Sejid Smriko v. John Ashcroft, Attorney General of the United States

PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-1085
SEJID SMRIKO
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL
OF THE UNITED STATES
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
A71-685-464
Argued April 16, 2004
BEFORE: RENDELL, STAPLETON
and LAY,* Circuit Judges
(Opinion Filed: October 26, 2004)
James G. Gavin (Argued)
21 West Broad Street
Burlington, NJ 08016
Attorney for Petitioner
* Hon. Donald P. Lay, United States
Circuit Judge for the Eighth Circuit, sitting
by designation.
Peter D. Keisler
Anthony Wray Norwood
Earle B. Wilson
Michael P. Lindemann
John D. Williams
Terri J. Scadron (Argued)
U.S. Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Sejid Smriko was a lawful
permanent resident of the United States for
less than five years when he committed a
crime involving moral turpitude that, under
8 U.S.C. § 1227(a)(2)(A)(i), subjects one
to deportation. Smriko was admitted to the
United States, however, with “refugee
status,” pursuant to a section of the
Immigration and Nationality Act (“INA”)
that implements the United Nations
Protocol Relating to the Status of
Refugees. Smriko requested that the
Immigration Judge (“IJ”) terminate his
removal proceedings because, he argued,
refugee status can only be cancelled
pursuant to limited grounds specified in
the INA, none of which were met here.
The IJ agreed with Smriko that, if he still
had refugee status, he would not be
eligible for deportation. The IJ suggested,
however, that when an alien “voluntarily
chooses” to “adjust” his status from that of

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2
a refugee to that of a lawful permanent
resident, the alien loses refugee status and
its accompanying statutory protections.
Although the IJ did not provide any
supporting precedent, he denied Smriko’s
motion to terminate removal proceedings
based on this reading of the INA. The
Board of Immigration Appeals (“BIA” or
“Board”) thereafter summarily affirmed
the IJ’s decision without opinion. Smriko
now petitions for review of the IJ’s
decision, as well as the BIA’s decision to
affirm without opinion a case that he
maintains raises novel issues of statutory
interpretation.
We first examine the merits of
Smriko’s challenge, and conclude that his
view of refugee status–that it can only be
terminated pursuant to specific enumerated
grounds contained in the INA–is consistent
with the text and some of the legislative
history of the INA. We then note the
absence of any precedent counseling in
favor of or against Smriko’s proposed
interpretation, and briefly examine the
Government’s argument that an overall,
expert examination of our nation’s
immigration laws and system would
counsel against Smriko’s proposed reading
of the INA, and, instead, would suggest
that the INA “implicitly” contemplates that
refugees who achieve lawful permanent
resident status simultaneously lose their
refugee status.
Recognizing that the BIA has been
c h a r g e d w i t h p r o v id i n g e x p e rt
interpretations of our nation’s immigration
laws and that this Court must give the BIA
deference in making such determinations,
we then examine Smriko’s contention that
his case was improperly subjected to the
BIA’s affirmance without opinion process,
thereby erroneously preventing the BIA
from offering its interpretation of the
statutory provision at issue here. We then
conclude that, in most situations, we may,
in reviewing a final order of deportation,
review the BIA’s decision to issue an
affirmance without opinion in a particular
case. Here, we conclude that the Board
member charged with examining Smriko’s
case clearly acted arbitrarily and
capriciously by issuing an affirmance
without opinion, in violation of the BIA’s
streamlining regulations, with respect to a
case presenting novel and substantial legal
issues without precedent. This agency
action deprived us of a Board
interpretation of the INA that we believe
the applicable agency regulations intended
us to have before addressing the merits of
Smriko’s petition. Accordingly, we will
grant the petition for review and remand so
that the BIA may exercise its expertise and
address Smriko’s proposed reading of the
INA.
I.
The facts before us are neither
complicated, nor in dispute. Smriko is a
native and citizen of Bosnia-Herzegovina
who was admitted to the United States as
a refugee on October 20, 1994 pursuant to
8 U.S.C. § 1157. At some point thereafter,
Smriko was granted lawful permanent
resident status pursuant to 8 U.S.C. §
1159(a)(2), backdated to his entry date of

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October 20, 1994.
Within five years of his entry into
the United States, Smriko was convicted
on three occasions of retail theft offenses
in Pennsylvania and New Jersey. On
December 26, 1996, he was convicted of
retail theft in violation of 18 Pa. Cons.
Stat. § 3929(a)(1), and sentenced to pay a
fine and costs. On April 1, 1997, he was
convicted of shoplifting in violation of
N.J. Stat. Ann. § 2C:20-11b(2), and
received a suspended sentence of five
days’ imprisonment. Finally, on April 8,
1999, he was convicted of retail theft and
receiving stolen property, in violation of
18 Pa. Cons. Stat. §§ 3929(a) & 3925(a),
respectively, and was assessed costs and
sentenced to one year of probation.
The former Immigration and
N a t u r a l iz a t io n Service (“ I.N .S .” )
commenced removal proceedings against
Smriko on August 24, 1999, charging him
with removability on two statutory
grounds: (1) u nde r 8 U .S.C . §
1227(a)(2)(A)(i), as an alien convicted of
a crime involving moral turpitude
committed within five years after his
admission for which a sentence of one year
or longer may be imposed; and (2) under 8
U.S.C. § 1227(a)(2)(A)(ii), as an alien
convicted of two or more crimes involving
moral turpitude not arising out of a single
scheme of criminal misconduct. Smriko
argued that his convictions were not for
crimes involving moral turpitude, but the
IJ rejected that challenge. The IJ also
rejected Smriko’s aforementioned
argument with respect to his refugee
status, and after the BIA’s affirmance
without opinion, this petition followed.1
II.
We have jurisdiction to review a
final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). See M ulanga v. Ashcroft,
349 F.3d 123, 131 (3d Cir. 2003).
“[W]hen the BIA issues an [affirmance
without opinion] under the streamlining
regulations, we review the IJ’s opinion and
scrutinize its reasoning.” Dia v. Ashcroft,
353 F.3d 228, 245 (3d Cir.2003) (en banc).
“We review the [agency’s] legal
determinations de novo, subject to
established principles of deference.”
Wang v. Ashcroft, 368 F.3d 347, 349 (3d
Cir. 2004) (citing Chevron v. Nat. Res.
Def. Council, 467 U.S. 837, 844 (1984));
see infra note 6 (discussing the propriety
of giving Chevron deference to an IJ
decision that has been affirmed without
opinion by the BIA).
III.
Title 8, Section 1227(a)(2)(A)(i) of
the United States Code, provides, in
1The Government initially argued that
the jurisdictional bar of 8 U.S.C. §
1252(a )(2) (C ) applied here, and,
accordingly, moved to dismiss the petition
for lack of jurisdiction. The Government
has since conceded, and we agree, that §
1252(a)(2)(C) is not implicated in this
case. Accordingly, we will deny by
separate order the motion to dismiss.

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4
pertinent part:
Any alien who–(I) is
convicted of a c rime
involving moral turpitude
committed within five years
. . . after the date of
admission, and (II) is
convicted of a crime for
which a sentence of one
year or longer may be
imposed, is deportable.
Id. As noted above, Smriko was convicted
for receiving stolen property under 18 Pa.
Cons. Stat. § 3925(a).2 That conviction
unquestionably met the criteria of §
1227(a)(2)(A)(i). Smriko committed the §
3925(a) violation on December 19, 1998,
within five years of his date of admission
to the United States. Under Pennsylvania
law, given the amount of stolen property
involved here, that offense constituted a
misdemeanor in the third degree, see 18
Pa. Cons. Stat. § 3903(b)(2), which carried
a potential prison sentence of one year, see
18 Pa. Cons. Stat. § 1104(3).
Smriko argues only that his
conviction under § 3925(a) was not for a
crime involving moral turpitude. He
argues that shoplifting, the offense for
which he was convicted under § 3925(a),
is not a “crime involving moral turpitude,”
essentially because it is a prevalent crime
in our modern world, and therefore that his
violation of § 3925(a) would not qualify
him for deportation under 8 U.S.C. §
1227(a)(2)(A)(i).
We recently explain ed, in
e x a m ining § 3925(a), the v e ry
Pennsylvania statute at issue here, that
“[w]hether an alien’s crime is one
involving moral turpitude is determined by
the statute and record of conviction rather
than the alien’s specific act.” De
Leon-Reynoso v. Ashcroft, 293 F.3d 633,
635 (3d Cir. 2002). That is, “the nature of
an alien’s crime is determined by the
statute and record of conviction, not from
the specific acts surrounding the
conviction.” Id. (parenthetically quoting
Alleyne v. I.N.S., 879 F.2d 1177, 1185 (3d
Cir.1989)) (alteration omitted). While we
noted that “[t]he term ‘moral turpitude’
defies a precise definition,” we indicated
that it contains “an ‘honesty’ component .
. . , which includes: ‘[c]onduct that is
contrary to justice, honesty, or morality.’”
Id. at 635-36 (quoting Black’s Law
Dictionary 1026 (7th ed. 1999))
(additional citations omitted). After noting
that “[c]ourts have held that knowingly
receiving stolen property is a crime of
moral turpitude,” 293 F.3d at 636, and that
violation of 18 Pa. Cons. Stat. § 3925(a)
“speak[s] . . . to the honesty of a person,”
id. at 637, we determined that a violation
of that section amounts to a crime
2That section provides: “A person is
guilty of theft if he intentionally receives,
retains, or disposes of movable property of
another knowing that it has been stolen, or
believing that it has probably been stolen,
unless the property is received, retained, or
disposed with intent to restore it to the
owner.” Id. § 3925(a).

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involving moral turpitude, id. at 637. De
Leon-Reynoso clearly controls this case.
We accordingly reject Smriko’s insistence
that his § 3925(a) conviction was not for a
“crime involving moral turpitude.”3
IV.
Our task is not complete, however,
as Smriko suggests that the INA affords
him additional protection as one who
received “refugee status” upon his entry
into the United States. While Smriko
concedes that 8 U.S.C. § 1227(a)(2)(A)(i)
subjects a lawful permanent resident, such
as himself, to deportation, he argues that
the INA only allows one with “refugee
status” to be removed under limited
circumstances. He argues that “refugee
status” coexists with lawful permanent
resident (“LPR”) status, providing
additional protection, and that he cannot be
removed unless one of the limited grounds
under the INA for cancelling refugee
status is met.
A. Smriko’s Contention that Refugee
Status Coexists with LPR Status
Smriko’s contention that refugee
status coexists with LPR status and must
be terminated through a specific statutory
process before he can be removed begins
with the 1967 United Nations Protocol
Relating to the Status of Refugees, 19
U.S.T. 6223, T.I.A.S. No. 6577 (the
“Protocol”). The United States is a party
to the Protocol, which incorporates by
reference Articles 2 through 34 of the
1951 United Nations Convention Relating
to the Status of Refugees, 19 U.S.T. 6259,
189 U.N.T.S. 150 (the “Convention”), see
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,
427 (1999), and incorporates the definition
of the term “refugee” found in Article I of
the Convention. See Protocol Art. I(1) &
(2).
Under Article I of the Convention,
entitled “Definition of the term ‘refugee,’”
one ceases to be a refugee if any of six
events occur. See Convention Art. I(C).
In the case of a refugee in Smriko’s
situation, refugee status would not cease
until “he has acquired a new nationality,
and enjoys the protection of the country of
his new nationality.” Id. I(C)(3). The
United Nations High Commissioner for
Refugees has taken the position that this
provision “means that the refugee must
secure and be able to exercise all the rights
and benefits entailed by possession of the
nationality of the country” before losing
refugee status, and because LPR status
does not entitle one to the same rights and
benefits as a United States national,
obtaining LPR status is not a basis for the
cessation of refugee status under the
Convention. See Interpreter Releases,
Becoming LPR Does Not Terminate
Refugee Status, UNHCR Says, 80 No. 11
3Having determined that Smriko’s §
3925(a) conviction amounted to a
deportable offense under 8 U.S.C. §
1227(a)(2)(A)(i), we need not address the
Government’s charge that Smriko’s other
convictions amounted to deportable
offenses.

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6
Inter. Rel. 413, App. (2003) (statement
from Office of the United Nations High
C o m m i s s i o n e r f o r R e f u g e e s ) .
Accordingly, Smriko argues that the
Convention contemplates him retaining
refugee status even after he achieved LPR
status because attaining LPR status did not
give him a “new nationality” that would
terminate the need for refugee status under
the Convention.
The Refugee Act of 1980, 94 Stat.
102, brought into existence the current
definition of “refugee” in the INA, see 8
U.S.C. § 1101(a)(42)(A). The Supreme
Court has instructed that “[i]f one thing is
clear from the legislative history of the . .
. definition of ‘refugee,’ and indeed the
entire 1980 [Refugee] Act, it is that one of
Congress’ primary purposes was to bring
United States refugee law into
conformance with the 1967 United Nations
Protocol Relating to the Status of
Refugees.” I.N.S. v. Cardoza-Fonseca,
480 U.S. 421, 436 (1987). Accordingly,
Smriko insists that the definition of
“refugee” found in the INA and the
accompanying provisions for giving aliens
“refugee status,” which we address below,
are to be construed as implementing the
protections for refugees found in the
Convention.
Title 8, United States Code Section
1101(a)(42)(A), defines a “refugee” as
any person who is outside
any country of such person’s
nationality or, in the case of
a p e r s o n h a v i n g no
nationality, is outside any
country in which such
person last habitually
resided, and who is unable
or unwilling to return to,
and is unable or unwilling to
avail himself or herself of
the protection of, that
c o u n t r y b e c a u s e o f
p e r s e c u t i o n o r a
w e l l -f o u n d e d f e a r o f
persecution on account of
race, religion, nationality,
membership in a particular
social group, or political
opinion. . . .
Id. “Refugee” is used in many sections of
the INA. The provision under which
Smriko was admitted, 8 U.S.C. §
1157(c)(1), authorizes the Attorney
General “in [his or her] discretion and
pursuant to such regulations as [he or she]
may prescribe” to admit a limited number
of “refugees” annually. Refugees admitted
under 8 U.S.C. § 1157, such as Smriko,
may then become lawful permanent
residents after one year pursuant to 8
U.S.C. § 1159(a)–the key statutory
provision at issue here. This section,
permitting refugees to obtain LPR status,
speaks only of refugees who qualify being
“regarded as lawfully admitted to the
United States for permanent residence
[after one year],” id. § 1159(a)(2)
(emphasis added), and does not explicitly
provide for the termination of refugee
status upon one being “regarded as” a
lawful permanent resident. The absence of
language terminating refugee status in §

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1159(a), Smriko contends, is consistent
with the definition of refugee found in §
1101(a)(42)(A), which does not indicate
any particular time when one ceases to be
a refugee. Thus, Smriko argues, contrary
to the IJ’s suggestion, becoming an LPR
under the text of the statute provides only
additional benefits for those with refugee
status and does not terminate refugee
status, consistent with Congress’s intent to
implement the Protocol, which would
require Smriko to maintain refugee status
until achieving protection equivalent to
that of a United States national.
Other immigration law, Smriko
suggests, also contemplates refugee status
persisting after lawful permanent resident
status is obtained. While, as discussed
above, a refugee may be “regarded as” a
lawful permanent resident after one year,
see 8 U.S.C. § 1159(a)(1), 8 C.F.R. §
207.7 allows the family members of a
“refugee,” under some circumstances, to
obtain derivative refugee status if they
apply within two years of the principal
refugee’s admission, thereby utilizing the
principle alien’s refugee status even after
he or she received LPR status.
Moreover, Congress and the
Department of H omeland Security
(through its implementing regulations)
have explicitly provided for a means of
removing refugee status, consistent with
the Protocol and apart from the IJ’s
suggestion that refugee status is
“implicitly” forfeited upon becoming an
LPR. Under 8 U.S.C. § 1157(c)(4), the
Attorney General may terminate “[t]he
refugee status of any alien . . . pursuant to
such regulations as the Attorney General
may prescribe if the Attorney General
determines that the alien was not in fact a
refugee . . . at the time of the alien’s
admission.” Id. The implementing
regulations for that section further require
that the refugee be given “notice in
writing” of the Government’s intent to
“terminate the alien’s refugee status,”
along with 30 days in which to prepare
evidence to be presented at a hearing to
show cause “why the alien’s refugee status
should not be terminated.” 8 C.F.R. §
207.9. Furthermore, the regulations
indicate that “[u]pon termination of
refugee status[] the district director shall
process the alien under [the INA’s
provisions for removal].” Id. Thus,
Smriko argues, if the Government wishes
to seek his removal under the INA, the
statute and its implementing regulations
provide an explicit process for first
removing his refugee status–a procedure
not followed here–and then processing him
for removal. Had Congress sought to
remove refugee status for aliens who
become lawful permanent residents under
§ 1159(a)(1), it could have explicitly
provided for removing that status as it did
in § 1157(c)(4).4
4Smriko also urges that his
interpretation is supported by the BIA’s
decision in Matter of Medrano, 20 I. & N.
Dec. 216 (BIA 1990). There, an alien had
been granted lawful temporary resident
status through the amnesty provisions of
the Immigration Reform and Control Act

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Smriko concedes that his proposed
construction of the INA would offer those
with refugee status more protection than
other lawful permanent residents, but
argues that this was Congress’s intent in
i m pl em e nting the P roto c o l ( a nd
Convention). He agrees that under the
Convention, “[e]very refugee has duties to
the country in which he finds himself,
which require in particular that he conform
to its laws and regulations,” Convention,
Art. II, but notes that the violation of any
criminal law is not, in and of itself,
grounds for terminating refugee status
under that agreement. While he is liable
for violating criminal laws in the same
manner as a United States citizen would
be, he argues that Congress, in
implementing the Protocol, intentionally
limited the grounds for cancelling refugee
status because it intended to give refugees
heightened protection (as compared to
other aliens) in light of the traumatic
conditions they have fled. Because he
views § 1159(a)(2), allowing for those
with refugee status to become “regarded
as” lawful permanent residents, as not
terminating his refugee status, he suggests
that the Government could only have
cancelled his refugee status under §
1157(c)(4). In light of the Government not
even having attempted to cancel his
refugee status under § 1157(c)(4) or
having followed the procedure outlined
under 8 C.F.R. § 207.9 for doing so,
Smriko argues that he has been improperly
subjected to removal proceedings.
B. The Government’s Response
The Government concedes that
“[t]he statutory definition of ‘refugee’ [in
8 U.S.C. § 1101(a)(42)(A)] speaks in the
present tense [and] imposes no temporal
l i m it a t io n o n r e f u g e e s t a t u s . ”
Respondent’s Brief at 15. Moreover, the
of 1986, see 8 U.S.C. § 1255a, and then
was convicted of a crime that would
ordinarily subject an alien to deportation.
At the time of the BIA’s decision in
Medrano, the implementing regulations
providing for cancellation of temporary
resident status under § 1255a, not unlike 8
C.F.R. § 207.9 and its requirements for
removing refugee status, allowed for
cancellation where the Government
provided notice of its intent to remove and
an opportunity to offer evidence in
opposition, 8 C.F.R. § 245a.2(u)(2). An IJ
determined that the Government would
have to terminate Medrano’s temporary
resident status through § 245a.2(u)(2) prior
to initiating deportation proceedings based
upon his having committed a crime that
would ordinarily otherwise subject an alien
to deportation, and the BIA affirmed.
Citing Medrano, Smriko argues that the
procedures set forth at 8 C.F.R. § 207.9 for
removing refugee status must also be met
here before removal proceedings can be
initiated against him. Medrano, however,
is not particularly helpful here, as in front
of the BIA the Government there
“removed its opposition to the decision of
the immigration judge,” Medrano, 20 I. &
N. Dec. at 218, and the BIA accordingly
saw “no reason to disturb the immigration
judge’s decision.” Id. at 218-19.

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Government does not appear to dispute
that nothing in the INA expressly
terminates refugee status once a refugee
achieves LPR status pursuant to 8 U.S.C.
§ 1159(a)(2). Instead, the government
argues that
[i]n practice, however, all
sources of domestic law,
including the INA and its
support ing regu lations,
administrative and judicial
case law, and the practices
of the INS, the Department
of Homeland Security, and
the Executive Office for
Immigration Review, reason
that when a “refugee”
adjusts to “lawful permanent
resident” . . . status, he no
longer is considered to be in
“ r e f u g e e ” s t a tu s f o r
purposes of United States
immigration and nationality
law. Rather, he either
maintains his LPR status
and may subseq uentl y
n a t u r a l i z e t o U . S .
citizenship, or possibly, may
lose his LPR status and
become a deportable alien
under [8 U.S.C. § 1227].
Respondent’s Brief at 15-16 (emphasis
added). The Government then presents
legislative history, INA provisions,
implementing regulations, and two BIA
decisions that, it suggests, implicitly
contemplate the termination of refugee
status once an alien receives lawful
permanent resident status pursuant to §
1159(a)(2).
First, the government looks to the
conference report from the Refugee Act of
1980. The conference report indicates that
the Senate’s bill originally provided that,
absent emergency situations, refugees
would be admitted as lawful permanent
residents (with there simply being no such
thing as refugee status), while an
amendment in the House provided for “all
refugees entering the United States [to] be
admitted conditionally as ‘refugees’ with
retroactive adjustment of status to lawful
permanent residents after two years.” H.R.
Conf. Rep. No. 96-781, at 21 (1980),
reprinted in 1980 U.S.C.C.A.N. 160, 162.
The Committee of Conference adopted the
House Amendment, but “with adjustment
of status permitted after a period of one
year.” Id. The Government also looks to
a statement by Senator Edward Kennedy,
the Senate bill’s chief sponsor, who
indicated that
the Conferees compromised
on the House version and
established a new ‘refugee’
admission status–different
from either the present
‘conditional entry’ or
‘parolee’ status. This new
status will end after only
one year–rather than two
years–after w hich th e
refugee can adjust to
permanent resident status.
This one year ‘refugee’
status would also be counted

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10
towards the five-year period
required for naturalization.
126 Cong. Rec. S3756-57 (daily ed. Feb.
26, 1980). Thus, the Government argues
that “refugee status” was intended to be a
conditional status, and was intended to end
after one year.
The Government further notes that
8 U.S.C. § 1159(a) calls for, at the end of
one year, a refugee who has not yet
“acquired” lawful permanent resident
status to be “returned to the custody of the
Service for inspection and examination,”
id. § 1159(a), and processed “in
accordance with” the removal provisions
of the INA unless the alien is adjudged
“admissible” at that time and can therefore
be “regarded as lawfully admitted,” id. §
1159(a)(2). Because § 1159(a) does not
reference any special procedure for
terminating refugee status before removing
one not admissible at the end of the one
year period, the Government argues that
this provision supports the view that
refugee status is conditional and
disappears for one who is admissible and
does obtain LPR status.5
Finally, the Government looks to
two BIA decisions, neither of which
addresses Smriko’s argument that the
INA’s protections for refugees, as drafted
by Congress in implementing the Protocol,
co-exist with lawful permanent resident
status and must be terminated prior to the
initiation of removal proceedings. One
decision briefly suggests, without analysis,
that once a refugee adjusts to LPR status,
the “former” status as a refugee does “not
provide a basis for terminating [removal]
proceedings.” In re Bahta, 22 I. & N. Dec.
1381, n.2 (BIA 2000). The other suggests
that one in Smriko’s position–i.e., one who
has not had his refugee status terminated
(based on a determination that he was not
a refugee at the time of his admission)
under INA § 207, 8 U.S.C. § 1157, and
who has not been determined to be
inadmissible following his examination by
an immigration officer under INA §
209(a)(1), 8 U.S.C. § 1159(a)(1),–is not
properly placed in exclusion proceedings.
Matter of Garcia, 19 I. & N. Dec. 407
(BIA 1986). Neither decision addresses
what the government terms to be Smriko’s
“novel,” Respondent’s Brief at 9,
argument–that the INA’s provisions
pertaining to “refugee status,” read in light
5The Government also suggests that no
provision of the INA “confer[s] any
authority on an immigration judge to
engage in the sort of termination process
proposed by Smriko before adjudicating a
lawful permanent resident’s removability
from the United States.” Respondent’s
Brief at 17-18 (citing 8 U.S.C. § 1227(a)
(setting forth the classes of “deportable
aliens”)). Contrary to the Government’s
suggestion, however, Smriko only argues
that an IJ cannot conduct removal
proceedings until his refugee status has
been terminated in accordance with the
process set forth at 8 C.F.R. § 207.9, and
does not argue that IJ’s must engage in any
special “termination process.”

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11
of Congress’s intent to implement the
Protocol, provide extremely limited
grounds for terminating his refugee status,
none of which was met here.
C. Discussion
“The first step in interpreting a
statute is to determine whether the
language at issue has a plain and
unambiguous meaning with regard to the
particular dispute in the case.” Ki Se Lee
v. Ashcroft, 368 F.3d 218, 222 (3d Cir.
2004) (internal quotation marks omitted).
At issue here is whether Smriko, in
becoming “regarded as lawfully admitted
to the United States for permanent
residence,” 8 U.S.C. § 1159(a)(2), lost his
refugee status. As we have indicated, §
1159(a)(2) does not unambiguously
describe what happens to an alien’s
refugee status once he or she becomes
“regarded as” a lawful permanent resident.
Of course, “if the intent of Congress is
clear . . . the court, as well as the agency,
must give effect to the unambiguously
e x p r e s s ed i n t e n t o f C o n g r e s s . ”
Coraggioso v. Ashcroft, 355 F.3d 730, 733
(3d Cir. 2004) (quoting Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842-43 (1984)) (internal
quotation marks omitted). We are left
here, however, with Congressional intent
that is, at least to some degree, in conflict:
the goal of implementing the Protocol
versus, potentially, the desire to create a
“conditional” status for a single year. In
such situations, where there is conflicting
legislative history and “the statute is silent
or ambiguous with respect to the specific
issue,” our role is to determine “whether
the agency’s answer is based on a
permissible construction of the statute.”
Id. (internal quotation marks omitted).
Although the INA is ambiguous
with respect to Smriko’s challenge and
Smriko has marshaled at least some
legislative history in support of his
proposed construction, we are without, in
this case, an “agency answer” to examine
and potentially defer to. The BIA
answered Smriko’s “novel” challenge by
assigning his case to a single member who
affirmed without opinion the decision of
the IJ, whose decision therefore became
the final agency determination pursuant to
the agency’s affirmance without opinion
r e g u l a t i o n s , s e e 8 C . F . R . §
1003.1(e)(4)(ii). Pursuant to those
regulations, “[s]uch an order approves the
result reached in the decision below[, but]
does not necessarily imply approval of all
of the reasoning of that decision,” id.
In its entirety, the IJ’s response to
Smriko’s proposed statutory construction
consisted of the following:
[W]hile the motion for
termination would have
been granted had th e
respondent remained a
refugee, the respondent
unfortunately in this case
had adjusted his status to
that of a lawful permanent
resident, pursuant to Section
209 of the [INA, 8 U.S.C. §
1159]. The respondent

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12
voluntarily chose to adjust
his status and certainly there
are benefits and rewards in
acquiring the status of a
lawful permanent resident
and respondent has not
provided any precedent
decisions or any other legal
basis for the proposition that
a lawful permanent resident
also retains the status of a
refugee, pursuant to Section
207 [of the INA, 8 U.S.C. §
1157].
IJ’s Op. at 2. Even assuming arguendo
that an IJ’s decision affirmed without
opinion pursuant to the streamlining
regulations would otherwise be entitled to
Chevron deference,6 we recently explained
that where an “IJ offer[s] no reasoning and
cite[s] no authority . . . we have no basis
on which to conclude that the IJ’s reading
and application of [a statute is]
‘reasonable’ and therefore entitled to
deference under Chevron[].” Berishaj v.
Ashcroft, 378 F.3d 314, 327 (3d Cir.
2004). As in Berishaj, the IJ here offered
no analysis of the relevant statutory
provisions or authority to which we may
defer. Thus, we are left to review an IJ’s
6The Supreme Court has determined
that “the BIA should be accorded Chevron
deference as it gives ambiguous statutory
terms concrete meaning through a process
o f c a s e - b y - c a s e a d j u d i c a t i o n . ”
Aguirre-Aguirre, 526 U.S. at 425
(emphasis added; internal quotation marks
omitted). Citing Aguirre-Aguirre, we
recently stated in a dictum that “the BIA’s
(and hence the IJ’s) interpretation of the
INA is subject to established principles of
deference.” Coraggioso, 355 F.3d at 733
(emphasis added). Aguirre-Aguirre,
however, did not determine that the
opinion of an IJ, when affirmed without
opinion by the BIA’s streamlining process,
is entitled to Chevron deference, and it
does not necessary follow that such would
be the case.
Where, as here, the BIA has
affirmed without opinion the decision of
the IJ, under 8 C.F.R. § 1003.1(e)(4)(ii), its
affirmance “approves the result reached in
the decision below[, but] does not
necessarily imply approval of all of the
reasoning of that decision,” id. As
Aguirre-Aguirre determined that the BIA’s
case-by-case decision-making should be
accorded Chevron deference, it would
seem to be, at the very least, an open
question as to whether an IJ’s decision
affirmed through the streamlining process
would be entitled to Chevron deference.
Although the BIA has directed us to
review the IJ’s opinion in streamlined
cases, deferring to the reasoning of an IJ
from which the BIA would be free to
depart in other cases would seem highly
problematic. We need not resolve this
issue here, however, because the IJ, as
explained above, offered no analysis or
precedent to which we could defer. We
ultimately decide to remand to the BIA
rather than the IJ because that course is
required by the regulations.

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13
opinion that does not analyze the statutory
interpretation issue at hand, with a single
BIA member having issued an affirmance
without opinion that precluded the BIA
from providing its interpretation of the
statutory provision at issue, purportedly
pursuant to the agency’s “streamlining
regulations,” which we will describe in
detail below.
Smriko raises an additional
challenge, however, to the process by
which his case arrived at the Court of
Appeals without having such an agency
answer. While he recognizes that the BIA
acted within its authority to promulgate the
streamlining regulations and did not, per
se, violate his Due Process rights by doing
so, see Dia, 353 F.3d at 236-43, he argues
that the BIA erred in its application of the
streamlining regulations to his case. See
Berishaj, 378 F.3d at 331 (“Though the en
banc Court in Dia approved the
streamlining regulations over a statutory
and Constitutional challenge, it does not
follow that the regulations are not subject
to misuse and even abuse.”). He suggests
that we may review the single Board
member’s application of the streamlining
regulations, and that the Board member
erred here because, under those
regulations, his case could not have
possibly qualified for streamlining.
V.
As we recently explained in Dia,
“[t]he Attorney General promulgated the
streamlining regulations in 1999 when the
Board was faced with a crushing caseload,
the number of cases having increased
exponentially in a little over a decade.”
Dia, 353 F.3d at 235. The portion of those
regulations describing the affirmance
without opinion process employed here
provides that:
(i) The Board member to
whom a case is assigned
shall affirm the decision of
t h e S e r v i c e o r t h e
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
w e r e h a r m l e s s o r
nonmaterial; and that
( A ) T h e
i s s u e s o n
a p p e a l a r e
s q u a r e l y
controlled by
e x i s t i n g
B o a r d o r
federal court
precedent and
d o n o t
involve the
application of
precedent to a
novel factual
situation; or
( B ) T h e
factual and
legal issues

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14
r a i s e d o n
appeal are not
so substantial
that the case
warrants the
issuance of a
w r i t t e n
opinion in the
case.
(ii) If the Board member
determines that the decision
should be affirmed without
opinion, the Board shall
issue an order that reads as
follows: “The Board
affirms, without opinion, the
result of the decision below.
The decision below is,
therefore, the final agency
determination. See 8 CFR
1003.1(e)(4).” An order
affirming without opinion,
issued under authority of
this provision, shall not
include further explanation
or reasoning. Such an order
approves the result reached
in the decision below; it
does not necessarily imply
approval of all of the
reasoning of that decision,
but does signify the Board’s
conclusion that any errors in
t h e d e c i s i o n o f t h e
immigration judge or the
Service were harmless or
nonmaterial.
8 C.F.R. § 1003.1(e)(4). Smriko argues
that, under any standard of review, the
single BIA member assigned to his case
erred in subjecting it to the affirmance
without opinion process described above
because the IJ’s decision was not correct,
id. § 1003.1(e)(4)(i), her errors were not
harmless, id., his case was not “squarely
controlled” by existing Board or federal
court precedent, id. § 1003.1(e)(4)(i)(A),
and his case did not raise issues so
insubstantial that a written opinion would
be unwarranted, id. § 1003.1(e)(4)(i)(B).
The Government counters that
application of the above standards entails
a “complicated balancing of a number of
factors” only comprehensible to the single
Board member, and contends that it is
simply “not possible to devise an adequate
standard of review” for determining
whether there is precedent that “squarely
controls” the present case and whether the
issues raised are “not so substantial,”
especially so because the regulations
require the single Board member issuing a
streamlining order to provide no
reasoning, see id. § 1003.1(e)(4)(ii). We
first address the Administrative Procedure
Act’s (“APA”) “basic presumption of
judicial review. . . .” Lincoln v. Vigil, 508
U.S. 182, 190 (1993); see Calle-Vujiles v.
Ashcroft, 320 F.3d 472, 474 (3d Cir. 2003)
(“there is a strong presumption that
Congress intends judicial review of
administrative action”). We then turn to
the limited category of administrative
decisions committed to agency discretion,
and determine whether a single Board
member’s application of the streamlining
regulations is such a decision.

-- 14 of 24 --

15
A. The Availability of Judicial Review
Under the APA, any “person
suffering legal wrong because of agency
action, or adversely affected or aggrieved
by agency action within the meaning of a
relevant statute, is entitled to judicial
review.” 5 U.S.C. § 702. Decisions of the
BIA are agency actions within the meaning
of the APA. 5 U.S.C. § 701(b)(1). The
only exceptions to this general rule are
situations in which “(1) statutes preclude
judicial review; or (2) agency action is
committed to agency discretion by law.” 5
U.S.C. § 701(a). Where the governing
statute provides for “special statutory
review ,” as does § 242 of the INA, 8
U.S.C. § 1252, that is the form that the
required judicial review will take. 5
U.S.C. § 703. Under the INA, in
reviewing a final order of removal
pursuant to 8 U.S.C. § 1252, the Court of
Appeals may “review . . . all questions of
law and fact, including interpretation and
application of constitutional and statutory
provisions, arising from any action taken
or proceeding brought to remove an alien
from the United States. . . .” Id. §
1252(b)(9) (emphasis added). Similarly,
Section 704 of the APA provides: “A
preliminary, procedural, or intermediate
agency action or ruling not directly
reviewable is subject to review on the
review of the final agency action.” 5
U.S.C. § 704. Thus, our review of a final
agency action, generally speaking,
encompasses all of a petitioner’s
contentions of legal error by the agency at
any stage of the agency’s proceedings.
Smriko contends that the single
Board member charged with applying the
streamlining regulations clearly failed to
follow those regulations by subjecting his
case to the affirmance without opinion
process without the regulatory criteria for
doing so having been met. He insists that
this erroneous application of the
regulations is judicially reviewable under
the APA as interpreted by the Supreme
Court in I.N.S. v. Yueh-Shaio Yang, 519
U.S. 26 (1996). The Court there held in
the context of a review of BIA action:
Though the agency’s
discretion is unfettered at
the outset, if it announces
and follows–by rule or by
s e t t l e d c o u r s e o f
a d j u d i ca tion–a genera l
policy by which its exercise
of discretion w ill be
governed, an irrational
departure from that policy
(as opposed to an avowed
alteration of it) could
constitute action that must
be overturned as “arbitrary,
capricious, [or] an abuse of
discretion” with in the
m e a n i n g o f t h e
Administrative Procedure
Act, 5 U.S.C. § 706(2)(A).
Yueh-Shaio Yang, 519 U.S. at 32.
Based on Yueh-Shaio Yang and the
APA, it seems clear that we have
jurisdiction to review the here challenged
application of the streamlining regulations

-- 15 of 24 --

16
so long as the INA does not preclude that
judicial review and the issues so presented
are not committed to agency discretion.7
Given that the INA clearly does not
preclude review, we now turn to whether
the relevant issues are committed to
agency discretion by law.
B. Actions Committed to an Agency’s
Discretion
Section “701(a)(2) [of the APA]
makes it clear that ‘review is not to be had’
in those rare circumstances where the
relevant [law] ‘is drawn so that a court
would have no meaningful standard
against which to judge the agency’s
exercise of discretion.’” Lincoln, 508 U.S.
at 190-91 (quoting Heckler v. Chaney, 470
U.S. 821, 830 (1985)). The Government
insists that the situation before us is one of
those “rare circumstances,” likening an
individual Board member’s decision on
whether to direct that a written merits
decision on an alien’s appeal be issued to
the role of an agency accorded absolute
discretion in determining whether to
institute enforcement proceedings, see
Heckler, 470 U.S. at 831 (“an agency’s
decision not to prosecute or enforce,
whether through civil or criminal process,
is a decision generally committed to an
agency’s absolute discretion”). Heckler
i n v o l v e d t h e F o o d a n d D r u g
Administration’s (“FDA”) decision to
refrain from instituting enforcement
proceedings with respect to drugs used in
administering lethal injections. The
Supreme Court determined that there was
“no law to apply” in the Federal Food,
7In Marcello v. Bonds, 349 U.S. 302,
309-10 (1955), the Supreme Court
determined that the hearing provisions of
the APA do not apply to agency hearings
conducted pursuant to the INA. See
Ardestani v. I.N.S., 502 U.S. 129, 133-34
(1991) (“[In Marcello, we] held that the
INA expressly supersedes the hearing
provisions of the APA in light of the
background of the 1952 immigration
legislation, its laborious adaptation of the
[APA] to the deportation process, the
specific points at which deviations from
the [APA] were made, the recognition in
the legislative history of this adaptive
technique and of the particular deviations,
and the direction in the statute that the
methods therein prescribed shall be the
sole and exclusive procedure for
deportation proceedings.”) (internal
quotation marks omitted). As the
government tac itly a cknowledges,
however, “[a]lthough the detailed hearing
procedures specified by the APA do not
apply to hearings under the [INA], see
Marcello[], the judicial review provisions
do, see Shaughnessy v. Pedreiro, 349 U.S.
48, 75 S.Ct. 591, 99 L.Ed. 868 (1955).”
I.N.S. v. Doherty, 502 U.S. 314, 330
(1992) (Scalia, J., concurring and
dissenting). As Yueh-Shaio Yang holds,
the judicial review provisions of the APA,
5 U.S.C. § 706(2)(A), apply to decisions of
the BIA on issues not committed to agency
discretion. Yueh-Shaio Yang, 519 U.S. at 32.

-- 16 of 24 --

17
Drug, and Cosmetic Act against which a
court could review the FDA’s decision not
to bring enforcement proceedings. Id. at
830-31.
Under the streamlining regulations,
in contrast, in order to affirm without an
opinion, several specific criteria must be
met: (1) the “result reached in the decision
under review [must be] correct;” (2) any
“errors in the decision under review [must
be] harmless or nonmaterial; and (3) “(A)
[t]he issues on appeal [must be] squarely
controlled by existing Board or federal
court precedent and . . . not involve the
application of precedent to a novel factual
situation” or “(B) [t]he factual and legal
issues raised on appeal [must be] not so
substantial that the case warrants the
issuance of a written opinion in the case.”
8 C.F.R. § 1003.1(e)(4)(i). All three of
these criteria must be met in order for a
case properly to be streamlined.8
These criteria are clearly intended
to require the single BIA member to
determine whether the correct outcome
was reached and, if so, whether a Board
opinion would have significant value in
the context of an appeal of the matter or in
the context of other matters yet to be
adjudicated. We agree with the Tenth
Circuit Court of Appeals that “they have
nothing to do with the BIA’s caseload or
other internal circumstances.” Batalova v.
Ashcroft, 355 F.3d 1246, 1253 (10th Cir.
2004); see also Denko v. I.N.S., 351 F.3d
717, 732 (6th Cir. 2003) (“the size of the
BIA’s caseload–a factor which the Board
may be better equipped to assess–has no
relevance in deciding which cases are
appropriate for summary affirmance”).
Rather, these criteria present “the kinds of
issues [courts] routinely consider in
reviewing cases,” Batalova, 355 F.3d at
1253, and provide amply sufficient “law”
for courts to apply. The fact that they may
require the exercise of some discretion on
the part of the single BIA member that
may be deserving of some deference is, of
course, not relevant; the APA expressly
authorizes review of the exercise of
discretion for abuse.
The government’s insistence that §
1003.1(e)(4)(i) requires a single BIA
member to assess the availability of
agency resources is based upon subsection
B and its reference to whether the “issues
raised upon appeal are not so substantial
that the case warrants the issuance of a
8Heckler also noted that at issue there
was the reviewability of an agency’s
refusal to exercise its powers, as opposed
to where, as here, an agency has exercised
its coercive power over an individual. See
Heckler, 470 U.S. at 832 (“[W]e note that
when an agency refuses to act it generally
does not exercise its coercive power over
an individual’s liberty or property rights,
and thus does not infringe upon areas that
courts often are called upon to protect.
Similarly, when an agency does act to
enforce, that action itself provides a focus
for judicial review, inasmuch as the
agency must have exercised its power in some manner.”) (emphasis in original).

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18
written opinion,” id. § 1003.1(e)(4)(i)(B).
However, this language focuses upon the
lack of importance of the issues, not
backlog and the availability of resources to
produce an opinion. Moreover, the
government’s argument ignores the fact
that § 1003.1(e)(4)(i) is only one part of an
overall case management system that is
based solely on the correctness of the
result and the institutional value that an
opinion would have. Under subsection
1003.1(e), a single BIA member who is
assigned a case “shall” do one of three
things. If the result is correct and the
institutional value of an opinion would be
so low that the criteria of (e)(4) are met, he
must affirm without opinion. On the other
hand, if the case presents one of the
c i r c u m s ta n c e s e n u m e r a t e d in §
1003.1(e)(6), all relating to the
institutional value of an opinion,9 the case
will be assigned to a three member panel
for disposition. If the case is more
significant than an (e)(4) case and less
significant than an (e)(6) case, the single
BIA member will decide the merits of the
appeal by himself and issue “a brief order,
affirming, modifying or remanding” under
§ 1003.1(e)(5). In short, the regulations do
not call upon single BIA members to
evaluate the resources available at a
particular time. Rather, the regulations
themselves allocate whatever decision-
making resources the agency has, calling
upon single BIA members to follow the
criteria contained in the regulations for
allocating those resources.
Nor are we impressed with the
govern m e nt’s sugg estion th at §
9Subsection (e)(6) provides:
Panel Decisions. Cases may
only be assigned for review
by a three-member panel if
the case presents one of
these circumstances:
(i) The need to settle
inconsistencies among the
r u l i n g s o f d i f f e r e n t
immigration judges;
(ii) The need to
establis h a p r e c e d e nt
construing the meaning of
l a w s , r e g u l a t i o n s, o r
procedures;
(iii) The need to
review a decision by an
immigration judge or the
Service that is not in
conformity with the law or
with applicable precedents;
(iv) The need to
r e s o l v e a c a s e o r
c o n t r o v e r s y of m ajo r
national import;
(v) The need to
review a clearly erroneous
factual determination by an
immigration judge; or
(vi) The need to
reverse the decision of an
immigration judge or the
Service, other than a
r e v e r s a l u n d e r §
1003.1(e)(5).
8 C.F.R. § 1003.1(e)(6).

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19
1003.1(e)(4)(ii) precludes a single BIA
member from explaining his or her
decision to streamline and that this
somehow deprives a reviewing court of
law to apply. First, reading this section in
context, we understand it to preclude any
explanation of the member’s reason for
affirming the IJ’s decision so that the IJ’s
decision will stand alone as the final
agency decision. We do not read it as
precluding comment regarding the
decision to streamline, and there may be
rare situations in which the member might
find it helpful to file brief comments on
this subject. More importantly, however,
the law to be applied is provided by the
criteria of the regulations, and it will be the
rare case, indeed, where the reviewing
court, having received the administrative
record and the briefs of the parties, will
have any difficulty, without more, reaching
a decision as to whether the member was
so wide of the mark in applying those
criteria that his action can be characterized
as arbitrary and capricious.
We hold that the issues addressed
by single BIA members under §
1003.1(e)(4)(i) of the streamlining
regulations are not committed to agency
discretion and that the resolutions of those
issues are judicially reviewable.
C. The Approach of Other Courts
All but one of the other Circuit
Courts that have addressed the issue have
agreed or suggested that the affirmance
without opinion regulations contain
sufficient “law” to provide a “meaningful
standard against which to judge the
agency’s exercise of discretion.” Heckler,
470 U.S. at 830.10
10See Haoud v. Ashcroft, 350 F.3d 201,
206 (1st Cir. 2003) (“the Board’s own
regulation provides more than enough
‘law’ by which a court could review the
Board’s decision to streamline”); Denko,
351 F.3d 717 at 731 (“this argument for
committing this decision [to streamline] to
the agency’s discretion is doubtful because
there are judicially manageable standards
available to a reviewing court”); Chen v.
Ashcroft, 378 F.3d 1081, 1086-87 (9th Cir.
2004) (review ing “w hethe r either
subsection” of the streamlining regulations
applied to alien’s administrative appeal,
and remanding because “neither
subsection (A) nor subsection (B) of the
streamlining regulation permit[ted]
summary affirmance” where alien raised
“a novel legal and factual issue”);
Batalova, 355 F.3d at 1252-53 (10th Cir.
2004) (criteria in streamlining regulations
address “the kinds of issues we routinely
consider in reviewing cases, and they have
nothing to do with the BIA’s caseload or
other internal circumstances”). But see
Ngure v. Ashcroft, 367 F.3d 975, 987 (8th
Cir. 2004) (concluding that “[l]ike other
decisions committed to agency discretion
by law, th e BIA ’s stream lining
determination involves a complicated
balancing of a number of factors which are
peculiarly within its expertise, including
the size of the BIA’s caseload and the
limited resources available to the BIA”)
(internal quotation marks and citations

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20
The Eighth Circuit in Ngure parted
company from the majority approach
largely based upon its interpretation of the
“not substantial” third factor found in the
affirmance without opinion regulations.
Ngure determined that “[w]hether a
particular case ‘warrants the issuance of a
written opinion’ is necessarily a function
of the BIA’s limited resources at a
particular point in time, and the views of
members of the BIA as to whether those
limited resources should be dedicated to
writing an opinion in a given case.”
Ngure, 367 F.3d at 986. As we have
indicated, we respectfully disagree with
this view.
Ngure also gave considerable
weight to the legal proposition that an “an
agency pronouncement is transformed into
a binding norm if so intended by the
agency, and agency intent, in turn, is
ascertained by an examination of the
statement’s language, the context, and any
available extrinsic evidence.” Ngure, 367
F.3d at 982 (quoting Padula v. Webster,
822 F.2d 97, 100 (D.C. Cir. 1987))
(internal quotation marks, citations, and
alterations omitted; emphasis added). That
is, Ngure suggested that whether an
agency intended for its own compliance
with its regulation to be judicially
reviewable is relevant to whether an
agency’s action in applying that regulation
is committed to agency discretion under
the APA.
In support of this view, Ngure
quoted from the D.C. Circuit’s decision in
Pad ula . There, fac e d w ith a
pronouncement from the Director of the
Federal Bureau of Investigation (“FBI”)
regarding the FBI’s hiring policy with
respect to homosexuals and other letters
written by FBI personnel to law schools
regarding that policy, the D.C. Circuit set
forth the above maxim that these types of
“agency statements” would only be
“transformed into a binding norm if so
intended by the agency.” Padula, 822
F.2d at 100. While Padula understandably
looked to agency intent only to determine
whether an informal statement by an
agency constituted a “binding norm” such
that departure from that statement could
amount to arbitrary and capricious action,
Ngure extended its use of agency intent to
also look at whether an agency intended
for a formal regulation to be binding upon
its officers. This use of agency “intent” in
promulgating regulations would seem to
turn on its head the “basic presumption of
judicial review” embodied in the APA,
Lincoln, 508 U .S. at 190, the maxim that
agency regulations “have the force of
law,” Marshall v. Lansing, 839 F.2d 933,
943 (3d Cir. 1988), and the requirement
that “regulations validly prescribed by a
government administrator are binding
upon him as well as the citizen,” Service v.
Dulles, 354 U.S. 363, 372 (1957). See
Vitarelli v. Seaton, 359 U.S. 535, 539-40
(1959) (applying Dulles); see also Webster
v. Doe, 486 U.S. 592, 602 n.7 (1988)
(“[an] Agency’s failure to follow its own
regulations can be challenged under the
APA”). If we routinely begin to look to an
omitted).

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agency’s intent (with respect to whether its
own compliance with its regulations
should be subject to judicial review) in
promulgating regulations, as Ngure would
have us do, we may well find that agencies
never desire judicial review, and would
rather be left unchecked in the exercise of
their powers.
Contrary to Ngure’s suggestion, we
do not read American Farm Lines v. Black
Ball Freight Service, 397 U.S. 532 (1970),
as abandoning the Supreme Court’s long-
standing requirement–evidenced in Dulles,
Vitarelli, and Webster–that an agency
comply with its own regulations. We note,
however, that even assuming arguendo
that courts should look to an agency’s
“intent” to allow for judicial review in
promulgating a regulation, it is doubtful
that the agency here sought to preclude a
Board member’s application of the
streamlining regulations from judicial
review. A careful review of the
streamlining regulations indicates that they
specifically contemplate Board members
being governed by the ag en cy’s
regulations. See 8 C.F.R. § 1003.1(d)(1)(i)
(“The Board shall be governed by the
provisions and limitations prescribed by
applic able law, regulations, and
procedures. . . .”). The regulations then
indicate that with respect to, for example,
one aspect of the case management system
involving the time limits within which a
Board member is expected to adjudicate an
administrative appeal, “[t]he provisions [of
the regulations] establishing time limits for
the adjudication of appeals reflect an
internal management directive in favor of
timely dispositions, but do not affect the
validity of any decision issued by the
Board and do not, and shall not be
interpreted to, create any substantive or
procedural rights enforceable before any
immigration judge or the Board, or in any
court of law or equity.” 8 C.F.R. §
1003.1(e)(8)(vi) (emphasis added). Thus,
the regulations specifically contemplate
that the Board’s compliance with
provisions establishing time limits for the
adjudication of appeals will not be subject
to judicial review. No similar statement is
made with respect to an individual Board
member’s application of the affirmance
without opinion regulations under 8 C.F.R.
§ 1003.1(e)(4), thus undermining the
notion that the agency did not “intend” for
judicial review of the affirmance without
opinion procedure.
D. Review of the Decision To Affirm
Without Opinion
Having concluded that the decision
to streamline is judicially reviewable, the
correct disposition of the merits of the
petition to review is clear. The issue
Smriko presents is not “squarely controlled
by existing Board or federal court
precedent.” Nor, we conclude, can that
issue be disregarded as legall y
insubstantial. As the Government
acknow ledges, “Smirko’s [proposed
statutory constructions], if accepted as a
correct interpretation of the statutory
scheme, could upset final removal orders
that have been entered against thousands
of criminal aliens . . . ,” as well as affect
the outcome of thousands of proceedings

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yet to come. Given this fact, together with
the fact that Smriko’s argument is both
plausible and not directly contradicted by
statutory text, regulations, or relevant
precedent, we have no choice but to
conclude that this decision to streamline
was arbitrary and capricious.
VI.
In many situations where a petition
for review challenges a streamlining
decision, that decision will have no
material impact on a court’s exercise of its
judicial review function. In most, it will
be readily apparent that the decision is not
arbitrary or capricious. In many, the
reviewing court may simply choose to
address the merits of the IJ’s decision
without resolving the procedu ral
challenge.11 Nevertheless, we believe the
decision we here make on reviewability is
of substantial importance. It is foreseeable
that there will be a number of situations
like the one before us in which an arbitrary
and capricious decision to streamline will
hold the potential for distorting the judicial
review that both the regulations and
Congress contemplated. When that is the
case, a remand for further BIA
proceedings is appropriate.
In Haoud, for example, the First
Circuit granted a petition for review
because the affirmance without opinion
process had been used “to deny [the
Court’s] legitimate review power [because
the Court was] left without a proper basis
to . . . evaluate the Board’s own critical
analysis,” Haoud, 350 F.3d at 205. Haoud
had presented to the Board a recent BIA
case that was seemingly indistinguishable
from his own wherein the IJ had reached a
contrary result, yet the Board affirmed the
IJ’s determination in his case without
opinion. The First Circuit remanded
because the affirmance without opinion
prevented the BIA from “fully explain[ing
why it] reasonably depart[ed] from its own
precedent,” id. at 207, in violation of the
settled maxim that “[a]dministrative
agencies must apply the same basic rules
to all similarly situated supplicants,” id. at
207 (citation omitted).
Similarly, the Fifth Circuit recently
remanded a streamlined case to the BIA
where the IJ had suggested multiple
grounds for denying relief, one of which,
if selected as the reason for affirmance by
the BIA, would have denied an alien’s
asylum application as untimely and would
11The Seventh Circuit Court of Appeals
has suggested, correctly it would seem,
that, with respect to many cases that are
improperly streamlined, “it makes no
practical difference whether the BIA
properly or improperly streamlined
review.” Georgis v. Ashcroft, 328 F.3d
962, 967 & n.4 (7th Cir. 2003); see also
Denko, 351 F.3d 717, 732 (6th Cir. 2003)
(agreeing with the Seventh Circuit that
“for many streamlined cases” it makes “no
practical difference” whether the BIA
improperly streamlined review). If the IJ’s
decision is incorrect, the Court of Appeals
can simply reach the merits of that
decision and reverse.

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have prevented the Court of Appeals from
exercising jurisdiction. Zhu v. Ashcroft,
___ F.3d ___, ___, 2004 WL 1854553, *5-
*6 (5th Cir. Aug. 19, 2004). The Court
determined that the BIA’s use of the
affirmance without opinion procedure
under such circumstances created a
“jurisdictional conundrum” in that it
prevented the Court from “knowing
whether the BIA affirmed the IJ’s decision
on a non-reviewable basis, e.g.,
untimeliness, or a reviewable basis, e.g.,
the merits of Zhu’s asylum claim.” Id.
The Court remanded so that the BIA could
indicate whether relief was denied based
upon untimeliness (which would destroy
the court’s jurisdiction under an applicable
statute) or on the merits of the asylum
application (which would allow the court
to exercise jurisdiction and reach the
merits of the alien’s claim).
Where, as here, an important
portion of the statutory scheme can be read
to produce materially different results,
proper application of the streamlining
regulations is essential. We are required
to “accord[] Chevron deference [to the
BIA] as it gives ambiguous statutory terms
‘concrete meaning through a process of
c a s e - b y - c a s e a d j u d i c a t i o n . ’ ”
Aguirre-Aguirre, 526 U.S. at 425 (quoting
Cardoza-Fonseca, 480 U.S. at 448-49). If,
as happened here, an individual Board
member arbitrarily and capriciously
streamlines a case where no Board or
binding precedent accepts or rejects an
alien’s plausible interpretation of an
ambiguous statute, we are then left to
interpret the statute without the BIA
having provided its Chevron deference-
entitled “concrete meaning” to an
ambiguous statute.12 The present case
demonstrates that arbitrary and capricious
application of the streamlining regulations
can result in building case law that is
fashioned without the benefit of agency
expertise.
Here, Smriko presented a plausible
reading of the INA to the Board, raising a
substantial and important issue of refugee
law. Despite the absence of precedent
“squarely controlling” Smriko’s argument,
Smriko’s case was erroneously affirmed
without opinion. That error then prevented
the Board from offering its expert opinion
on the novel statutory construction issue
now before us. Rather than usurping the
role of the BIA and establishing a
precedent that the Board’s expertise might
counsel against, we now grant the petition
for review in light of the streamlining
error. The Board’s decision will be
vacated, and, given the “need to establish
12One might argue, we suppose, that the
individual Board member’s decision to
issue an affirmance without opinion was
an “implicit” rejection of Smriko’s
proposed statutory construction in favor of
another construction. However, the Board
member’s decision to issue an affirmance
without opinion, in and of itself, is not a
substitute for the kind of analysis of the
relevant statutes, regulations, or legislative
history, that would be required in order to
afford Chevron deference. See Berishaj,
378 F.3d at 327.

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a precedent construing the meaning of,” 8
C.F.R. § 1003.1(e)(6)(ii), the INA in this
context, we will remand the matter for
further proceedings before a three member
panel of the Board.
SMRIKO V. ASHCROFT - NO. 03-1085
LAY, Circuit Judge, concurring.
I fully concur in Judge Stapleton’s
well-reasoned opinion. I write separately
to point out that I have participated in two
Eighth Circuit cases, i.e., Wolde v.
Ashcroft, 2004 WL 1759141 (8th Cir.
2004) (non-published), and Loulou v.
Ashcroft, 354 F.3d 706 (8th Cir. 2003),
which follow the Eighth Circuit’s opinion
of Ngure v. Ashcroft, 367 F.3d 975 (8th
Cir. 2004). In Ngure, the Eighth Circuit
has stated that the Board of Immigration
Appeals’ decision to issue an affirmance
without opinion was not subject to judicial
review. I believe that the analysis by
Judge Stapleton in the instant case is the
correct analysis and I write solely to
explain my reason for joining his opinion
rather than adhering to the opinion in
Ngure.

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