United States and testimony. inconsistencies within that 12, 1992, non-immigrant visi- pursuant to that IJ álso found Zara failed to es- of the According tor’s visa. terms identity. her tablish The IJ also deter- visa, Zara was authorized to remain in this that if mined even Zara were found to be country only January until 1993. She credible, she had failed to establish either overstаyed that authorization. past persecution or a well-founded fear of persecution. explained future The IJ that applica- On Zara filed alleged persecution acts of (slapping In asylum. application, tion for her she detention) and did not rise to asylum the level of requesting stated that she was be- рersecution meaning within the of the stat- cause she feared that she would be killed departed ute. The IJ also noted that Zara Party if Aquino members of the she Philippines Aquino regime after the Philippines. returned to the She ex- had ceded control of the Philippines and that she was an active plained member of аvailable evidence indicated that that, Marcos party as a result of Marcos subject activities, supporters longer to abuse no political her she had been beaten and threats. Because Zara could not sat- Specifi- and had received death threats. occasions, isfy proof required the lower standard of cally, alleged Zara that on two asylum, claim for the IJ denied her for in attending meetings after . withholding under INA Marcos, removal she was confronted members 241(b)(3). Aquino Party threatened to who kill her, up, attempted rape her beat that there The IJ also determined was alleged her. She also that she wаs twice competent no and credible evidence that by “hooligans detained for three hours of Zara had tortured within the mean- been opposition party” pointed guns who ing of the CAT. The IJ denied Zara’s claim that her and threatened her. She asserted voluntary in departure the exercise of job difficulty she had to and had leave discretion, his and ordered that be attending church due to the to her threats removed, Philippines. to the life. appealed Zara the IJ’s decision to the provid- Zara BIA. her notice of Zara,
Upon interviewing Immigra- appeal: following ed the reason (“INS”) tion and Naturalization Service finding pаst perse- Immigration Judge that erred determined her claims Party’ rule ended in persecution ‘Aquino cution and fear of future were when, fact, Fidel V. application May and referred her General credible Ramos, in May president to an was elected IJ. Party Aquino member of the issues Zara to this court in 1992 as a Party rule cоntinued on at review differ from the Aquino so the presented issues she to the Philippines left the respondent the time BIA, BIA. In her appeal finding Aquino that the pertained issue Zara raised to the IJ’s Party longer power was no when re- alleged finding factual error in spondent Philippines. left the Aquino Party In her brief on departed the timе she Philippines immigration judge reiterated that impact finding that factual had on her finding Aquino Party erred in application applica- and other *4 power in at the time she left the tions for relief. Zara did not in raise her Philippines. explained: She appeal any to the BIA of the other issues Consequently, as a result of the IJ’s petition she now includes in her for review. in finding Aquino regime error that the We have held that “[failure out of the at that of [sic] time raise an issue in 1992, Respondent’s departure constitutes a failure to exhaust remedies erroneously Respondent’s the IJ denied respect to that question deprives application finding after jurisdiction this court of to hear the mat Respondent sufficiently did not establish Vargas Dept. ter.” v. United States past her claims of and future persecu- Nat., Imm. & 831 F.2d 907-908 Aquino tion from party or because Cir.1987). A petitioner satisfy cannot supporter she was a of the Marcos re- requirement by making a gen Furthermore, gime. the IJ also errоne- decision, but, challenge eral to the IJ’s ously Respondent’s applica- denied other rather, specify must which issues form the tions for relief as a result of the IJ’s See, appeal. e.g., basis of the Cortez-Acos error. (9th Cir.2000) INS, ta v. 234 F.3d affirmed, On November the BIA (explaining jurisdiction that we lacked without opinion, the decision of the IJ petitioner’s arguments address regarding pursuant streamlining procedures. to its process domicile and due because he had 3.1(e)(4). Thus, See 8 C.F.R. failed to raise the on appeal decision became the final agency decision. BIA); Mabugat v. 937 F.2d Id. (9th Cir.1991) (petitioner’s failure to raise arguments certain sup before thе BIA in DISCUSSION port of voluntary departure his claim for stripped this court of to ad arguments raises number of issues). dress these support of petition Specifi- her for review. cally, challenges the IJ’s adverse cred- Zara contends that the issues raised ibility finding petition determination and the for review to this court should she failed to idеntify. establish her be deemed exhausted because INS addition, “fully Zara contends suffi- there was briefed” these issues the BIA. before cient supporting past evidence her claim of The record does not this conten- persecution, presump- which established a tion. The INS did not address tion of future persecution govern- issuеs Zara presents now rebut, Rather, ment argues gen- failed to and she review. the brief the INS erally that she established all of her filed BIA in response claims with the to Zara’s for relief. generally: it asserted ifway, properly present and Naturalization another Zara had Immigration hereby adopts the well-reasoned BIA the
Sеrvice ed issues she now raises Immigration Judge.... court, opinion before this deny asylum, with- decision to The IJ’s might assigned have been to a three-mem under the Con- holding of relief panel ber review and decision. we Torture, voluntary vention streamlining were to hold that the BIA’s amply supported by the departure is decision excused the administrative re record. remedies, quirement of exhaustion of legitimize very vice the exhaus provide did not This broad assertion requirement designed prevent, tion notice of the issues Zara now namely, “premature to us. interference with Waters, agency’s processes.” Liu v. circuit has not addressed the This Cir.1995), Ro quoting require whether the exhaustion question que-Carranza v. decisions— applies ment to “streamlined” (9th Cir.1985). i.e., single member of the BIA when a affirms the IJ’s decision without *5 Because Zara failed to exhaust 3.1(e)(4). pursuant to 8 C.F.R. When BIA appeal the issues that she decision, BIA a the issues “streamlined” in her for review to this final of the IJ becomes the the decision court, issues are critical which 8 agency determination. asserts, lack claims she we 3.1(e)(4)(B)(ii). a question Thus there is Accordingly, consider those claims. Zara’s seeking a review petitioner as to whether is for lack of petition for review dismissed BIA by decision the “streamlined” jurisdiction. that the issues raised in her must establish pre to this court were petition for review PETITION DISMISSED. appeal to the BIA. sented re- We conclude that the exhaustion TASHIMA, dissenting: Judge, quirement applies to “streamlined” cases. exhaustion re- policy underlying majority holds that we do not have an administrative quirement give is to claims, jurisdiction to review Zara’s be- a contro- agency to resolve faded to exhaust her administra- cause she judi- versy or correct its own errors before by raising them in her tive remedies Sagermark v. 767 cial intervention. Yet, BIA. none of the cases brief to the Cir.1985). (9th 645, F.2d 648 majority proposi- by relied on tion that Zara failed to exhaust her admin- deciding whether to streamline a When remedies involved a affir- istrative case, evaluates, among other (or “streamlining”); mance without things, whether the issues on indeed, before the all but one were decided by existing precedent controlled squarely streamlining regulation adopted. was even or are so insubstantial that three-member is the final Because the IJ’s decision is not warranted. 8 C.F.R. review 3.1(a)(7)(h). review in this cy determination under Accordingly, the decision case, I hold that Zara by streamlined to streamline is affected what whether by remedies exhausted her petitioner chooses to administrative I therefore may raising before the IJ. the BIA. The failure to include issues them majority’s from the respectfully dissent result in a decision to streamline which holding. made. Put otherwise would not have been 932 reme- of the exhaustion of administrative require- exhaustion jurisdictional
ment,
impli-
requiring
beyond
any prudential
supports
dies
opposed
as
exhaustion,
subject
is
on the
agency
bottomed
the final
cations
Carriche,
Seе
separation
powers.
judicial
doctrine of the
See Falcon
review.
States,
Marathon Oil Co. United
(explaining
“[i]f
F.3d
Cir.1986).
(9th
Thus,
can
759,
decision be-
streamlines
actually decided
those issues
review
decision,
and the
agency
comes the
INS, 79 F.3d
agency,
see Fisher
green light
us a
regulatory
gives
scheme
Cir.1996)
(en banc), and,
in-
as we wоuld
to scrutinize the IJ’s decision
basis
deed,
agency
on a
cannot affirm
itself’);
compare
the BIA
a decision
SEC v.
it
consider. See
explicitly
did
n. 16
Navas v.
80, 88, 63 S.Ct.
Chenery Corp., 318 U.S.
Cir.2000) (holding in a non-streamlined
(1943);
also INS v.
L.Ed. 626
is confined
court’s]
case
review
that”[this
Ventura,
12, 16-17, 123 S.Ct.
537 U.S.
upon
BIA’s decision and the bases
(2002).
lation dictates the of the Cir.1978) (nоting statutory exhaustion affirmance. reviewing order of mem requirements preclude agency do “not the prohibited stating ber is from reasons providing flexibility itself from some (“An for his or her decision. See id. defining point the terminal of the adminis- order un affirming opinion, without issued remedy pursued”). trative that must be authority provision, der of this shall not reasoning.”). include or explanation further to When the decides not streamline Thus, sense, decision every the BIA’s decision is the final represents agency, the the final decision of cy and we an will not review issue and we have so held. See Falcon Carriche that could have been was not but raised Ashcroft, Cir. 350 F.3d 855 See, e.g., bеfore the BIA. Cortez-Acosta v. 2003). Cir.2000); 234 F.3d 480 structure, Navas, If, however,
Given this administrative none 658 n. opinion, of the the doctrine the BIA member reasons which underlie affirms without regulation streamlining 1. The been at the time of Zara's has since tion effect (without change) recodified as 8 C.F.R. the BIA. 1003.1(e)(4) (2004). regula- I refer the cy opportunity final therefore has the to correct decision the thereby making IJ’s determination, requiring judicial all issues its own errors before intervention. agency BIA, raised before to also have been Sagermark v. Cf. review, serves we do not (9th Cir.1985) whose decision (holding that or “[w]hether underlying juris- purposes none not on the decision the merits was techni- All rеquirement. exhaustion dictional cally before the the BIA addressed it underlying jurisdictional policies enough thoroughly to convince us that the pre- requirement preventing — policy underlying relevant concerns the ex- agency process- mature interference requirement haustion an administra- —that es, opportunity allowing agency full agency opportunity tive should have a errors, affording par- correct its own controversy to resolve a or correct its own agency courts the benefit of ties and the judicial errors before intervention —have compiling experience expertise, here”). been satisfied review, judicial Weinberger record for juris- majority’s analysis conflates Salfi, U.S. S.Ct. (1975) satisfied when requirements L.Ed.2d 522 dictional exhaustion —are final fully presented issues prudential exhaustion considerations. The decisionmaker, which a stream- agency requiring it advances in reasons case is the IJ. lined BIA in a exhaustion before the stream- are, best, prudential consider- lined case majority cites to 8 C.F.R. ations, jurisdictional requirements. 3.1(a)(7)(h) proposition effect, majority govern- decision whether or not member’s —and and eat it too. depends a case ment —would have its cake streamline by failing is, and therefore raised on recognizing that the IJ’s decision While brief, agency in her BIA to raise issues streamlining regulation, under the the final a full to correct did have decision, agency majority requires ex- Yet, Slip op. at 12946 this its own errors. determi- beyond agency haustion “the streamlining deci- stage is the final nation.” gets BIA member sion. Before the *7 1252(d)(1) Although provides 8 U.S.C. considerations, he or she must first thesе cannot review a order of “that the result reached determine all removal unless “the alien has exhausted correct; [and] decision under review remedies available to the administrative in the decision under re- any errors BIA stream- right,” alien as of once the view harmless or nonmaterial.” were (three-membеr) plenary lines a 3.1(a)(7)(h) added). (emphases to the alien review is no available dictates, the comply In order to with these BIA member right.”3 simply “as of review the decision as a member must in the IJ’s deci- adopts the result reached just raised in a whole and not the issues reasoning. In- necessarily its appeal,2 and the sion but petitioner’s brief amply supported the rec- supported by tary departure is the INS' 2. This conclusion is ord.” though actions in this case. Even own brief to the raised one issue in course, is if the decision to streamline 3. Of response not limit its to that INS did consequential, we can both erroneous and Rather, adopted the IJ's one thе INS issue. by a remand to the BIA for its reconsideration deny and stated “the IJ’s decision to Ashcroft, panel. See Chen three-member asylum, withholding of relief under 2004 WL 378 F.3d Cir.2004). Torture, the Convention volun- deed, prohibited BIA member is from reasons, any but instead must sim-
stating decision is the final
ply state that the IJ’s See 8 C.F.R.
agency determination. 3.1(e)(4)(ii). reasons, these once a BIA
For
streamlined, I would hold that we have to review issue raised be- and considered the IJ —whose de-
fore I agency’s is the final decision.
cision dissent.
respectfully SMITH,
Ramon L. Petitioner-
Appellant, IDAHO, Respondent-Appellee.
State of
No. 02-36043. Appeals,
United States Court of
Ninth Circuit.
Argued 2004. Submitted Sept.
Filed