Elizabeth P. Ward, individually v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2063
ELIZABETH P. WARD, individually and as
parent and natural guardian to ESTEFANIE
EBRADA CAINTO, a minor child,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A099-176-781 & A099-176-782
ARGUED NOVEMBER 4, 2010—DECIDED JANUARY 21, 2011
Before BAUER, MANION and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Petitioners seek review of a deci-
sion of the Board of Immigration Appeals (the “BIA”)
upholding an immigration judge’s finding that they
are removable from the United States under 8 U.S.C.
§ 1227(a)(1) and ineligible for cancellation of removal

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2 No. 10-2063
under 8 U.S.C. § 1154(a)(1)(A)(iii). Petitioners contend
that a single member of the BIA issued an improper
written opinion that went beyond the scope of an indi-
vidual BIA member’s power to affirm, modify, or remand
an immigration judge’s decision in a “brief order” pursu-
ant to 8 C.F.R. § 1003.1(e)(5). This court’s jurisdiction
over final orders of removal is governed by 8 U.S.C. § 1252.
The written order issued by the BIA on March 31, 2010
constitutes a final order of removal under 8 C.F.R.
§ 1003.1(d)(7); therefore the case is properly before this
court.
I. BACKGROUND
Petitioner Ward and her daughter Cainto, natives
and citizens of the Philippines, entered the United States
in March 2004 on non-immigrant K visas. Ward entered
on a K-1 visa as the fiancée of a United States citizen
and Cainto entered on a K-2 visa as a minor child accom-
panying her mother to the United States.
Ward married her citizen fiancé in May 2004. The
marriage dissolved shortly thereafter and Ward never
applied for permanent resident status based upon her
marriage. In November 2006, the Department of Home-
land Security (“DHS”) ordered petitioners to appear
before an immigration judge to explain why they
should not be removed from the United States for
having overstayed their visas. Prior to her removal
hearing, Ward petitioned DHS for an immigrant visa
under 8 U.S.C. § 1154(a)(1)(A)(iii), a statute which enables
the former spouse of a United States citizen who was

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No. 10-2063 3
subjected to battery or extreme cruelty to remain in the
United States. DHS denied Ward’s petition for this
special visa in April 2007. In December 2008, an immigra-
tion judge conducted a merits hearing to adjudicate
whether petitioners were removable and, if so, whether
their application for cancellation of removal was properly
denied. The immigration judge found that removability
had been established by evidence that was “clear and
convincing” and that petitioners were ineligible for can-
cellation of removal. The BIA affirmed in a three-page
decision issued by a single member on March 31, 2010.
II. DISCUSSION
Petitioners urge us to remand their case to the BIA with
instructions to review their appeal in a three-member
panel. In their view, the order issued by a single member
pursuant to 8 C.F.R. § 1003.1(e)(5) overstepped the BIA’s
own bounds for reviewing immigration appeals in such
a manner. For the reasons described below, we decline
to grant petitioners the relief they seek in this matter.
We begin with the question of jurisdiction. Only con-
stitutional claims and questions of law properly raised
in connection with an order of removal are reviewable.
8 U.S.C. § 1252(a)(2)(D). Legal questions include “chal-
lenges to the BIA’s interpretation of a statute, regulation,
or constitutional provision, claims that the BIA misread
its own precedent or applied the wrong legal standard,
or claims that the BIA failed to exercise discretion at
all.” Patel v. Holder, 563 F.3d 565, 568 (7th Cir. 2009).
We find that the question raised by petitioners is a legal

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4 No. 10-2063
one, since it involves interpretation of the guidelines set
for review of immigration appeals under 8 C.F.R.
§ 1003.1(e).
In the immigration context, a two-pronged analysis
governs whether failure to adhere to an administrative
guideline renders the underlying action taken invalid.
First, the regulation in question must serve a “purpose
of benefit to the alien.” Martinez-Camargo v. INS, 282 F.3d
487, 491 (7th Cir. 2002) (quoting Matter of Garcia-Flores,
17 I. & N. Dec. 325 (B.I.A. 1980). If the regulation is
found to serve a purpose of benefit to the alien, the action
is then invalid only if the violation “prejudiced the inter-
ests of the alien protected by the regulation.” Id. As the
BIA itself put it in Garcia-Flores, “where an entire proce-
dural framework, designed to insure the fair processing
of an action affecting an individual is created but then
not followed by an agency, it can be deemed prejudicial.”
Garcia-Flores, 17 I. & N. at 329. The analysis adopted
in Martinez-Camargo endeavors to strike a balance
between “recognizing the need for administrative
agencies to follow their own rules” and acknowledging
“the practical reality that not every agency violation
impacts an alien’s substantive rights.” Martinez-Camargo,
282 F.3d at 491. In order to assess whether the regula-
tion serves a purpose of benefit to the alien, we must
first look to the language of 8 C.F.R. § 1003.1.
Section 1003.1 of Title 8 of the Code of Federal Regula-
tions governs the organization, jurisdiction, and powers
of the BIA. Under subsection (e)(3), a single board mem-
ber is initially assigned to an appeal using the BIA’s case

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No. 10-2063 5
management system. The member assigned to that
appeal is then vested with the authority to determine
how it should be handled by the BIA. The member
may summarily dismiss the appeal once the record is
complete or may elect to have the case decided on the
merits. A decision on the merits is issued in one of
three ways. In the most straightforward cases, a
formulaic “affirmance without opinion” is issued by the
member pursuant to subsection (e)(4). In cases requiring
more in-depth analysis, the member may issue a brief
order pursuant to subsection (e)(5) or designate the
appeal for review by a three-member panel pursuant to
subsection (e)(6). The default is single member review.
(“[T]he Board member shall issue a brief order . . . unless
the Board member designates the case for decision by
a three-member panel under paragraph (e)(6) . . . .” 8 C.F.R.
§ 1003.1(e)(5) (emphasis added).
Various circumstances set forth in subsection (e)(6)
provide a basis for referral of an appeal to a three-
member panel. These circumstances include the need to
settle inconsistencies among rulings of different judges,
the need to establish precedent, the need to review a
decision not in conformity with the law, and the need
to review a clearly erroneous factual determination by a
judge. 8 C.F.R. § 1003.1(e)(6). While we agree with the
respondent that a “designed effect” of the case manage-
ment provisions set forth in § 1003.1(e) is to assist the
BIA in managing its caseload, we find that the provi-
sions nonetheless serve a purpose of benefit to the
alien. Though settling inconsistencies and establishing
precedent undoubtedly assists the BIA in managing

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6 No. 10-2063
See Gutnik v. Gonzales, 469 F.3d 683, 691 (7th Cir. 2006) 1
(citing Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003)).
its caseload, such action is also designed to rectify errors
below that may have unfairly prejudiced an alien. The
fact that the presence of a “need to review a clearly errone-
ous factual determination” is a basis for three-member
panel review underscores that the regulations were
designed in the interests of justice as well as efficiency.
Having found that § 1003.1(e) serves a purpose of
benefit to aliens, we are left to consider whether a viola-
tion of the regulations set forth therein prejudiced peti-
tioners. Since we have held that a streamlined review
process withstands constitutional challenges on due
process grounds , absent a violation of the applicable1
streamlining procedures, petitioners cannot be entitled
to relief.
The § 1003.1(e) streamlining procedures afford the
single member initially assigned to any given appeal
significant discretion. Prior to the enactment of sub-
section (e)(5) in 2002, a single member could only affirm
without opinion. By adopting subsection (e)(5), the
drafters intentionally expanded single member review.
Subsection (e)(5) now gives BIA members the power to
modify and remand the decisions of immigration judges
in their sole discretion. It also confers upon them the
right to explain their decisions if they don’t feel a
formulaic disposition of the appeal is appropriate. While
subsection (e)(5) provides that a single member may
refer an appeal to a three-member panel, this court has

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No. 10-2063 7
not interpreted the subsection to require such a referral.
See Gutnik v. Gonzales, 469 F.3d 683, 691 (7th Cir. 2006).
The fact that petitioners’ appeal may have been eligible
for review by a three-member panel under the standards
of the BIA’s case management plan but was instead
reviewed by a single member acting alone is irrelevant.
In our view, it is apparent from the plain language of
§ 1003.1(e) that discretion in these matters is left to
the panel member assigned to the case.
The heart of petitioners’ argument is that the decision
issued by a single BIA member in the case was not a
“brief” order, as the language of subsection (e)(5) de-
scribes. Because the decision was perhaps lengthier
than the average single-member decision, they argue
the decision could only have appropriately been ren-
dered by a three-member panel. This dogged focus
on what is or is not “brief” provides no substantive evi-
dence of abuse of discretion under the guidelines.
To require referral to a three-member panel in each case
that lends itself to more than a cookie-cutter order
would be contrary to the plain language of § 1003.1(e). It
would also “greatly weaken the designed effect [of the
regulations] by encouraging BIA members to ignore the
subsection (e)(5) procedure altogether and send anything
requiring elaboration to a three-member panel.” Id. at
692. We find that the language of 8 C.F.R. § 1003.1 is
sufficiently clear in allowing a single member of the
BIA to issue an order such as the one rendered in peti-
tioners’ case. Ergo, we cannot find that the BIA violated
the review procedures set forth in § 1003.1(e) when a
single member rendered a decision on petitioners’ appeal

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8 No. 10-2063
in his discretion without referring it to a panel of three.
Having found no violation, we need not consider whether
petitioners were prejudiced by the way the appeal was
handled.
III. CONCLUSION
While it may be prudent to require that certain
appeals to the BIA be adjudicated by a three-member
panel instead of a single member acting alone, we leave
it to the drafters of the regulations to enact such a
change if they find it to be necessary. In so doing, we
preserve the spirit of judicial restraint that has long
guided appellate review of administrative agency rules.
Petitioners’ request to have their appeal remanded for
further proceedings before a three-member panel of the
BIA is DENIED.
1-21-11

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