United States v. 2005-02-14 | 03-70903 | NGONGO VASHCROFT | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ALPHONSINE NGONGO, No. 03-70903
Petitioner, Agency No.
v.  A73-887-791
JOHN ASHCROFT, Attorney General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2004*
San Francisco, California
Filed February 14, 2005
Before: Diarmuid F. O’Scannlain, Eugene E. Siler, Jr.,**
and Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Siler;
Dissent by Judge Hawkins
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2)(C).
**The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
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COUNSEL
Victor M. Castro, Castro & Flores-Cerul, San Jose, Califor-
nia, for the petitioner.
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Peter D. Keisler, Assistant United States Attorney General,
Civil Division; David V. Bernal, Assistant Director; and
Andrew C. Maclachlan, Office of Immigration Litigation,
Washington, DC, for the respondent.
OPINION
SILER, Circuit Judge:
Alphonsine Ngongo, a native and citizen of the Congo,
petitions for review of the decision of the Board of Immigra-
tion Appeals (“BIA”) ordering her deported as an alien who
procured her visa to remain in the United States by marital
fraud. 8 U.S.C. § 1251(a)(1)(G)(ii).1
In 1991, Ngongo entered the United States under a student
visa. In 1994, she married United States citizen Walden
Chambers, who subsequently filed a Petition for Alien Rela-
tive (“I-130”) on her behalf in 1995. He later withdrew the I-
130, claiming that the marriage was fraudulent. However, in
1996, Chambers filed a second I-130 on her behalf. Despite
Ngongo’s request, the petitions were never consolidated, so
Ngongo had two actions simultaneously proceeding through
the Immigration and Naturalization Service (“INS”).
During the deportation hearings before the Immigration
Judge (“IJ”) concerning the first petition, Ngongo and Cham-
bers offered testimony to rebut the contention that their mar-
riage was fraudulent. However, the IJ made Ngongo testify
first, with Chambers out of the room, and then allowed Cham-
bers to testify because the credibility of both spouses was at
issue.
The first petition was denied, and the IJ issued a decision
1Currently 8 U.S.C. § 1227(a)(1)(G)(ii).
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finding that the INS proved that the marriage was fraudulent.
Likewise, the INS District Director denied her second peti-
tion. Both decisions were separately appealed. On review, the
BIA reversed and remanded the District Director’s determina-
tion on the second I-130. However, the BIA affirmed, without
opinion, the IJ’s decision regarding the first petition. At that
time, the BIA did not have the appeal regarding the second
petition before it anymore, since it had been remanded to the
District Director.
[1] Ngongo argues that the BIA deprived her of the oppor-
tunity to pursue an adjustment of status when it affirmed the
IJ’s decision on the first petition before the District Director
adjudicated the pending second I-130. In certain instances, a
single BIA member, rather than a three-member panel, may
affirm IJ decisions without opinion, thereby making the IJ’s
decision the final agency determination. See 8 C.F.R.
§§ 3.1(a)(7) and (e)(4) (2003).2 Single-member affirmance is
permitted if the issue is “squarely controlled” by BIA or fed-
eral court precedent or “the factual and legal questions raised
on appeal are so insubstantial that three-member review is not
warranted.” 8 C.F.R. §§ 3.1(a)(7)(ii)(A)-(B) & (e)(4)(i)(A)-
(B) (2003). These streamlining procedures do not themselves
violate Ngongo’s due process rights. Falcon Carriche v. Ash-
croft, 350 F.3d 845, 848 (9th Cir. 2003). Because streamlining
procedures were used, we review the IJ’s decision directly. Id.
at 851. Questions of due process violations in INS proceed-
ings are reviewed de novo. Rodriguez-Lariz v. INS, 282 F.3d
1218, 1222 (9th Cir. 2002).
[2] The BIA did not err by affirming the IJ’s decision on
the first petition before the second I-130 was fully adjudi-
cated. Even if the District Director approved the I-130 upon
remand, Ngongo would not have been automatically entitled
to an adjustment of status. See Agyeman v. INS, 296 F.3d
871, 879 (9th Cir. 2002). Approval of the “I-130 petition does
2Currently 8 C.F.R. §§ 1003.1(a)(7) and (e)(4), respectively.
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not automatically entitle the alien to adjustment of status as an
immediate relative of a United States citizen.” Id. The IJ
would still have to determine whether to confer that status
upon her. Id. Moreover, Ngongo never raised to the Board,
before or after the remand of the second I-130 petition, an
argument that deportation proceedings must await adjudica-
tion of that petition. The dissent argues that Ngongo’s request
to consolidate petitions in her appeal to the BIA translates into
a request that the Board should stay ruling on the appeal in
this case until her I-130 petition was adjudicated. However,
Ngongo did not ask for, nor even suggest such a stay. Hence,
she did not give the Board the opportunity to address the
issue, and because she failed to exhaust her administrative
remedies, we have no jurisdiction to adjudicate this claim.
Further, as a matter of due process, Ngongo has not demon-
strated a defect of process that so deprived her of a full and
fair hearing as to affect the outcome of the agency’s proceed-
ings. Accordingly, the BIA’s streamlining procedures did not
violate Ngongo’s due process rights. See Falcon Carriche,
350 F.3d at 848.
Furthermore, Ngongo did not have an absolute constitu-
tional right to testify at a time of her own choosing during the
deportation hearings. Deportation hearings are civil, not crim-
inal, proceedings, so many of the protections afforded crimi-
nal defendants are unavailable to Ngongo. See El Rescate
Legal Servs., Inc. v. Executive Office of Immigration Review,
959 F.2d 742, 751 (9th Cir. 1991). To prove a due process
violation, Ngongo must show that she was prejudiced by the
IJ’s ruling that she must testify before her husband did so, and
she must show that the prejudice “may have affected the out-
come of the proceedings.” Reyes v. Ashcroft, 358 F.3d 592,
596 (9th Cir. 2004). Furthermore, the IJ was “empowered to
exercise a reasonable degree of latitude in conducting [Ngon-
go’s] deportation . . . proceedings.” Ramirez-Durazo v. INS,
794 F.2d 491, 496 (9th Cir. 1986).
[3] Because the IJ needed to compare Ngongo’s testimony
with Chambers’s testimony, requiring Ngongo to testify first
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was not unreasonable. Ngongo’s counsel still argued her case,
and she cannot demonstrate that she was prejudiced by pre-
senting the witnesses in a different order than originally
planned. Even though she contends that the IJ “dictate[d]”
how she could present her case, the IJ acted well within his
discretion. This lack of prejudice necessarily implies that
Ngongo’s counsel was not so inadequate that the outcome of
the proceedings would have been any different.
PETITION DENIED.
HAWKINS, Circuit Judge, dissenting:
This case brings Abbott & Costello’s “Who’s on First” rou-
tine to life. A woman seeks a visa as the spouse of a United
States citizen. Her husband first signs the application on her
behalf, then withdraws it saying the marriage was a sham,
only to file a second application, saying the withdrawal was
done in haste and that the marriage was legitimate all along.
In the meantime, making use of the husband’s initial with-
drawal, the government seeks and obtains a removal order
based on marriage fraud. She appeals the removal order to the
BIA. When her visa application is denied, she appeals that
also and asks the BIA to consolidate the two obviously related
matters. Without explanation, the BIA fails to act on Ngon-
go’s efforts to consolidate and her cases proceed on two
tracks, as two separate appeals. Not only does the BIA fail to
act on Ngongo’s consolidation request, it sends the visa denial
to a BIA merits panel, and, at nearly the same time, sends the
removal appeal to a single BIA member for summary affir-
mance.
If the failure to consolidate was strange, the result in the
two appeals was even stranger. The BIA merits panel reversed
and remanded the visa denial, finding “no evidence in the
record of proceedings of the petitioner’s alleged attempt to
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enter into a fraudulent marriage . . . [t]he decision to deny the
petition under section 204(c) is not supported by substantial
and probative evidence.” Some three months later, with no
mention of the pending visa determination on remand, a sin-
gle BIA judge summarily affirmed the removal order based
on the existence of marriage fraud.
Here is what the BIA’s own regulations require of it in con-
nection with the practice of single-member consideration
(“streamlining”):
The single Board Member to whom a case
is assigned may affirm the decision of the
Service or the Immigration Judge, without
opinion, if the Board Member determines
that the result reached in the decision under
review was correct; that any errors in the
decision under review were harmless or
nonmaterial; and that:
(A) the issue on appeal is squarely controlled by
existing Board or federal court precedent and does
not involve the application of precedent to a novel
fact situation; or
(B) the factual and legal questions raised on appeal
are so insubstantial that three-Member review is not
warranted.
8 C.F.R. § 1003.1(a)(7)(ii) (emphasis added).
In Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir.
2003), we explained that although these streamlining proce-
dures are not a per se violation of an immigration petitioner’s
due process rights, there may very well be instances where the
BIA’s decision to streamline a case under those procedures
violates the agency’s own statutory guidelines. See Falcon
Carriche, 350 F.3d at 854. In the context of non-discretionary
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determinations like “an asylum case or a cancellation of
removal case in which the IJ’s decision is not based on a dis-
cretionary factor,” we retain jurisdiction to review such deci-
sions to streamline for abuse of discretion. Id. at 855.
Instances where such an analysis is possible or necessary
will be rare, however, because in most cases, the question of
whether the BIA abused its discretion by streamlining will be
mooted by our decision on the merits of the case. Id.; cf.
Tokalty v. Ashcroft, 371 F.3d 613, 621 n.7 (9th Cir. 2004)
(streamlining inappropriate where case is not insubstantial
and precedent not sufficiently established for single BIA
member to summarily affirm without opinion).
If we grant relief from the IJ’s decision and remand,
streamlining will always have been an abuse of discretion;
likewise, if we uphold an IJ’s determination, any error would
be harmless and the decision to streamline will not have
affected the outcome of our decision. In both cases, relief on
the merits preempts any independent relief from the stream-
lining decision. See Falcon Carriche, 350 F.3d at 855 (noting
that in this context, “[t]he decision to streamline becomes
indistinguishable from the merits. Were we to find an error,
we would either grant relief if permitted or simply remand to
the BIA to proceed in a manner consistent with our opin-
ion.”). In contrast, this case is a unique instance in which the
analyses do not collapse; one, in fact, precludes the other.
The BIA decision to streamline Ngongo’s visa application
was made on full knowledge of the simultaneous removal
proceedings. Ngongo’s brief plainly requested that the matters
be consolidated. Despite the “substantial legal and factual
questions” raised by the remand of the visa rejection that
could potentially affect the outcome of the removal appeal,
the BIA proceeded to streamline. Compare 8 C.F.R.
§ 1003.1(a)(7)(ii)(B). In a classic case of the right hand not
knowing — or refusing to know — what the left is doing, the
BIA’s reversal of the visa denial reached factual conclusions
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directly opposed to the IJ’s findings in the removal hearing
that it summarily upheld, i.e., that there was substantial and
probative evidence of a fraudulent marriage.
If all that were not enough, it is also far from clear that the
legal issue in this appeal — whether removal proceedings
must be stayed pending the outcome of a visa petition — was
“squarely controlled” by BIA or Ninth Circuit precedent or
that any precedent had thus far been applied to similar facts.
See 8 C.F.R. § 1003.1(a)(7)(ii)(A). In fact, the government
unequivocally conceded in its brief to this court that there is
no legal authority on point.
On these facts, the BIA abused its discretion by streamlin-
ing Ngongo’s removal appeal, which should preclude us from
reaching the merits of the appeal. Although we are limited to
the Administrative Record before us on appeal, see Fisher v.
INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc), this record
contains enough evidence of another BIA panel’s contrary
factual findings and legal conclusions to place us in the unten-
able position of having to choose which facts we like best. See
Lising v. INS, 124 F.3d 996 (9th Cir. 1997) (holding that this
court is not precluded from taking judicial notice of an agen-
cy’s own records).
The majority argues Ngongo failed to exhaust her adminis-
trative remedies because she never argued that deportation
proceedings should await adjudication of her I-130 petition. I
cannot agree. The very first paragraph of Ngongo’s brief to
the BIA requests consolidation of the appeals, and argues:
Consolidation of this appeal . . . would promote judi-
cial economy and the interests of justice since
[Ngongo’s] eligibility for relief is dependent on the
disposition of the appeal of the District Director’s
decision. Failure to resolve the appeal would effec-
tively render moot the appeal of the [IJ’s] oral deci-
sion dated October 6, 1997.
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This language was certainly sufficient to put the BIA on
notice of the other closely-related proceeding, the need for
consolidation, and the potential impact of one proceeding on
the other. See Socop-Gonzales v. INS, 272 F.3d 1176, 1183-
1186 (9th Cir. 2001) (en banc). We clearly have jurisdiction
to review the BIA’s denial of the motion to consolidate and
its decision to streamline her appeal.1
Moreover, the majority misses the point. I do not think we
should rule that the deportation proceedings should have
waited on the adjudication of Ngongo’s I-130 petition, or oth-
erwise entertain the merits of her appeal. Rather, I believe a
fundamental error has occurred in the agency’s processing of
these two appeals, leading to an obviously inconsistent result.
The BIA erred by streamlining the case without sorting
through the mess it made, and we should remand to give the
BIA an opportunity to correct its own errors brought about by
its refusal to consolidate such obviously intertwined cases.
Without even asking for an explanation, the panel majority
seems content to approve the removal (deportation) of some-
one the agency says has entered into a fraudulent marriage,
while the same agency finds no proof that fraudulent marriage
exists. No responsible, sane system of justice should sanction
such a result. Alphonsine Ngongo is either eligible to proceed
with her visa application or removable because of fraudulent
marriage — she cannot be both.
1The majority suggests Ngongo should have also notified the BIA of the
decision to remand the visa petition, presumably by a motion to supple-
ment, as the briefing before the BIA was already complete when this event
occurred. We do not require an alien to exhaust administrative remedies
with respect to events that occur after briefing to the BIA is complete, par-
ticularly via discretionary motions such as motions to reopen or motions
to supplement. See Alcaraz v. INS, 384 F.3d 1150, 1158-60 (9th Cir.
2004).
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