United States v. 2005-06-09 | 02-73743 | CHEN VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CHONG SHIN CHEN,
Petitioner, No. 02-73473
v. Agency No.
 A29-554-882ALBERTO R. GONZALES,* Attorney
General, ORDER
Respondent. 
Filed June 10, 2005
Before: J. Clifford Wallace, Alex Kozinski, and
Sidney R. Thomas, Circuit Judges.
Order;
Dissent by Judge Bea
ORDER
Judges Kozinski and Thomas have voted to deny the peti-
tion for rehearing. Judge Wallace has voted to grant the peti-
tion for rehearing. A judge of the Court sua sponte requested
a vote on whether to rehear the case en banc. A vote was
taken on the request, and it failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35.
The petition for panel rehearing is DENIED.
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
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BEA, joined by O’SCANNLAIN and KLEINFELD, Circuit
Judges, dissenting from denial of rehearing en banc:
In this case, the Panel Majority concludes that this court
has jurisdiction to review the BIA’s decision to streamline
pursuant to 8 C.F.R. § 3.1(a)(7)(ii)(A)-(B)(2002), recodified
at 8 C.F.R. § 1003.1(a)(7)(ii)(A)-(B) (2003).1 In my view, the
Panel Majority errs in three respects. Accordingly, I respect-
fully dissent from our court’s order denying rehearing en banc
for the following reasons:
First, the Panel Majority’s decision does not state a stan-
dard of review by which this court may (or may not) deter-
mine when the BIA action of affirmance-by-one judge is or
is not permissible. This omission probably occurred because,
as yet, no principled basis for the Panel Majority’s actions has
been articulated.
Second, the ground stated by the Panel Majority for what
is a “substantial” question under the regulation, 8 C.F.R.
§ 1003.1(a)(7)(ii)(B), is simply that the decision will affect
many people. Chen v. Ashcroft, 378 F.3d 1081, 1086-87 (9th
Cir. 2004) (noting that “[r]esolution of the legal and factual
issues raised by Chen affects every People’s Republic of
China national who entered the United States illegally but was
then granted deferred enforced departure status by Executive
Order 12,711, a sweeping Order that applied to every Peo-
ple’s Republic of China national who was in the United States
at the time.”). But so would a decision that entrants be
required to sign visa applications or customs declarations. The
basis of a decision may be such clear law that the BIA decides
it is not qualitatively “substantial” in the sense that resources
(3 BIA members) should not be dedicated to its determina-
tion. Which is what happened here: the decision that delay in
departure pursuant to the Chinese Student Protection Act is
not the “functional equivalent of parole” for purposes of
1Now codified at 8 C.F.R. § 1003.1(e)(4)(i)(A)-(B) (2004).
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excusing illegal entrants from INA § 245(a) is so clear as to
be qualitatively insubstantial, although quantitatively, it may
affect many persons.
Third, Falcon Carriche’s dicta regarding the possible case
where this court would have jurisdiction to review agency
determination to streamline2 deals only with subclause “(A)”
of cited CFR section, not subclause “(B).”3 That is, it is a non-
discretionary act of the BIA to determine whether there is
“Board or federal court precedent and does not involve the
application of precedent to a novel fact situation.” See 8
C.F.R. § 1003.1(a)(7)(ii)(A). But that has nothing to do with
the decision making process of subclause “(B),” i.e., “whether
the factual and legal questions raised on appeal are so insub-
stantial that three-Member review is not warranted.” See 8
C.F.R. § 1003.1(a)(7)(ii)(B). Subclause “(B)” involves an
agency determination of how to spend its resources. It consti-
tutes a “fourth prong” of the BIA regulations. If the BIA is to
2See Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 (9th Cir. 2003):
Although we conclude that we do not have jurisdiction to review
the streamlining decision here . . . we . . . express no opinion on
whether, although rare, a truly novel case could arise for which
a decision to streamline could be found erroneous as a matter of
law under the third prong of the BIA regulations. See 8 C.F.R.
§ 1003.1(a)(7)(ii)(A).
Falcon Carriche, 350 F.3d at 854 (emphasis added).
3I respectfully disagree with Judge Wallace’s generous concession that
Falcon Carriche’s reference to the “third prong” of the regulations
includes both subclauses (A) and (B). See Chen, 378 F.3d at 1090 (Wal-
lace, J., dissenting). Rather, as I read Falcon Carriche, the “third prong”
refers only to subclause (A) of 8 C.F.R. § 1003.1(a)(7)(ii). Indeed, the cita-
tion to 8 C.F.R. § 1003.1(a)(7)(ii)(A) after the disputed sentence in Falcon
Carriche (see fn. 2, supra) supports such a limited reading. In my view,
the “first prong” of 8 C.F.R. § 1003.1(a)(7)(ii) is (1) “that the result
reached in the decision under review was correct”; the “second prong” is
(2) “that any errors in the decision under review were harmless or nonma-
terial; and the “third prong” is (3) that “[t]he issues on appeal are squarely
controlled by existing Board or federal court precedent and do not involve
the application of precedent to a novel factual situation.”
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be second-guessed as to how it spends its resources, it should
be done, if at all, on the basis of “abuse of discretion.” There
is nothing in the Chen panel majority decision to show that
any such consideration took place.
For these reasons and those stated by Judge Wallace in his
eloquent dissent from the Panel’s opinion, I respectfully dis-
sent from the denial of rehearing en banc.
6788 CHEN v. GONZALES

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